author: Fort, J.

text:
    Henry H. Miller et al., appellants, v. Amelia K. Worrall et al., respondents.
    [Argued November Term, 1900.
    Decided March 4th, 1901.
    Filed March 5th, 1901.]
    1. The intention of a testator is to be collected from all parts of the will, and it must be clear, or else the heir-at-law will not be disinherited.
    2. The words “all the rest and residue of my property, personal and mixed, wheresoever situate, which I now own, and any or all accumulations therefrom, I give, devise and bequeath," &e., will be held to pass only personal and mixed property, and not the real estate of which the testatrix died seized.
    3. While the testatrix uses the words “all the rest and residue of my property” and the word “devise,” yet, in view of the words “personal and mixed,” immediately following “property,” they will be held to qualify and define the kind of property intended to be disposed of by the will, and no broader signification will be given to the words “personal and mixed” than their usual technical meaning conveys.
    On appeal from a decree advised by AUce-Chancellor Stevens, whose opinion is reported in lfi Diclc. Oh. Rep. ISfi.

    The bill in this case was died—first, for directions to the executors of John Jelliif, deceased, as to whether Caroline A. Riggs, one of his children, who died before the life tenant (his widow), took a vested interest in the estate of her father at his death, or would only take it in case she outlived her mother, the life tenant; and second, if she did take a vested interest at her father's death, did she devise and bequeath, by her last will, all her interest in both her real and personal estate to Amelia K. AVorrall, one of the defendants?
    The following is a copy of Caroline A. Riggs' will:

      “In ihe Name of God, Amen: -I, Caroline A. Riggs, of the City of New York, being of sound and disposing mind, do make and declare this to be my last will and testament, hereby revoking all former wills by me at any time made:

      “First. I direct my executor and executrix hereinafter named, to pay my just debts and funeral expenses.

      “Second. I give and bequeatn to the three children of my late husband, George Riggs—Edward, George C. and Amelia K.—all of the household belongings left to me by will of my late husband, George Riggs, share and share alike.

      “Tim'd. All the rest and residue of my property, personal or mimed, wheresoever situated, which I now own, and any or all accumulation therefrom, I give, devise and bequeath absolutely to my daughter, Amelia K. Riggs, the youngest child and only daughter of my late husband, George Riggs. I name, constitute and appoint my nephew, George H. McOutcheon, executor, and my said daughter, Amelia K. Riggs, executrix of my last will and testament.
    “Witness my hand this second day of May, a. d. 1895.
    “Caroline A. Riggs.”
    “Signed, published and declared by the above-named testator, Caroline A. Riggs, as and for her last will and testament, in the presence of the undersigned, who, in her presence and at her request, in the presence of each other, have signed our names as subscribing witnesses hereto.
    “Richard P. Worrall,
    “May 2d, 1895. William T. Middleton.”

      Mr. John B. Hardin and Mr. Gorllandt Parker, for the appellants.

      Mr. Frederick F. Guild, for the respondents.
   The opinion of the court was delivered by

Fort, J.

We agree with the conclusions reached by the learned vice-chancellor in the case, in so far as they relate to the construction of the last will of John Jelliff, where he holds that, under said will and codicils thereto annexed, his children living at his death took a vested interest in his estate, and that nothing occurred prior to the death of his daughter, Caroline A.' Riggs, by which she was divested of her interest.

But in the opinion of the learned vice-chancellor we find no reference to the will of Caroline A. Riggs, or anything to indicate that the peculiar phraseology as to the bequest to Amelia K. Riggs, by the third item thereof, was considered by him.

The decree appealed from contained this clause:

“Said Caroline A. Riggs, upon the death of her father, the said John Jelliff, took, and at the time of her death was entitled to, a vested undivided one-sixth equitable interest, as cestui quc trust, in all the real and personal estate of the said John Jelliff, subject, in the first place, to the life estate therein of her mother, the said Mary Jelliff, and subject to be divested by the death of the said Caroline A. Riggs leaving issue her surviving in the lifetime of her mother, Mary Jelliff; and that inasmuch as the said Caroline A. Riggs died without leaving issue in the lifetime of her mother, Mary Jelliff, the said undivided one-sixth equitable interest in the said real and personal estate never became divested, but remained the absolute property of the said Caroline A. Riggs, and at her death passed, under her last will and testament, to her personal representatives and devisees.”

To sustain so much of the above-quoted clause of tile decree appealed from in this case as decrees that, by -the will of said Caroline A. Riggs, the real estate of which she died seized passed to her devisees, we must find authority in that will, or otherwise the real estate of which she died seized will descend to her heirs-at-law, as though she had died intestate.

Lord Mansfield stated the rule to be that the testator’s “intention is to be collected from all the parts of the will, and it must be clear, or else the heir-at-law shall not be disinherited. Oates v. Cooke, Burrows 1684; Stephenson v. Heathcote, 1 Eden 43; Spearing v. Buckner, 6 T. R. 610.

No real estate of which Caroline A. Riggs died seized was devised by her will, unless it can be held to have been so devised by the third item thereof.

The third item of her will reads as follows:

“Third. All the rest and residue of my property, personal or mixed, wheresoever situated, which X now own, and any or all accumulation therefrom, I give, uevise and bequeath absolutely to my daughter, Amelia IC. Biggs, the youngest child and only daughter of my late husband, George Biggs.”

It is clear that this item of her will effectually bequeathed to Amelia K. Worrall (nee Riggs), the defendant, all the personal estate of which she died possessed (except that bequeathed by the second item of her will), and included all the interest in the-estate of her father, John Jelliif, under his will, which was, at the time of her death, personal property, and that included all-the personal property possessed by said Jelliif at his death, and the proceeds of any real estate which had been sold by the executors during the life of Mrs. Eiggs.

This personalty, in the language of the decree of the vice-chancellor, “passed, under her last will and testatment, to her personal representatives.”

But did the real estate also pass under this third item of the will?

As we have seen, the rule is that it did not so pass unless it was the clear intent of the testatrix that it should do so. We do not think that such an intent appears; on the contrary, we-think that such intent does not appear, but that the words used limit the estate which it was intended should pass, under the-third clause of her last will, to her personal estate only.

The language of her will is “all the rest and residue of my property, personal and mixed, wheresoever situate, which I now own, and any or all accumulations therefrom, I give, devise and' bequeath,” &c.

While the testatrix here uses the words “all the rest and residue of my property” and the word “devise,” still we think, in view of the use of the words “personal and mixed” immediately following “property,” that these words must be held to qualify and 'define the kind of property intended to be disposed of by the will, and that no broader signification can be given to the words-“personal and mixed,” as here used, than their well-recognized' meaning conveys, and if there be doubt, that doubt must be resolved in favor of the heir as against one who claims as a devisee.

The testatrix, in using the words “personal and mixed,” is using' technical words, and by well-settled rules of construction they must be given their technical meaning.

Mr. Justice Van Syckel, in construing words in a will in a case-decided at the present term of this court, uses this language: “In construing wills it must be presumed that words are used in their appropriate technical sense. * * * Otherwise there will' be no uniform rule of interpretation and no stable signification-given to language which has a definite meaning in law.” Chandler, Executor, v. Thompson, Guardian, 17 Dick. Ch. Rep. 728.

Nor will the contention that the words “all the rest and residue •of my property,” when taken in connection with their limitation by the words “personal and mixed,” be deemed to devise realty.

The words “all the remainder of the rents, profits and residue of my estate” were held not to be words which would convey real •estate when used in the manner that the testator had employed them. Den v. Snitcher, 2 Gr. 53.

The words “residue of my estate,” though words of sufficient breadth to devise real estate when so intended, will be held to be used in a restricted sense when that intention appears from other words used or direction made in connection with their use in the will. Birdsall v. Applegate, Spenc. 244; Den v. Snitcher, supra; Bullard v. Goffe, 20 Pick 252.

The word “property,” when used in connection with “property, money and effects,” has a restricted import, and does not embrace real estate. Beach Wills § 261; Brawley v. Collins, 88 N. C. 605.

The words “personal and mixed” by no construction or recognized legal signification can be extended so as to devise real estate. It will be unnecessary to define “personal.”

“Mixed property” is said to be “that which, though falling under the definition of things real, is attended with some-of the legal qualities of things personal. Also property which, though falling under the definition of things personal, is attended with some of the legal qualities of firings real.” Am. & Eng. Encycl. L. 697.

A better definition is as follows: “That kind of property which 'is not altogether real, nor personal, but a compound of both. Heirlooms, tombstones, monuments in a church and title deeds to an estate are of this nature.” 2 Bouv. Dict. 190; 1 Shars. Bl. (Book 2) 428.

Real estate does not pass under a bequest “of the rest, residue :and remainder of my estate, consisting in ready money, plate, .jewels, leases, judgments or in any other thing whatsoever or wheresoever.” Timewell v. Perkins, 2 Atk. 102.

Where the words “residue of my estate” appear, from the context of the will, to have been confined to personal property only,, they will not be held to extend to real estate. Cruise Dig. (tit. "Devise”) c. 10 § 76.

It is quite material in construing a devise of “all my estate,” by a testator, whether he has made previous mention of land of which he was seized in fee. Cliffe v. Gibbons, 2 Ld. Raym. 1324.

The clause “all my stock in trade, household goods, wearing apparel, ready money, and every other thing, my property of what nature and kind soever,” was held not to pass land, being controlled by indications which render the intent of the testator-uncertain. Doe v. Rout, 7 Taunt. 79.

