text:
    In the matter of the application for letters of administration ad prosequendum to prosecute a suit alleged to have accrued by reason of the death of Joseph Post, deceased.
    [Decided September 27th, 1918.]
    1. The ox-dinai-y may, undex- his genex*al jux-isdiction, appoint an administx-atoi- ad prosequendum to px’osecute a cause of action undex- the Death act (2 Comp. Stat. p. 1907), as supplemented by chapter 180 of the laws of 1917 (P. L. 1917 p. 531), where the deceased was non-x-esident.
    2. Lothrop’s Case, 33 N. J. Eq. 246, followed; Chadwick’s Case, 80 N. J. Eq. 471, distinguished.

      On petition, &c.

      Mr. Milton M. Unger, for the application.
   Lane, Vice-Ordinary.

This is an application for the appointment of a special administrator or administrator ad prosequendum for the purpose of instituting a suit under the provisions of an act “An act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default” (2 Comp. Stat. p. 1907), as supplemented by chapter 180 of the laws of 1917. P. L. 1917 p. 531. The deceased was a non-resident.

There has been no general administration in this state or elsewhere. Section 2 of the act (2 Comp. Stat. p. 1908) provides that every action under it “shall be brought by and in the names of the personal representative of such deceased person.” Section 1 of the supplement (P. L. 1917 p. 531) provides that “every action, proceeding or claim brought, instituted or made under and by virtue of the remedy given by the act to which this is a supplement, shall be brought, instituted or made in the name of an administrator ad prosequendum.” The legislature has not seen fit to either amend or repeal section 2 directly. If the word “shall,” in chapter 180 of the laws of 1917 is to be given its natural meaning, then a general administrator no longer may bring the suit, but it must be instituted by an administrator ad prosequendum. By chapter 181 of the laws of 1917 the surrogates are given power to grant letters of adminstration ad prosequendum upon the estates of those who die resident in their counties. The surrogates are without power to appoint such administrators in cases of non-residents.

Application is made to this court for the appointment under its ordinary jurisdiction.

In Lothrop’s Case, 33 N. J. Eq. 246, the ordinary (Eunyon) appointed an administrator ad prosequendum where the deceased was non-resident, resting his power upon the practice of the ecclesiastical courts in England and upon the case of Coursen’s Will, 4 N. J. Eq. 408, holding that the powers of this court in granting letters of administration are not special or limited but full and general. To the report of Lothrop’s Case an interesting note is attached. Lothrop’s Case has been cited in the supreme court in Benson v. Wolf, 43 N. J. Law 78, and with approval by the court of errors and appeals in Davenport v. Davenport, 68 N. J. Eq. (at p. 615), and by the court of chancery (Vice-Chancellor Garrison), 70 N. J. Eq. (at p. 658). Coursen’s Case was considered by the court of errors and'appeals in Chadwick’s Case, 80 N. J. Eq. 471, and it was there held that the jurisdiction of the ordinary was subject to legislative regulation, and construing together the legislation which now appears as sections 1 and 2 of “An act respecting the prerogative court and the power and authority of the ordinary” (2 Comp. Stat. p. 1722), the court held that the authority of the ordinary did not extend to the probate of wills of those dying domiciled elsewhere. Except as specifically regulated by the legislature, the jurisdiction of the ordinary is full and general and extends to the exercise of tire powers (in testate and intestate matters) of the English ecclesiastical courts. The question is whether the reasoning of the Chadwick Case applies to the grant of letters of administration. I think not. Administration of some nature may and must lie taken out in every jurisdiction in which there is property. 1 Story Confl. L. §§ 513, 514, &c.; 11 Rul. Cas. L. § 67. While it has been said that administration taken out in a place other than that of the domicile of the deceased is ancillary to administration in the forum of the domicile, and that the foreign administrator must account to the administrator of the domicile of the deceased, this is subject to the qualification that debts in the locality of the foreign administrator must be provided for. Pisano v. Shanley Company, 66 N. J. Law 6; 1 Story Confl. L. § 525. It has never been held, to my knowledge, that administration cannot be taken out in the foreign jurisdiction until administration has been taken out in the place of the domicile. Such a holding would, in case administration never was taken out in the place of the domicile, as might be, deprive creditors in the locality of their rights. By statute surrogates are given jurisdiction to appoint, after a certain length of time, an administrator for the estate of a deceased intestate where there is property of the deceased within their counties. There is no statutory grant of power to the ordinary, unless it be included in the general language of section 1 of the act respecting the prerogative court and the power and authority of the ordinary. Rev. of 1900; 2 Comp. Stat. p. 1722. By that section the authority of the ordinary is extended only to the granting of probate of wills, letters of administration, letters of guardianship, &c. As I have pointed out, the court of errors and appeals in Chadwick’s Case held that so far as probate of wills is concerned, the authority of the ordinary extends only to the wills of residents. But the court reached the conclusion it did because of the language used in section 2 which required that before probate should be granted by the ordinary, proof should be made to the satisfaction of the ordinary that no caveat against proving such will had been filed in the office of the surrogate of the county where the testator resided at the time of his death which indicated that the legislature intended the jurisdiction to extend only to the probate of wills of residents. There is no similar language with respect to letters of administration. The ordinary had, prior to the passage of the legislation, full and general authority to grant letters of administration upon the estate of deceased non-resident intestates, general or special, and I thinlc there is nothing in the legislation which indicates an intent on the part of the legislature to cut down the jurisdiction, nor can I conceive of any good reason why the jurisdiction should be cut down. The rule of comity referred to in the Chadwick Case does not, I think, apply. It has been generally held that a right of action for negligently killing a person is an asset of his estate, sufficient to warrant the appointment of an administrator, although there are no assets in the state and the deceased was a non-resident. 11 Rul. Cas. L. § 69.