The rule deducible from all the cases is that if there be uncertainty as to the intent of the testator to devise the real estate in his last will, it will not be construed to do so; in fact, the rule-should be stated in this wise, that there must appear from the-words used by,the testator a clear intent to devise his real estate, otherwise the heir-at-law will not be disinherited.

We do not think that by the words “all the rest and residue of my property, personal and mixed, wheresoever situated,” &e., used by Caroline A. Riggs in her last will, that there is such freedom from uncertainty as to her intention as to make it clear that, she intended to devise her real estate by the third item of her will, but, as to that, we think she died intestate, and that her real estate descended to her heirs-at-law, and to this extent the decree-appealed from should be modified. Eor this purpose the decree-is reversed.

For reversal — Trie Chancellor, Chiee-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson,. Krueger, Adams, Vredenburgi-i, Voori-iees—12.

For affirmance—None.


source: Caselaw Access Project

license: Public Domain

text:
    Bertrand Adoue and Joseph Lobit, partners, &c., respondents, v. Mary H. Spencer, individually and as administratrix, &c., appellant.
    [Argued November 26th, 1900.
    Decided March 28th, 1901.
    Filed April 3d, 1901.]
    1. A conveyance of land by a husband to his wife by deed through a third party, to secure her for the principal of money of her separate estate taken and used by him, will be decreed to be a mortgage, and good as .against creditors to the extent only of the amount of the principal so received by him, with interest thereon from the date of the delivery of such •deed.
    2. Where such a conveyance is attacked by creditors as voluntary or fraudulent, the burthen is on the wife to establish that her husband took and used her separate estate; but when that fact is established, whether such taking was with or without her consent, the burthen then shifts, and those claiming that such taking and use was by gift of the wife must establish such gift to the husband.
    3. The presumption of law is against a gift by the wife of the principal of her separate property to the husband, and the burthen of proving it is upon him who asserts it.
    4. The rule here stated does not apply to the income of the wife’s separate estate. A gift of that may be implied from its receipt by the husband.
    5. The statutes in the several states as to the property of married women, when as broad as the Texas statute or our own, have entirely overthrown the common law rule of the merger of the wife’s entity and estate, upon marriage, in the husband.
    6. It is unnecessary, under these statutes, that a wife shall take from her husband a promissory note, or other acknowledgment, upon handing him money of her separate estate, to be able to establish that such taking by him was a loan. In the transaction she will be considered as a feme sole, and as if a stranger to her husband.
    7. In establishing her claim against her husband’s estate, she is not more competent to testify to transactions with or statements by the testator or intestate, when the executor or administrator of her deceased husband is a necessary party, than any other witness.
    On appeal from a decree advised by Vice-Chancellor Pitney, •whose opinion is reported in lit- Diclc. Gh. Rep. 281, where the .facts are sufficiently stated.

      Mr. Frank Bergen, and Mr. William T. Austin (of the Texas bar), for the appellant.

      Mr. Sherrerd Depue, and Mr. John Neethe (of the Texas bar), for the respondents.
   The opinion of the court was delivered by

Fort, J.

• This was a creditor’s bill to set aside a conveyance made by John C. S. Spencer to his wife, passing the title through one Coote. The deed conveyed a one-half interest in property in the city of Elizabeth, in this state. At the time of the conveyance Spencer and his wife were domiciled at Galveston, Texas. The deeds were both dated September 6th, 1896, and the one from Spencer to Coote was acknowledged September 30th, 1896, and the one from Coote to Mrs. Spencer January 30th, 1897. Both deeds were recorded on February 1st, 1897.

Mr. Spencer died in Texas in June, 1897.. Letters of administration were taken out there, but his estate was admittedly insolvent at his death. On September 6th, 1898, the orphans court of Union county, in this state, after notice and hearing, granted letters of administration on his estate to Edward Nugent. The complainants in this case presented to the New Jersey administrator a duly verified claim against the estate of said John C. S. Spencer, which, after notice to the counsel of Mrs. Spencer, the widow, and the Texas administrator, and no objection being interposed on her behalf, the same was allowed by the administrator.

The claim was upon a.note of Ladd & Company, of $12,000, with a collateral note of John C. S. Spencer given therewith. As to the legality of this claim and its rightful allowance we agree with the conclusions reached by the learned vice-chancellor. We also agree with him in his finding that, under the law of this state, a creditor whose claim has been allowed by an administrator is in a position to maintain a creditor’s bill to set aside a conveyance of land by the intestate, which it is alleged was conveyed to defraud creditors.

The case cited by the vice-chancellor was determined in this court,, and settles the law upon that subject in this state. Haston v. Castner, 4 Stew. Eq. 697.

The consideration stated in the conveyance from Spencer and wife to Coote and from Coote and wife to Mary EL Spencer was $1.

The learned vice-chancellor throughout his opinion seems to have treated these conveyances as deeds, while upon any theory that would allow Mrs. Spencer to sustain the conveyance to her, her deed must be treated as a mortgage. It surely, upon the most favorable view to be taken of the transaction in her behalf, was only security for an alleged indebtedness due from her husband to her arising out of moneys of hers which he had appropriated to his own use or which she had advanced him, either with or without an express promise to repay, as her evidence and the facts disclosed establish. On this state of facts, even if the transaction were not fraudulent, the creditors would be entitled to an equity in this property, beyond the amount that was justly due to Mrs. Spencer from her husband for money she had advanced and for expenses for betterments and taxes which she may have paid, loss rents received since the conveyance to her. That conveyances to secure debts are mortgages is undoubted. Judge v. Reese, 9 C. E. Gr. 387; Melick v. Creamer, 10 C. E. Gr. 429; Cake v. Shull, 18 Stew. Eq. 208; Winters v. Earl, 7 Dick. Ch. Rep. 52, 588.

The decree in this case is that there is due to the complainants from the estate of John C. S. Spencer, deceased, the sum of $13,268.60, which is decreed to be a lien upon the lands in the complainants’ bill mentioned, and the deeds in question (above recited) are set aside, annulled and made void as against the said debt of the said complainants, and the defendant is to pay costs.

The one-half interest in the property in question is admittedly of less value than the amount decreed complainants, and therefore the defendant, Mrs. Spencer (the appellant here), takes nothing by the conveyance of her husband to her. That this decree must be reversed and modified to the extent of the taxes or assessments or both, paid upon the property by Mrs. Spencer, together with the cost of the betterments placed thereon in excess of rents received, if any, we are all agreed. The case shows that on August 10th, 1897, Mrs. Spencer paid for taxes and assessments then upon the property $917.0.3. This was paid within two months after her husband’s death and within about six months after the conveyance made to her was recorded.

The amount of these taxes and assessments was admitted to have been paid by Mrs. Spencer, as appears in the record, and a statement of them was marked “D 1,” in evidence by consent.

I also think this decree should be reversed for another reason, namely, that there may be an ascertainment, either by the vice-chancellor or by a reference to a master, of the amount of any money or other personal property, or its proceeds other than income thereon, which came to Mrs. Spencer by gift, devise or descent, and which was received by her husband, either from her or from some other person for her account, and which was taken and used by him. To the extent that he received such funds I think he could, and, indeed, in law and morals should, secure her as he did by the conveyance of September 6th, 1896. Whatever that amount may be should also be decreed to be a prior lien to that of the complainants.

I agree with the learned vice-chancellor that the burthen is on Mrs. Spencer to establish the consideration for the conveyance to her, and that it is only good as a security to her for the amount which she can establish was received by her husband from her, or others for her, from the principal of her separate estate, and which had come to her by gift, devise or descent, as aforesaid; but I do not agree with him in his opinion where he seems to indicate, if not directly hold, that the burthen is on Mrs. Spencer to also show that the funds which thus came to her husband’s hands were not given to him by her, but were a loan, for which he had agreed to repay or secure her. My reasons for this last position are twofold:

First. That, by the terms of the Married Women’s act of the State of Texas, when a husband takes the principal of property which comes to his wife by gift, devise or descent, he takes it charged with a trust to administer it for the wife, and that to establish the taking in any other manner and a non-liabiiity to account therefor to her, he or those claiming against her must show an express agreement by her to that effect; and

Second. That the principal of the separate property of a married woman coming into the hands of her husband from her, or others acting for her, after the passage of a Married Women’s act, where its terms are as broad as the Texas act or our own, is to be treated as if she were a feme sole at the time of its delivery to him, and the law will not presume that such money thus taken by the husband from her, with or without her consent, was a gift to him, and the burthen is upon him to establish that it was a gift, and is governed by the same legal rules of liability as if received from a stranger.

The Texas statute applicable to this case is as follows:

“Art. 2967. All property, both real and personal, of the husband, owned or claimed by him before marriage, that acquired afterward, by gift, devise or descent, as also the increase of all lands thus acquired, shall be his separate property. All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward, by gift, devise or descent, as also the increase of all lands thus acquired, shall be the separate property of the wife, but during the marriage the husband shall have the sole management of all such property.
“Art. 2968. All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, shall be deemed the common property of husband and wife, and during the coverture may be disposed of by the husband only.”

Tbis is a very comprehensive statute, and the last clause in article 2967, “but during the marriage the husband shall have the sole management of all such properly,” is particularly forceful upon the question here at issue.

The statute expressly says all the property belonging to the wife before marriage and that acquired after “by gift, devise or descent” shall be her separate property, and the statute, by giving the husband during marriage the right to the sole management thereof, impresses upon all such property a trust to manage it for the wife, and the imposition of the duty to manage excludes a presumption of title passing or the property vesting in the husband or merging in his estate. When he takes property under that statute he takes it to manage, not as his own. By the statute the wife’s consent is immaterial. She cannot prevent his taking it if she were to so desire, and when he thus-takes he takes'just the rights the statute gives and no more. At his death his executors must account for his stewardship. If he has lost or misappropriated any of the property so taken he may secure the wife therefor out of any funds or property he may possess.

Nor does article 2968, as to the common property of the husband and wife, above quoted, change the effect of article 2967, because property coming to the wife during marriage by “gift, devise or descent” is expressly excepted out of the common property.

The conferring by statute or by private contract upon another of the “sole management of all such property” could by no known method of construction, as it seems to me, be converted into a right to divert to one’s own use. The statute fixes the husband’s obligation to account for all funds which came to his hands to manage as a sacred trust—all the more sacred because of the confidence of the marital relation.

The authorities which will sustain the second proposition above stated will apply with equal force to the first, and I shall proceed to consider the second before citing them.

The statutes now existing in the several states as to the property of married women have entirely overthrown the common law rule of the merger of the wife’s entity and estate, upon marriage, in the husband. It is no longer necessary to hold that because a husband takes his wife’s property into his possession that she is remediless. Nor is it necessary, under the Texas act, above quoted, that she take from her husband a promissory note or some other acknowledgment that the handing him the money was not a 'gift. There seems no reason in common sense that when a husband takes of the principal of his wife’s estate into his possession that he should be presumed to acquire it as his own unless she has exacted some evidence in writing, or an express agreement by him, otherwise. There are many reasons why the rule should be the reverse of this, and that such a taking should be deemed a loan to him unless he prove otherwise. In equity, surely no other rule should obtain. Even, at common law, a wife in equity might have a separate estate over which she had the jus 'disponendi as if she were a feme sole. Caton v. Rideout, 1 McN. & G. 599; Jones v. Clifton, 101 U. S. 225.

If it is clear that a husband has taken the principal of his wife’s separate estate, with or without her consent, but without an express gift or clearly implied intent to give, equity should hold it not a gift, but to be treated in the same manner as the money or property of any other person, taken by the husband under like circumstances, would be treated.

The true principal is stated by Mr. Justice Field, of the United States supreme court, in speaking for that court, as follows: “We are of opinion that * * * there would be no presumption. since the passage of the Married Women’s act, that she intended to give to her husband the moneys she' placed in his hand any more than a gift would be inferred from a third person, who, in like manner, deposited money with him. * * * We think that whenever a husband acquires possession of the separate property of his wife, whether with or without her consent, he must be deemed to hold it in trust for her benefit in the absence of any direct evidence that .-she intended to make a gift of it to him.’’ Stickney v. Stickney, 131 U. S. 227.

The Married Women’s act of the District of Columbia, upon which this decision was founded, is very similar to that of our own state, and not as clear and full as that of Texas.

The supreme court of Pennsylvania has stated the proposition in some of its phases even more strongly than the United States supreme court. It says (Mr. Justice Strong) : “When the act of assembly declares, as it does, that all property, real, personal and mixed, which shall accrue to any married woman during coverture by will, descent, deed of conveyance or otherwise shall be owned, used and enjoyed by such married woman as her own separate property; when the leading purpose of the act is to protect the wife’s estate by excluding the husband, it is impossible for us to declare that mere possession of it by the husband is proof that the title has passed from the wife to him. After it has been shown, as it was in this case, that the jmoiDerty accrued to the wife by descent from her father’s brother’s estate, the presumption necessarily is that it continued hers. In such a case it lies upon one who asserts it to be the property of the bus-band to prove a transmission of the title, either by gift or contract for value, for the law does not transmit it without the act of the parties. If mere possession were sufficient evidence of a gift, the act of 184S would be useless to the wife. Nothing is more easy than for the husband to obtain possession, even against the consent of the wife; and when he obtains it with her consent, it can be at most but a slight evidence of a gift.”

This case has since been followed in Bergey’s Appeal, 60 Pa. St. 408.

In passing upon a like case, the supreme court of Michigan says: “The usual rule is that if one gives another money at his request, the law will imply a promise to repay, and we see no injustice in applying the rule against a husband where there are no circumstances tending to show a different understanding between the parties. This court has frequently held that the presumption of the law is against a gift by the wife to the husband, and the burden of proving it is upon him.” Sykes v. City Savings Bank, 115 Mich. 321.

The facts in the Michigan case were more strongly in the favor of the husband’s creditors than here. In that case the wife testified that she saw her husband was failing in business right along and losing money, and she told him she wanted her money back, and he gave it to her. He gave her $3,000 in cash, and the wife at once deposited the $3,000 in the City Savings Bank in her own name. It also appeared that there was no express promise to repay the wife, and it further appeared that a part of the money she had let her husband have was from the rents of a house that her husband had given her. She claimed she had given the husband the money from time to time to use without any promise to return it whatever, and yet, as against the creditors of a husband who thus gave his wife this money to secure her, the court held that the husband could lawfully prefer her, and repay her the money he had received from her, without any promise to repay the same at the time of the advancing thereof.

In the same state, in another case, it was said: “Something other than use and possession by him (the husband) permitted by her (the wife) must be shown -to establish a gift.” White v. Zane, 10 Mich. 333.

The Tennessee chancery appeal court has lately held: “A husband having received money from hi's wife’s general estate may, in consideration thereof, create an indebtedness to her by agreeing to repay her, and may subsequently pay her by conveying property to her to the exclusion of his other creditors.” Sanford v. Allen, 48 S. W. Rep. 183.

The supreme court of Kentucky, in a case 'where the husband was insolvent, and when so conveyed to his wife real estate as security for money of her’s he had used, says: “While such conveyance was in payment of a debt which the grantor could not be compelled to pay, it is not strictly a voluntary conveyance, the grantee having an equity. She had a meritorious claim against her husband that, in equity and good conscience, he should repay her, although, of course, he could not be compelled to do so:” Poynter v. Mallory, 45 S. W. Rep. 1042.

The Missouri supreme court holds that where a husband had reduced his wife’s personal property to possession before the passage of the Married Women’s act of 1875, as he had the legal right to do, that after the passage of that act thé fact that he had done so would, to the extent he had so done, furnish a sufficient consideration for a valid deed of gift of land to the wife to make restitution of funds so taken. Scrutchfield v. Sauter, 119 Mo. 615.

The supreme court of Pennsylvania, in Hauer’s Estate, 140 Pa. St. 420, 425, clearly states the rule here elucidated, and the distinction between the presumption as to a gift by the wife of her separate estate as between principal and income used by her husband as follows: “But a broad and plain distinction is drawn by the cases between the receipt by the husband of the income of his wife’s separate property and the receipt by him of the principal or corpus of her estate. A gift of the income may be implied from his receipt of it with her consent, but a gift of the principal will not be presumed from her mere acquiescence in his receipt and use of it.”

That the property received by Mrs. Spencer was her separate property, under the Texas statute, is established by the decisions of that state.

Property received by the wife by donation is separate property. Fish v. Flores, 43 Tex. 344.

Property coming .to the wife by gift, devise or descent is separate property. Herschell v. Blum, 2 U. C. Tex. 265; Ezell v. Dodson, 60 Tex. 331.

A husband may convey property to his wife in Texas in payment of money previously used by him, -and thereby make the property so conveyed her separate property. Ross v. Kornrumpf, 64 Tex. 394.

Even a voluntary conveyance by a husband to his wife of community property is good, and makes it her separate property. Lewis v. Simon, 72 Tex. 475; Hall v. Hall, 52 Tex. 299.

A husband may not sell his wife’s personal property which comes to his hands to manage. Kempner v. Comer, 73 Tex. 196, 201.

It will answer no useful purpose to further extend this opinion by reference to other authorities. Since 1848, which was about the year of the beginning of the statutory creation of the wife’s separate property rights, the trend of the decisions in all the states has been toward the rule here contended for. It can safely be said that with scarcely an exception the supreme court of the United States and the courts of last resort of all the states have held that as to the principal of the wife’s separate estate, taken into the possession of a husband and used by him, he or his personal representative is bound to account to her, and that to sustain a refusal to so do, or to relieve from equitable liability to so do, the burthen is on him to establish that he received such property as a gift from her. Ilis mere possession of it will not imply such a gift any more than it would from a like receipt from any other person. There appears no good reason either in law or morals why such should not be the rule. Under the Texas statute above cited, such a taking clearly can raise no presumption of a gift, .for the statute expressly declares that it shall be a taking to manage; that it was taken by the husband in any other way he must prove by the preponderance of evidence in the cause, and equity under such a statute should guard the wife’s right scrupulously.

To the extent that the principal of the separate statutory estate of the defendant in this ease, which came to her by gift, devise or descent, was taken and used by her husband, we hold that she is, entitled to a lien, by way of security therefor, upon the property described in complainants’ bill, there being no proof in the case that as to such property she intended the same to be a gift to her husband when he took it, and therefore the legal presumption, under the Texas statute, is that he came into the possession thereof only to manage it. What amount of the $41,391.02 set up in the defendant’s answer, or established by the proofs in the cause, came to the defendant by gift, devise or descent under the statute, and was of the principal of her separate estate, thus acquired, will have to be determined by the chancellor or upon reference to a vice-chancellor or a master. The decree for this reason also is reversed that such ascertainment may be had.