I am of the opinion that the ordinary may appoint an administrator ad prosequendum to prosecute a cause of action under the so-called Death act where the deceased was a non-resident upon the authority of Lothrop’s Case, supra.

Such an appointment will be made.


source: Caselaw Access Project

author: Gummere, Chief-Justice.

license: Public Domain

text:
    Marie A. C. Eugster, complainant-appellant, v. Jean B. Eugster, defendant-respondent.
    [Decided June 18th, 1918.]
    1. The right to appeal from a decree in chancery only exists in favor of a person aggrieved by such decree.
    2. Where the effect of a decree of the court of chancery is to leave the parties in exactly the position the appellant claims they were from the beginning, she cannot appeal from said decree, as she is not a “person aggrieved” thereby.
    On appeal from a decree in chancery.

      Mr. J. Emil Walscheid, for the appellant.

      Messrs. Queen & Stout, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The complainant and defendant, at the time of tire filing of the bill in this case, were wife and husband, their marriage occurring on the 23d of November, 1910. Before their marriage they entered into an agreement for the establishment and carrying on of an embroidery business at West Hoboken, by the terms of which the intended wife was to purchase the necessary land, and erect and equip the embroidery factory upon it; Mr. Eugster on his part was to operate the business (in which he was an expert.) , and, after making certain payments provided in the agreement, the net profits were to be divided between the parties.

In 1912 the relations of the husband and wife, both matrimonial and business, having ceased to be harmonious, Mrs. Eugster filed the bill in this case praying for an accounting by her husband of the profits made out of the business, and the appointment of a receiver. Pursuant to the prayer of her bill the court of chancery directed an accounting to be taken between the parties before Special Master Asper, and this officer of the court, after hearing the parties and their witnesses, and examining the exhibits submitted to him, reported that the net assets or profits of the business up to the date of the making of the order of reference (approximately), amounted to $6,243.20, and that one-half of these net assets or profits belonged to each of the parties. Upon the coming in of this report, Vice-Chancellor Lewis, after hearing counsel for both parties, affirmed it, and thereupon advised a decree adjudging that the parties had been copartners in the business; that the partnership “be and the same is hereby dissolved;” that the embroidery business, and the premises upon which it was carried on, together with all machinery and other appurtenances and appliances located therein, were the property of the complainant, subject, however, to a lien for the payment of the debts of the business, and the sum found to be due to the defendant on the accounting.

Erran the decree entered upon the advice of the vice-chancellor the complainant-has appealed.

The first ground of appeal is that the evidence does not warrant a finding that a business partnership existed between the complainant and the defendant.

Whether the business arrangement between these parties entered into prior to their marriage constituted them partners; and, if it did, whether the partnership relation was terminated by their subsequent marriage, we do not fitod it necessary to consider. Conceding the contention of complainant’s counsel to be sound in law, she is not legally aggrieved by the adjudication upon this point, and for this reason: The adjudication declaring the existence of-a partnership had no effect until it was pronounced — that is, no partnership existed in fact until the court of chancery declared otherwise. In conjunction with this declaration was a further adjudication that the partnership which was then created “be and the same is hereby dissolved.” The net result of the judicial action complained of, therefore, was to leave the complainant and the defendant, so far as a partnership between them was concerned, in exactly the position which she claims they were in from the beginning. Belief by appeal from chancery is only for “persons aggrieved” by the order or decree appealed from. Beckhard v. Rudolph, 68 N. J. Eq. 749. And a party aggrieved is one whose personal or pecuniary interests, or property rights, have been injuriously affected by the order or decree. Swackhamer v. Kline’s Administrator, 25 N. J. Eq. 503; Parker v. Reynolds, 32 N. J. Eq. 290; Andress v. Andress, 46 N. J. Eq. 528.