From the fact that both the complainants and the defendant were domiciled in Texas, the Married Women’s acts and the decisions thereon of that and other states have been largely referred to, but it is not intended thereby to imply that the rule in this state is not the same. The legal rules governing the rights of a wife against her husband or his personal representatives, as to the principal of her statutory separate estate taken and used by him, is not different in this state from that shown to be the rule in other states. Mr. Justice Magie, speaking for this court, in Cole v. Lee, 18 Stew. Eq. 779, 785, says:

“It is well settled that, on proof that a husband has received his wife’s money, a court of equity will compel him and his representatives to account to her at least for the principal received, and they can only discharge themselves by showing that the husband disposed of the money according to the wife’s directions, or that it was a gift to him. * * * Such liability to account for. the wife’s money would afford a consideration sufficient to support a mortgage made by the husband, to a third person for the purpose of being transferred to the wife for her security.”

In the case just cited the facts were that in 1855 the wife received $1,600 as her share of her father’s estate and in 1865 about the same amount from the same source, and on each occasion she let her husband take $1,500 of this money.

On this point Mr. Justice Magie says: “I conclude that the evidence proves that Mulford Cole [the husband] received $3,000 of his wife’s money at the times named.”

The mortgage was given to her some years after her husband took the money, and creditors whose claims existed at the time the mortgage was made tiled the bill in the case to set aside the mortgage as tending to delay and. hinder them. If the consideration of the mortgage was not good, it was void as against creditors. There was no pretence that, at the time the money was handed to the husband, there was any note, memoranda or other acknowledgment given to the wife that it was a loan, and the court says:

“Their case [the creditors] in this respect can only stand on the ground that the mere fact that Mulford Cole obtained this money from his wife raises a presumption that she gave it to him, which presumption will prevail unless she overcomes it by proof that the transaction was a loan. Such a presumption does not arise in favor of a husband or his representatives, at least as to the principal of his wife’s money. * * * But when the fact is established beyond dispute of the reception by the husband of the wife’s money, creditors can occupy no better position in the contest than the husband or his representatives.”

Strenuous objection was made in this case against the admission of the evidence of the defendant, Mrs. Spencer, as to the statements by her husband to her as to,this transaction. The vice-chancellor refers to this matter in his conclusions in the following language: “She [Mrs. Spencer] went into an elaborate statement of conversations between her and her husband as to his being indebted, to her for these advances for their living, and her urging him to convey the Elizabeth property on account of it, and of promises on his part to do so. Seasonable objection was made to her testimony in this respect, and elaborate'argument was had as to. its competency. Eor the present purposes I shall consider it as competent and deal with it as such.”

It is quite apparent that the learned vice-chancellor doubted its admissibility, but holding the view he did upon the law and facts upon the other branches of the case, deemed it unnecessary to decide it, but in view of the fact that the case is to be reversed on other grounds, that it may be reconsidered to determine the amount for which the deed to Mrs. Spencer may be held by her as security for her advances, the question of the legality of her evidence is quite material.

We think that as to statements by or transactions with the deceased, she was not a competent witness.

This suit was to charge the property of her deceased husband, on which she held a mortgage, with the debt of the complainants. The extent of the husband’s interest depended upon whether her mortgage was 'or was hot valid, and for what amount valid. The bill in this case was filed by a creditor, and the administrator of the deceased husband was a party. The estate of the deceased being insolvent, and the allegation being that this property here sought to be charged was liable for his debts, made the administrator a proper, and, it seems to us, a necessary party. The bill in this case does not state that it is filed by the complainants for themselves and other creditors, but still such is its effect, and if there be any equity in this property, all creditors can come in at the foot of the decree and claim their rights to distribution through the administrator, who would undoubtedly take any surplus proceeds of the sale of this property, and the whole proceeds should be decreed to be paid to the administrator for pro rata distribution to creditors who may prove their claims. The deed to Mrs. Spencer states $1 as its consideration; that is merely nominal, and in proving her claim under it, treating it as a mortgage, she stands as a party to an action against the representative of her deceased husband, and is prohibited by our statute from testifying as to any transaction with or statement by him. P. L. of 1900 p. 363 § 4.

In construing this statute, this court has said: “It is apparent that the object of the legislature is to be primarily regarded, and that the object is to close the mouth of a party whose interest is antagonistic to the estate of a deceased person, in regard to those transactions in which the deceased bore a part, and concerning which he, if living, would be the most important, perhaps the only, witness beside the opposing party.” Smith v. Burnet, 8 Stew. Eq. 314, 322.

To adopt the language-of Mr. Justice Dixon in the case of Dickerson v. Payne’s Administrator, in an opinion filed at the present term of the supreme court, “manifestly, in the transactions to which this plaintiff testified, the deceased bore a part, * * * and, if living, would be the most important,' perhaps the only, witness against her. He must have been present when many of her acts, if she testified truly, were performed, and as to those matters, if she testified falsely, he could, as a witness, have directly contradicted her. These are the conditions in which the legislature did not intend to legalize the testimony of a party against an adversary representing a testator or intestate.”'

We therefore think the testimony of Mrs. Spencer, in so far as it related to statements by or transactions with the deceased, should be excluded from the evidence in this cause, because inadmissible for any purpose.

For reversal—The Chief-Justice, Van Syckel, Collins, Fort, Garretson, Hendrickson, Bogért, Adams, Vreden-BURGI-I, VOORHEES—10.

For affirmance—None.


author: Garretson, J:

text:
    Joseph Tate, petitioner, v. Samuel J. Macdonald, respondent.
    [Argued at November Term, 1900.
    Filed March 11th, 1901.]
    A respondent to a petition filed praying for an accounting of money received by the respondent and for the paying over of the same, is entitled to a notice of all hearings in the cause.

      On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in Tate v. Field, 15 Dick. Ch. Rep. 42.

      Mr. Samuel J. Macdonald, pro se.

   The opinion of the court was delivered by

Garretson, J:

This is an appeal from an order advised by a vice-chancellor requiring Macdonald, the appellant, to forthwith pay to the clerk in chancery $524.83.

A petition was filed in the court of chancery by Tate January 8th, 1900, praying that Macdonald account for certain moneys received by.him as solicitor of the petitioner in a foreclosure suit, wherein the final decree found these moneys due for waste committed on the mortgaged premises. Upon filing the petition an order to show cause why the prayer of the petitioner should not be granted was made. To this petition the respondent filed an answer on the return day of the order to show cause, February 2d, 1900. Without any notice to the respondent of an application for an order of reference, and without any order of reference, the petitioner, on the 20th of March, 1900, gave notice of a hearing on March 26th, 1900. At the time for the hearing objection was made on behalf of the respondent that no order of,reference had been made and no proper notice of hearing had been given. The hearing, however, was proceeded with, but the respondent took no part therein. The hearing seems to have been adjourned to April 2d, 1900, and on the same day an order was signed continuing the hearing to April 26th, 1900. On the 26th of April, 1900, the hearing was adjourned, in the presence of the respondent, to May 3d, 1900, and if the vice-chancellor did not appear on that day, to be adjourned to May 10th, 1900. Nothing seems to have been done either on May 3d or May 10th.

The record further shows that on the 17th day of May the vice-chancellor heard the evidence of witnesses, who were sworn and examined by counsel of the petitioner, and that that was the last examination of witnesses and the last hearing in the canse. It does not appear that that was a day which had been set down for the hearing, or to which the cause had been adjourned, or of which the respondent had notice, or that he had consented to a hearing on that day. The respondent should have had notic'e of this hearing.

We therefore think that the order should be set aside and the matter referred back to the court of chancery, so that the respondent may have an opportunity to appear and present his defence.

For reversal—The Chiee-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Bogert, Krueger, Adams, Vredenburgh, Voorhees—12.

For affirmance—None.


author: Adams, J.

text:
    Robert W. Lyle, complainant, v. Staten Island Terra Cotta Lumber Company, defendant.
    [Argued December 3d, 1900.
    Decided March 4th, 1901.
    Filed April 1st, 1901.]
    1. Upon distribution of the assets of an insolvent corporation, the right of a preferred creditor to full payment outranks the right of a general creditor to paitial payment.
    2. In computing the dividend due to general creditors, the claims of preferred creditors are to be excluded from the calculation.
    3. Preferred claims for labor are to be paid in full unless it be necessary to encroach upon them to meet the expenses of the receivership.
    4. An order of distribution, made in the court of chancery, blended preferred and general claims as a basis for the calculation of a dividend to general creditors. It also unnecessarily ■ charged preferred claims with part of the expenses. The receiver, finding himself embarrassed by this order, and before he had taken any action under it that could not be undone or by which new rights were created, applied to the court of chancery for further direction. After full notice and hearing, a final decree was made, the effect of which is to correct the earlier order in these particulars, and to direct distribution in accordance with the rules above stated. ■—Keld, that the final decree is right in principle, and that the court had power to make it.
    5. The court of chancery has authority to correct,' pendente Ute, an obvious fallacy in one of its own orders.
    On appeal of J. Edward Addicts, a general creditor, from a decree advised by Vice-Chancellor Emery. No opinion.

      Mr. Sherrerd Depue, for the appellant.

      Mr. George L. Record, for the respondent.
   The opinion of the court was delivered by

Adams, J.

This is an appeal taken by a general creditor of an insolvent corporation from a final decree dealing with the distribution of assets.

The essential features of the case are these: The appellant (J. Edward Addicts) is the largest stockholder and bondholder, and also the largest general creditor of the Staten Island Terra Cotta Lumber Company, an insolvent corporation. He is also one of its receivers. John V. Bacot is the other receiver, and has alone been active in the administration of the trust. There are other general creditors, and also creditors who hold preferred claims for labor. The appellant, on July 2d, 1897, presented to the chancellor, by petition, an offer to pay for the entire plant, stock, good-will and assets of the company in the hands of the receivers, subject to two mortgages, the sum of $100,000, in a mode specified in the offer. This offer received, the approval of the chancellor, and, on July 23d, 1897, was accepted by an order of that date, which sanctioned the proposed mode of payment, and gave further direction in respect thereto.

The offer of -$100,000 specified the following mode of payment: That the petitioner (Addicks) should-be required to pay-in cash into court upon his bid, if accepted, only such proportion of $100,000 as should be determined by the court to belong to creditors other than himself; the remainder of the' bid to be paid by proper receipts from said petitioner.

The order of July 23d, 1897, accepted the offer, directed a deed, instructed a master to examine and report on the claim of Addicks against the company, and contained the following provision as to the mode of payment:

“That the said Addicks shall pay unto the said receivers the sum of one hundred thousand dollars in the manner following:. That he shall pay of the said one hundred thousand dollars the sum of twelve thousand dollars in cash; that he shall secure by security, satisfactory to the said receivers, the payment of the further sum of six thousand dollars, if the report of the said master shall show the same to be required, and that he shall pay the balance of the said one hundred thousand dollars by .proper receipts as a creditor of the said company.”

In other words, the plan was that the full amount of the bid, instead of being actually in court, should be theoretically in court, and that the sum to be actually paid into court should be only what was coming to creditors other than the petitioner (Addicks). This arrangement was for the convenience of the petitioner, who naturally wished to save himself the trouble of raising and paying a great sum of money, only that it might be afterwards returned to him. It is apparent that the direction for the payment of $12,000 in cash, and for further security to the of amount of $6,000 was not based on exact figures, but was a tentative provision then estimated to be adequate, but which might turn out, in the end, to be either too large or too small.

The sale was made pursuant to this order. The petitioner (Addicks) paid to the receivers the sum of $12,000 in cash, and furnished further security satisfactory in kind and amount. There are no assets other than the proceeds of this sale that are available for distribution.

The offer and the order accepting it established in outline the rights of the parties in interest. The orders that followed related, for the most part, to matters of detail, and are- to be read in connection with the offer and order of acceptance. The engagement of the accepted bid amounted to this: that out of the sum of $100,000, the labor claims, which were only a little moro than $2,000, should be paid in full, and that a dividend should then be distributed to general creditors, including the petitioner (Addicks), whose share of the dividend would be represented by his receipts. This construction gives effect to the terms of the offer and order of acceptance, maintains the preference of labor claims and secures among general creditors the equali that is equity. The offer said nothing about expenses. Nevertheless they were to be paid, and paid so as to make them a common burden upon the general creditors. Preferred claims for labor are always to be paid in full, unless it be necessary to encroach upon them to meet the expenses of the receivership. This was not the fact here. The expenses were to be taken care of, in this case, by charging them against the dividend to general creditors proportionately to the amounts of dividend due to the general creditors respectively.

The outcome, then, would be this: Each preferred creditor would get the full amount of his claim. Each general creditor, other than the petitioner (Addicks), would get a cash dividend on his claim, charged with a proportional part of the expenses. The petitioner would be charged, as general creditor, with his proportional part of the expenses. If any other questions should arise they would be settled on equitable principles, and so as to harmonize with the scheme above indicated.

This being the general relation of the parties in interest, the court of chancery proceeded, by orders made from time to time, to fill in the detail. As all the papers in the suit have not been sent up, some points are obscure. This obscurity need not embarrass this court in deciding the case, since the record that is now before it would lead to a decree more unfavorable to the appellant (Addicks) than the one to which he objects.

The receiver (Bacot) and the appellant differ as to the state of the account. The receiver insists that the cash payment of $12,000 is insufficient, and asks for authority to make up for the insufficiency out of the security given by the appellant. On the other hand, the appellant says that the cash payment was larger than was necessary, and that the receiver should refund a part of it.

The amount of the claims of preferred creditors for labor was fixed at $2,279.39. By an order dated August 8th, 1898, the receivers were directed to pay these labor claims. They have done so, except in the case of certain creditors who could not be found, and of one creditor who refused to take his money. The sum of $1,000 was allowed to the counsel for the receivers, and this somehow, perhaps by interest or disbursements, was increased to $1,016.36. The sum of $600 was allowed to Bacot, receiver, for services rendered subsequent to October 1st, 1897, besides $103.38 for certain of his disbursements, and also a sum not exceeding $100 for the expenses of carrying out the order of distribution. The taxed costs of the complainant and of the receiver were taxed and ordered to be paid. The amount of these taxed costs does not appear. The allowance of the receiver was thus, it seems, or in some other way, brought up to $1,198.92. The expenses therefore, so far as the record shows them, came to $2,215.28. The claim of Addicks, as a general creditor, was ascertained to be $730,170.60, and the claims of the other general creditors to be $91,602.58. The aggregate of claims due to general creditors was therefore $821,-773.18. If from $100,000 be deducted the preferred claims it will be seen that the amount of the bid that is available for the payment of general creditors is $97,720.61, which will give to each general creditor a dividend of about twelve per cent, upon his claim. The decimal .118911 is nearly correct. The aggregate of the dividend due to general creditors, other than Addicks, is $10,892.84. There is chargeable against this aggregate the sum of $245.91 for expenses. The dividend due to Addicks, as general creditor, is $86,827.77. There is chargeable to him the sum of $1,969.37 for expenses. The account, then, stands as follows:

Preferred claims............................. $2,279 39
Dividend to general creditors other than Addicks
(subject to a charge of $245.91).......... 10,892 84
$13,172 23
Gash payment by Addicks......:............. 12,000 00
Deficiency of cash payment to meet preferred claims and dividend to general creditors other than Addicks.............................. $1,172 23

There is also chargeable to Addicks the sum of $1,969.37 as his share of the expenses. The amount that he has to make up is therefore $3,141.60.

The decree appealed from, which bears date October 3d, 1900, is drawn on the general lines above laid down. The learned vice-chancellor who advised it did not think it necessary to write an opinion. This decree fixed the amount to be made up by Ad-dicks at the sum of $2,264.35, directed him to pay that sum to Bacot, receiver, and empowered the receiver, upon default of such payment, to raise the money by the sale of securities in court.

The data afforded by the record, which may be incomplete, indicate, as above stated, that the amount to be made up by Ad-dicks is greater than the sum fixed by the court of chancery. The receiver, however, does not appeal. Upon the view herein expressed the decree is correct in principle, and, as it is not clearly shown to be erroneous in detail, it should be sustained, unless it is faulty for some reason not yet mentioned. This leads to a consideration of the specific criticism of the decree that is made on behalf of the appellant, about which nothing has thus far been said.

It is insisted that the decree appealed from ought not to stand, because it is inconsistent with a prior order of distribution, dated July 27th, 1900, which is more favorable to the appellant. It remains to examine this order.

In the reciting part of the order of July 27th, 1900, there occurs this declaratory clause:

“And it appearing that the remaining moneys on deposit with the clerk of this court to the credit of the above cause, after the payment of receiver’s fees and his taxed costs in the above matter, should be distributed among the creditors of the defendant company, other than the said Addicks, who is to be excluded from sharing in any portion thereof except as to any claims held by him in excess of eighty-eight per cent, of the total indebtedness as found and allowed.”

It is said on behalf of the appellant (Addicks) that the words “total indebtedness as found and allowed,” in the declaratory clause, mean the entire indebtedness of the company, both preferred claims and claims of general creditors; that this aggregate indebtedness is $824,052.57; that Addicks has proved a claim as general creditor in excess of eighty-eight per cent, of this amount; that he has paid into court twelve per cent, of the amount of his bid, and that consequently he is entitled to share in the actual cash dividend, on the basis of the excess of his claim over eighty-eight per cent, of such total indebtedness.

It is evident that this construction of the declaratory clause throws the account into confusion by jumbling together the claims of general and of preferred creditors. These .elements are incongruous. They will not blend to form a homogeneous basis for the calculation of the amount due to a general creditor. Such an interpretation of the declaratory clause does not harmonize with anything else in the case, or with the equitable rules that should govern the distribution of these proceeds of sale. Still, it must be admitted that this is the natural meaning of the words of the declaratory clause.

The decretal part of the order of July 27th, 1900, fixes the compensation of Bacot, receiver, directs the payment of taxed costs and then proceeds as follows:

“And it is further ordered that said payments be made by the receivers out of the funds now on deposit with the clerk of this court, in said cause, and by said J. Edward Addicks out of the funds retained by him on his bid for and purchase of the assets of the said defendant company, in the proportion that the amount of claims proved by creditors other than the said Addicks bears to the proved indebtedness of the company to said J. Edward Addicks.
“And it is further ordered that the said receivers, after making the payments out of the funds in this court, authorized by this order, and any other order of the court, pay the remainder of the said funds to the creditors whose claims have been allowed by the said receivers, other than the said Addicks (except as aforesaid), distributing the same pro rata among the said creditors, according to the amount of their respective claims.”

It must be admitted, again, that the decretal part of this order is consistent with its reciting part. The last sentence quoted from the decretal part refers, by the words “except as aforesaid,” to the averment of the declaratory clause, and is a distinct recognition and adjudication of the appellant’s right to a share in the cash that he paid into court. Nevertheless it is plain that the appellant has no such right. It is to be observed, also, that the first sentence quoted from the decretal part of the order of July 27th, 1900, imposes a part of the expenses upon the preferred claims, which are not chargeable with that burden.

The arithmetical proposition on behalf of the appellant (Ad-dicks), which finds expression in the declaratory clause of this order, and is the basis of so much of its decretal part as is favorable to him, is that, since his claim exceeds eighty-eight per cent, of all claims and since he has paid in cash twelve per cent, of his bid, it must be true that some money should come back to him. This inference would be inevitable if the claims were of the same class. Some of them are of a superior class, and because of their superiority were entitled to be paid, and have been paid, in full. As to such claims no question of percentage arises, for upon such claims there is no dividend. Their payment is not partial, but complete. In order to validate any argument in favor of a general creditor founded on a comparison of percentages of claims and cash, it is necessary, first, to eliminate the preferred claims from both sides of the calculation. The amount of the appellant’s bid that is available for the payment of the claims of general creditors is not $100,000, but $97,720.61. The appellant’s payment of cash that is available to general creditors, other than himself, is not $12,000, but $9,720.61. As to his own claim, the inquiry should be, not what percentage it is of all claims, but what percentage it is of the claims of general creditors. This process of elimination affects the cash in court in two ways. On the one hand, it diminishes the amount of cash; on the other hand, it increases the demand upon the cash by raising the percentage of those claims for the payment of a dividend upon which the cash is available. The relation of the claim of the appellant to the total claims of general creditors is expressed by the decimal .88853. The relation of the aggregate claims of other general creditors to the total claims of that class is expressed by the complementary decimal .11147. The relation of $9,720.61, which is the cash available to other general creditors, to $97,720.61, which is the amount of the bid that is available for the payment of all general creditors, is expressed-by the decimal .09957. As the decimal that represents the cash is smaller than the decimal that represents the claims on which a dividend is to be paid in cash, it is evident that the amount of cash in court, instead of being too great, is too small; in other words, that it is insufficient for the payment of the dividend to general creditors other than the appellant. The difference between these two fractions is the decimal of the deficiency hereinbefore ascertained.

Receiver Baeot, finding himself embarrassed by the earlier order, applied to the chancellor, on August 27th, 1900, for further direction. The decree appealed from is the result of this application. It adopts “the plan of settlement recommended by the receiver,” which coincides with the view expressed in this opinion, and, in effect, corrects the errors of the order of July 27th, 1900.

The decree appealed from dealt, also, with a question as to interest on the fund in court. It appears that the $12,000 paid by the appellant to the receiver, pursuant to the order of July 23d, 1897, was deposited with the clerk in chancery, and that interest has accrued upon it in the hands of the clerk to the amount of $770.76. The decree appealed from directs the receiver to pay this interest to the general creditors other than the appellant. This is right. There is no other place for it. The appellant cannot claim for himself any part of the interest of a fund that belongs wholly to others.

The receiver’s petition for further direction raised every question important to be considered. He had taken no action under the former order that could not be undone, or out of which new rights had arisen. The final decree was made after hearing, upon full notice. It should stand, unless the court of chancery is without power to correct, pendente lite, an obvious fallacy in one of its own orders. It has such power. Morris v. Taylor, 8 C. E. Gr. 131; Jones v. Davenport, 18 Stew. Eq. 77.

The decree is affirmed.

For affirmance—The Chibe-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Bogert, Krueger, Adams, Vredenburgi-i, Voorhees—12.

For reversal—None.


author: Per Curiam.

text:
    Walter Zimmerman, appellant, v. Hiram G. Hallinger, respondent.
    [Filed March 4th, 1901.]
    Decree modified in certain respects.
    On appeal from a decree of September 6th, 1900,'advised by Vice-Chancellor Reed. No opinion.

      Mr. George A. Vroom, for the appellant.

      Mr. George E. Pierce, for the respondent.
   Per Curiam.

The merits of the original decree in this cause have been considered and decided by this court on a previous appeal. The present amended decree, now appealed from, results from a change in ownership of defendant's property, pendente lite. By the last-named decree it is (inter alia) ordered that

“in place of the defendant conveying to the complainant that certain property at the southwest corner of Sixth, Main and Pearl streets, in the city of Oamden, subject to a mortgage of four thousand dollars, the defendant pay to the complainant the sum of one hundred dollars, with interest thereon from the first day of September, eighteen hundred and ninety-seven.”

In this respect we think the decree below should be modified so as to exempt the defendant from the payment of this $100 and interest, but in all other things should be affirmed. The weight of testimony of the witnesses most familiar with the property, and in other respects qualified to speak upon the subject, is that in September, 1897, this property was not worth more than $4,000.

For reversal—The Chiee-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Bogert, Krueger, Adams, Vredenburgi-i, Voorhees—12.

For affirmance—None.


author: Voorhees, J.

text:
    Catharine Tracy, appellant, v. John T. Tracy, respondent.
    [Filed March 4th, 1901.]
    1. A divorce was asked on the ground of desertion. The husband left the wife in Albany, New York, where they were then residing. After remaining there for a time, she came to this state with the purpose, as she testifies, of permanently leaving her old home and of remaining here indefinitely. The desertion continued, and after the statutory period had elapsed she filed her petition for divorce.—Held, that she had acquired such a residence as is required by the statute, and, under the testimony, •was entitled to the divorce prayed for.
    2. Residence is acquired by living in a certain place with no present or definite intention of removing therefrom. The place where a person lives is, prima facie, taken to be his residence unless facts be established to the contrary.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 15 Dick. Gli. Rep. 25.

      Mr. Malcolm MacLear, for the appellant, ex parte.

   The opinion of the court was delivered by

Voorhees, J.

The appeal in this case is taken from the decree of the court of chancery, refusing the application of the petitioner for a diyorce from the defendant, her husband, upon the ground of desertion. The testimony shows that the parties were married at Albai:iy, New York, in November, 1890; that'the defendant was employed in the office of the secretary of state there; that they lived together as husband and wife in Albany, New York, until December, 1894, when the husband deserted the wife, leaving her in a boarding-house with an unpaid board bill, and has not rejoined or been with her since, or in any way contributed to her support; that after such desertion she continued to live in Albany, supported by her father-in-law (the father of her 'former husband), until May, 1897, when, his death having occurred, she removed, on May 18th, 1897, to New Jersey, and has continued to live in Newark since that time, at first boarding, and then conducting a boarding-house of her own for over a year; then she sold the boarding-house, and has been in lodgings since. She made several visits during the summers to the house of friends near her former home, but left in Newark a large part of her personal property and wearing apparel. She says she left Albany permanently. Pier intention was to take up a residence in New York City, but finding that too expensive for her means, she went over to Newark, where she had friends, and made that her permanent residence. She denies having come to New Jersey for the purpose of procuring a divorce; she denies having any thought or intention of securing a divorce when she first came; she states that her only object in leaving Albany was to avoid the unpleasant criticisms and comments of her acquaintances about her being deserted by her husband. She says when she came here her idea was to give up her home in Albany and to live in New Jersey indefinitely; that she has not changed her purpose, but still expects to remain here, and it is her only residence and home. She produced several witnesses, who testify to her coming here, and to her remaining here, and to the continued desertion of her husband while here. The vice-chancellor found that the evidence produced satisfactorily established the desertion contemplated by the statute, but advised against the divorce upon the ground that he didn’t believe that she came here for the purpose of giving up her home permanently and settling here, or that she had acquired a permanent or actual residence in New Jersey. He says, in his opinion, that except for her acquaintances in Newark, there was nothing to bring her to New Jersey except to obtain a divorce, and nothing to keep her here after she had obtained it, and he relies upon the authority of McGean v. McGean, 15 Dick. Ch. Rep. 21. That case materially differs from the one in hand. In McGean v. McGean the complainant testified that after her husband deserted her she consulted a lawyer in Brooklyn, who told her she could not secure a divorce in New York, and advised her to come to New Jersey and procure a residence for the statutory period; her residence had been in Brooklyn. She came to Jersey City and secured board there in a family for the statutory period, and spent much of her time at her home in Brooklyn, and then applied for a divorce, which was refused. Her avowed purpose in coming to New Jersey was to secure a divorce, while in the case in hand the petitioner, who is the only one who can testify on the subject, denies any intention of coming to New Jersey to secure a divorce.

The fact that a person comes into a state for a specified purpose does not necessarily prevent him from procuring a residence there, if at the time of coming he has no definite idea of removing from the state when that purpose is accomplished, or at some other definite period. But if he goes with the avowed object of living there to secure a standing on which to found a judicial proceeding, a violent presumption would arise that the animus of remaining was not definite, but was largely determinate upon the termination of such procedure, and that an actual and bona fide residence had not been obtained. The petitioner was not impeached in any way, and her testimony not contradicted; it was consistent, clear and relevant; did not bear any intrinsic evidence of improbability, and was sufficient after the other testimony produced, under the statute, to establish her residence here, and entitled her to the divorce prayed for.

A court or jury may consider the weight of evidence, and pass upon the credit of the respective witnesses, but can they arbitrarily and capriciously refuse to accept the unimpeached, uncontradicted testimony of a witness which is not inherently inconsistent or improbable? Lomer v. Meeker, 25 N. Y. 361; Seibert v. Erie Railroad Co., 49 Barb. 583.

The act tinder -which this application was made provides that the court of chancery shall have jurisdiction in all causes of divorce, alimony and maintenance * * * where the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint, and shall have been a resident of this state for the term of two years, during which such desertion shall have continued. Gen. Slat. p. 1273 § 39.

Residence has 'been defined to be the place where a person’s habitation is fixed, without any present intention of removing therefrom. The place where a person lives is prima facie taken to be his residence, unless facts be established to the contrary. 3 Am. L. Reg. (N. S.) 262; Ennis v. Smith, 14 How. 423; Hoskins v. Matthew, 8 De G. M. & G. 12. Residence does not depend upon the manner of living, which may be at housekeeping or lodging. Waterborough v. Newfield, 8 Greenl. 203; 1 Am. Lead. Cas. 744. Residence is lost by leaving the place where one has acquired a permanent home, and removing to another place animo non revertendi, and is gained by remaining in such new place animo manendi. A feme covert’s residence follows that of her husband, but terminates with the reason upon which it rests, and when the union between the two ceases, and an attitude of hostility arises, they may each have different residences. Harteau v. Harteau, 14 Pick. 181; 3 Am. L. Reg. (N. S.) 260. Residence and domicile have been fully described in this state, in Stout v. Leonard, 8 Vr. 492, 495; Daubmann v. Camden, 10 Vr. 57; Magowan v. Magowan, 12 Dick. Ch. Rep. 322. The testimony clearly shows that the petitioner lived within the State of New Jersey during the statutory time required for procuring the divorce prayed for; that she acquired a residence here and was a resident at the time of filing her petition; that the desertion was continued, willful and obstinate during the said time; that she left Albany with no idea of returning, and came herewith no -intention of leaving. She is entitled to the divorce prayed for.

The decree should be reversed.

For reversal—The Chief-Justice, Dixon, Collins, Fort, Garretson, Hendrickson, Bogert, Vredenburgh, Voorhees —9.

For affirmance—None.


text:
    Andrew H. Kellogg, appellant, v. The American Insurance Company, respondent.
    [Argued at November Term, 1900.
    Filed March 4th, 1901.]
    On appeal from a decree advised by Vice-Chancellor Emery> whose opinion in Kellogg v. Scott is reported in IS Dick. Ch. Rep. 344.

      Mr. Leon Abbett and Mr. Oharles L. Corbin, for the appellant.

      Mr. Henry H. Dawson and Mr. John O. H. Pitney, for the respondent.
   Per Curiam.

The decree appealed from is affirmed upon the opinion of Vice-Chancellor Emery, who advised it.

For affirmance—The Chancellor, Chief-Justice, Van Syckel, Fort, Bogert, Adams, Vredenburgh, Voorhees—8.

For reversal—Dixon, Collins, Garretson, Hendrickson—


text:
    The Congregational Church in White River Village, appellant, v. Robert D. Benedict et al., respondents.
    [Argued at November Term, 1900.'
    Filed March 4th, 1901.]
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 4 Dick. Ch. Rep. 136.

      Mr. Robert S. McCarter, for the appellant.

      Mr. James P. Powers, with whom was Mr. Robert D. Benedict (of New York),.pro se, for the respondents.
   Per Curiam.

The decree of the court of chancery in this cause is affirmed, for the reasons given by Vice-Chancellor Stevens, who advised it.

For affirmance—The Chancellor, Chief-Justice, Van Syckel, Dixon, Collins, Fort, G-arretson, ■ Bogert, Hendrickson, Krueger, Adams, Vredenburgh, Voorhees—13.

For reversal—None.


text:
    William R. Weeks, appellant, v. Robert R. Lister, respondent.
    [Filed March 14th, 1901.]
    1. Application to recall, revise and amend remittitur for certain purposes, denied.
    2. Practice as to allowance of counsel fees stated.
    This case was argued at the June Term, 1900, decided in that term, and record was remitted at November Term, 1900.
    Mr. Chauncey G-. Parker, having rendered services as counsel for respondents, makes application for counsel fees and printing upon the trial in the court of errors and appeals, having.given notice to the trustees of the fund, and adult parties respondent, and also for an amendment of the remittitur for that purpose.
   Per Curiam.

The court will not recall this record from the court of chancery. There has been no mistake in setting forth in the decree the real judgment of the court, upon any matter upon which an opinion has been given. The application will be denied.

The application for counsel fees should first be made in this court. If the court then passes on it, the decision is final, but if the court does not pass on it, or if through mere inadvertance the application for counsel fees is not made while the case is before this court, then after the remittitur, the court of chancery has jurisdiction to grant counsel fees and printing in the court of errors and appeals upon a proper case being presented in these respects.

[Application denied. No vote.]


author: Mache, Chancellor.

text:
    William M. Lanning et al. v. The Commissioners of Public Instruction of the City of Trenton.
    [Filed March 24th, 1902.]
    1. When a trust for charitable uses was created by will and the trastee appointed was a public corporation, which, under amendatory legislation, has been succeeded by another public corporation haying like powers, and the latter corporation is incapable of fully performing the trust according to the true intent and purpose of its creator, the court of chancery may discharge the trustee and substitute another trustee to perform the trust.

      2. The original trustee under the will was “the superintendent and trustee for public schools in the city of Trenton.” The purpose of the trust was to establish a library for the use of the “teachers and pupils of the public schools, apprentices, mechanics and such other persons as the said corporation should deem expedient and most conducive to the public good.” The corporation thus made trustee was abolished and succeeded by the “commissioners of public instruction of the city of Trenton,” the members of which are selected in a different manner from that by which the members of the original trustee were selected.—Held, that, in substituting another trustee, the court may determine who, in addition to the teachers, pupils, apprentices and mechanics, shall be admitted to the benefits of the trust, on principles deducible from the intent of the testator in creating the trust.
    Argued at October Term, 1901, and finally submitted on amended bill at February Term, 1902.

      Mr. John T. Bird, for the complainants.

      Mr. Samuel H. Grey, attorney-general, pro se.

   Mache, Chancellor.

This is a bill filed by William M. Lanning et al., citizens of the city of Trenton, in behalf of themselves and all others similarly situated and interested in the matters exhibited in the bill, against Samuel H. Bullock et al., as individuals, and “the commissioners of public instruction of the city of Trenton.”

The bill states 'that on or about the day of May, 1879, Charles Skelton died, leaving a last will and testament and a codicil thereto, which were afterwards admitted to probate by the surrogate of the county of Mercer.

The pertinent portions of the will and codicil may be thus described: He thereby bequeathed to “the superintendent and trustees for public schools in the city of Trenton,” and their successors in office, his library and bookcases, in trust for the use of teachers and pupils of the public schools of the city, apprentices, mechanics and such other persons as the said corporation should deem expedient and most conducive to the public good; and after directing the investment of the residue of his personal property, and giving the income upon such investments to certain persons named for life, he bequeathed such income, after the death of the last of the life beneficiaries, to “the superintendent and trustees of public schools for the city of Trenton,” for the purposes thereinafter described. After devising his real estate to different persons for their natural lives, he devised the remainder, after the termination of the life estates, to “the superintendent and trustees of public schools for the city of Trenton,” for the purposes thus expressed, viz.:

“That they and their successors in office shall have and hold the said premises and properties, take and receive the rents, issues and profits accruing from same, and therewith make all necessary repairs, or rebuild, and pay all taxes and necessary expenses and charges in and about the same and keep the same sufficiently insured against loss by fire, and after such payments deducted, they shall invest once at least every year the clear net income of the same in good books, which shall always be added to the library which I have bequeathed to the said corporation. It is my will and I do order and direct that all the books purchased ,by the aforesaid income of said property shall be strongly and firmly bound, and shall consist of works', treatises on the arts and sciences, especially on mechanics, engineering, mathematics, astronomy, geography, natural- philosophy, chemistry, architecture, history, travels and biography, but no mere tales and works of fiction. Truth is always more profitable than falsehood, life is too earnest and time too precious to be wasted on fictions which give no knowledge. A single great practical trust is of more value than all the fictions ever invented by novelists. I acquired the property hereby devised by a life of honest industry, frugality and temperance, and I desire that it may be employed to inculcate these virtues, without which our republican institutions, based on the sovereignty of the people, must soon perish.”

The codicil did not materially vary the provisions of the will in the respects above mentioned.

The bill states that some of the complainants are teachers employed in the public schools of the city of Trenton, and others are mechanics of said city, and that all of the complainants are-interested in the trust created by the will of Charles Skelton, and are beneficiaries therein, entitled to the full benefit and advantage thereof.

The bill further states that at the time of the death of Charles Skelton there was a corporation existing by the title of “the superintendent and trustees of public schools of the city of Trenton,” created by the act entitled “An act respecting public schools in the city of Trenton,” approved March 10th, 1856. P. L. of 1856 p. 175.

An examination discloses mat the corporation created by that act was thereby given power to take and hold in their corporate name, such estates, real, personal or mixed, as might from time to time be conveyed to it by gift, grant, devise or any other lawful mode, for the purpose of promoting the cause of public education in said city, and may execute any trust having such object in view:

The bill further states that by the provisions of the act entitled “An act to provide for the establishment of a commission of public instruction in cities of the second class in this state, whose population now exceeds or may hereafter exceed fifty thousand,” passed March 10th, 1892 (Gen. Stat. p. S096), the previous corporation, “the superintendent and trustees of public schools of the city of Trenton,” was abolished, and a new corporation took its place, under the name of the “commissioners of public instruction of the city of Trenton.” An examination of that act discloses that the commissioners of public instruction thereby provided for, were invested with and declared to possess and exercise all the powers vested in the'previous corporation having the management and control of the public schools in the .city of Trenton. The last-named act has been declared by the supreme court to be within the constitutional authority of the legislature. Oler v. Ridgeway, 26 Vr. 10.

The supreme court further construed the last-named act as not abrogating or diminishing the powers or duties of previously existing school boards in the various cities to which it applied. It was held that the purpose of the act was to change the mode of selection of the school board, which was thereafter to have the powers of the previously existing school board and some additional power thereby granted. Rose v. Hufty, 34 Vr. 195.

The bill further charges that the life beneficiaries under the will and codicil have all died, and that the last-named corporation, the commissioners of public instruction of the cityr of Trenton, have come into the possession of the fund created by the will of Charles Skelton, and have now in their possession about $8,000, invested, upon which they receive the income, and have received and are receiving the rents of the real estate.

The bill further charges that under, the provisions of the act entitled “An act to authorize the establishment of free public libraries in the cities of this state,” passed April 1st, 1894 (Gen. Stat. p. 1950), the city of Trenton has accepted the provisions of the act and has established a scheme for a public library, and appointed trustees thereof, who have become a body politic and corporate, designated as “the trustees of the free public library of the city of Trenton,” and that said corporation has contracted for the building and erection of a library building within said, city, having a capacity to store and hold the books of the library of Charles Skelton and such books as shall be acquired by the use of the income of the trust fund and real estate, according to the provisions of the will and codicil.

The prayer of the bill is that “the commissioners of public instruction of the city of Trenton” may be discharged from their office as trustees of the Skelton fund, and that “ the trustees of the free public library of the city of Trenton” may be appointed trustees thereof, and authorized and directed to execute and carry out the trusts created by the will and codicil of Charles Skelton, according to its true intent and spirit, with proper restrictions in respect to segregating the books already acquired or hereafter to be acquired, under the trust from other books in the public library.

No answer has been filed to the bill, but proofs have been taken which establish the following facts: The will and codicil make no provision for the erection of a library building to house and contain the library directed to be purchased by the provisions of the Skelton will and codicil. The commissioners of public instruction are not authorized to employ or pay a librarian to manage the books. The books which came from the bequest of Charles Skelton, and some few books which have been purchased out of the income, are now in a room of the high school 'of the city of Trenton. During school hours they are accessible to the teachers and pupils of that school, but manifestly many of the other persons intended to be benefited by his library are not capable of enjoying it during those hours. The commissioners frankly confess their inability to execute andvproperly discharge the trust which has devolved upon them by this will and codicil and express themselves willing to abandon their trusteeship if permitted by the court, and if the court will give authority to the trustees of the free public library to take up and execute the trust.

• It further appears that the trustees of the free public library are willing to accept the trust upon terms that seem to indicate that the trust will be performed in the manner prescribed by the will and codicil, and with the effect that those intended to be benefited will receive the benefit and advantage contemplated by the testator. They offer to separate the Skelton books from the other books which are to be acquired by them, and to designate those books which are to acquired by the income of the Skelton fund by some appropriate mark to indicate that they were thus acquired. They propose to provide for the distribution of the books, to care for and repair them, and to manage the fund without any charge upon it.

If this disposition of the trust property can be made, it will result that the fund, which is now practically of no value to a majority of the persons designed to be benefited by it, and of very little benefit to any part of such persons, may be made beneficial in the broadest sense and widest spirit of the will of the donor.

The power of the court of chancery to remove or discharge trustees and to appoint new trustees in their place is very broad. It exists and will be exercised when there is a failure of suitable trustees to perform the trust either from original or supervenient incapacity to act. 2 Story Eq. Jur. 1287; Harvard College v. Society, &c., 3 C. E. Gr. 280; Perry Trusts 275, 280, 921, It is said that the court may appoint new trustees whenever such action is necessary to protect the rights of the beneficiary. 2 Pom. Eq. Jur. 1087. When a trustee desired discharge because of multiplicity of business and infirmity of age, a new trustee was appointed. O’Kill v. Campbell, 3 Gr. Ch. 13. Incompetency from long continued illness was declared to require the substitution of another trustee. Babbitt v. Babbitt, 12 C. E. Gr. 54.

li is obvious, in my judgment, that by the provisions of his will and codicil the testator created a trust for charitable purposes. His design 'was to collect a library of useful and instructive books, by the use of which the cause of public education would be promoted. It is also obvious that “the superintendent and trustees of public schools of the city of Trenton,” incorporated under the above-cited act of 1856, was endowed by the legislature with capacity to receive and manage the property bequeathed and devised for that public purpose. I deem it equally clear that “the commissioners of public .instruction of the city of Trenton,” organized under the above-cited act of 1892, has succeeded to the- trust created by the will and codicil in question, and are now properly holding and managing the property which it received from the previously existing corporation, and which it now has in possession and control.

It is, however, incontestible that the present trustee is in fact incapable of administering the trust so as to fulfill the intent of the testator who created it. If retained as trustee, it is impossible to discover how the benefits of this trust can be applied to those for whom it was designed. This happens not from any dereliction of duty or any misconduct on the part of the trustee, but wholly because the donor of the trust has expressly directed that the whole of the net income of the fund should be applied to the purchase of books, and because it possesses no power to raise money to pay for a librarian to care for and distribute the books or to erect a building for the library. The trustees of the free public library of the city of Trenton are empowered by the eighth section of the act of 1884, above cited, to have and receive, hold and manage any devise, bequest or donation heretofore made, or hereafter to be made or given for the establishment, increase or maintenance of a free public library in that city. By section 5 of the same act they are empowered “generally to do all things necessary and proper for the establishment and management of the free public library” in such city.

I think it does not admit of doubt but that the last-named corporation has power to act as trustee of the fund in question in this case. If appointed as trustee, its acceptance of the trust will bind it to the performance of the duties devolved upon the trustee by the trust under the supervision and direction of this court. It is obvious that if the substitution of that corporation as trustee can be made, and it will accept the trust, the purposes of the creator of the trust will be substantially carried out.

As this is a public trust, the attorney-general, representing the public, is a necessary party to the litigation. The general practice seems to be that a bill of this sort in a matter of a public trust is filed by the attorney-general, either of his own motion, or on the relation of some parties interested. In this case the parties interested have presented the bill and have made the attorney-general a party defendant thereto. No objection to this course having been made by the attorney-general, I think the proper parties are before the court, and that it is immaterial that the attorney-general is a defendant instead of a complainant. That was the view taken by the Massachusetts supreme court in Harvard College v. Society, &c., ubi supra, and it accords with reason.

Although there is no contest over this case, and the parties all assent to the decree prayed for substantially as prayed, I have deemed it my duty to examine the case with care, in order to make the substitution of a new trustee clearly effective, if it can be done. I have discovered no reason for not acceding to the request to appoint a new trustee, and conclude that such appointment should be made and the present trustee should be discharged, upon the ground that the latter is practically incapable of performing the trust according to its true intent and purpose. The only question that has suggested itself to my mind relates to the direction of the testator in respect to the persons who are to share in the benefits of the public trust. The substituted trustees will have no difficulty in determining that it must admit to the use of the library the teachers and pupils of the public schools of the city, and- apprentices and mechanics. But the donor intended that other persons should be admitted, and cast upon the trustee whom he appointed the duty of adjudging who such other persons should be, upon their judgment of expediency and public good.

It has occurred to me that there may be some question with respect to the future management of the trust in this respect. It may be claimed that a personal confidence was committed to the trustee appointed by the donor to execute this trust. But the trustee appointed by the donor was a public corporation composed of members selected in a certain way. It was to that corporation that he committed the duty of selection of beneficiaries. That corporation has been abolished and another corporation has taken its place, the members of which are selected by another mode. The testator did not design to commit the judgment in respect to those to be admitted to the benefit of the trust to be made by the succeeding corporation. If the present trustee was practically capable of performing the trust I think it would be questionable whether it could exercise the power of determining who should be admitted to the benefit of this trust. If this is so, this court may direct how the trust should be managed and conducted, and will itself determine who should be admitted to the benefits thereof, on the principles laid down by the testator. In sxxbstituting a trustee, the court may do the same. Upon the removal of a trustee of a private trust to whom was given the expenditure of an income in the support of himself and his family in such manner and to such extent as to him would seem proper, Chancellor Runyon declared that this court would determine how much of the income should be applied to the support and maintenance of the family and for the education of the minor children. In dealing with a public trust, I think a like course may be taken. In view of the intent of the testator, shown by his will, I am satisfied that such intent will best be carried out by admitting to the benefit of this trust, in addition to teachers and pupils of the public schools, apprentices and mechanics, all other reputable citizens of the city of Trenton, and I think the substituted trustee should be directed to admit all such persons. The complainants may have a decree on the lines of this opinion, with liberty to the substituted trustee, on accepting the trust, to apply to the court for directions, if necessarv.