The next ground of appeal is that the contract between the parties relative to the operation of this embroidery business is not enforceable in equity, for the reason that it does not express the free and uncontrolled intention of the parties, or, rather, of the complainant. The question thus raised is one purely of fact; the vice-chancellor determined it against the complainant, and our examination of the proofs sent up with the appeal satisfies us that he was entirety justified in so doing.

It is next asserted as a ground for appeal that the evidence did not warrant a finding that the defendant was entitled to $3,-190.77 by way of profits. The ground upon which this contention is based is thus stated in the brief of counsel: “If there was an equitable partnership under which defendant was entitled to profits, and if either party had a right to terminate it, such termination must be inferred from the filing of the bill of complaint, and from that time forward at least, defendant must be considered a trespasser in the business.” No argument is submitted in support of this contention, and we are unable, without the assistance of counsel, to discover any merit in it.

The fourth ground of appeal is based upon the following proposition, viz., a married woman cannot enter into a business partnership with her husband’, nor can she be held to pay him for service. What we have already said upon the question of the partnership between these two litigants is dispositive of this point. Moreover, there is nothing in the case to show any agreement on the part of the complainant to pay the defendant for his services. On the contrary, there was a joint adventure and an agreement to divide the profits of it between the parties to it.

Lastty, it is contended that the defendant held the property of the complainant as a trustee ex maleficio, and, consequently, is not entitled to compensation. The answer to this proposition is twofold — first, upon the proofs submitted there was no ground for holding the defendant to be a trustee for the complainant; second, there was no allowance to him of any compensation, but a mere division of the profits between him and his wife as ascertained by the accounting which she sought by her bill.

The decree below will be affirmed, with costs.

For affirmance — The Chief-Justice, Swayze, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 12.

For reversal — None.


text:
    William E. Gordon, petitioner-appellant, v. Frances E. Gordon, defendant-respondent.
    [Decided November 18th, 1918.]
    1. Where a wife who is the defendant in a divorce suit has become insane within two years after deserting her husband, her separation from him during the period of her insanity is not willful, continued and obstinate within the meaning of the Divorce act.
    2. A petitioner who seeks a divorce upon the ground of desertion must prove his case, and all uncertainties of fact should be resolved against him.
    3. When the two year period of desertion fixed by the statute has once elapsed the desertion becomes permanently established; the benefit given by the statute to the spouse offended against has become vested: and he or she can never thereafter be deprived of that benefit — of his or her right to a divorce — except by his or her own act.
    4. Myles v. Myles, 77 N. J. Eq. 265, explained.
    On appeal from a decree in chancery advised by Vice-Chancellor Stevenson, reported in 88 N. J. Eq. 436.

      Mr. Edward P. Stout, for the appellant.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

' William E. Gordon, the present appellant, filed a petition in the court of chancery seeking a divorce from his wife upon the ground of desertion; the charge in the petition being that “the defendant deserted petitioner in the month of ^November, 1909, ever since which time, and for more than two years last past, defendant has willfully, continnedly and obstinately deserted your petitioner.” The learned vice-chancellor found as a fact that the defendant was guilty of willful, continued and obstinate desertion of lier husband for a period of two years from the date when she left his home in November, 1909, but refused the divorce for the reason that, after the expiration of the statutory period, and in November, 1912, the defendant had become insane to such an extent as to be irresponsible for her actions, and had continued in that mental condition up to the time of the filing of the petition, some four years later. He based his decision upon what he understood to be the doctrine laid down by this court in the case of Myles v. Myles, 77 N. J. Eq. 265, that “the two years contemplated by the statute are those immediately preceding the filing of the petition;” mistakenly considering that under this doctrine the right of the petitioner to a divorce was brought to an end by the insanity of the defendant, that being of such a character as to render her irresponsible for her actions, and, therefore, as he expresses it, “putting a period to her willful, continued and obstinate desertion.”

Our examination of the proofs in this ease leads us to the conclusion that the learned vice-chancellor was in error as to his finding of fact; that is to say, that the proofs fail to show that the wife was guilty of a willful, continued and obstinate desertion of her husband for the full period of two years after its commencement in November, 1909. According to the petitioner’s own story, told upon the witness-stand, his wife became irrational as early as June, 1910; and his statement was based upon his personal observation of her during a visit which he made upon her at that time, while she was staying with her aunt. Apparently her mental derangement became more pronounced as time went on, for, during the fall of 1910, or earlier, she was confined as an insane patient at the state hospital at Centre Islip, Long Island, on the application of her brother. Just when her commitment occurred does not appear, but she remained at this institution until October, 1911. By that time her mental condition had improved, and the petitioner removed her from the asylum and took her to her father’s home (why he did not take her to his own home he fails to disclose). She remained in her father’s home for about a month, and then went to her mother at Landing, New Jersey, and remained with her until November, 1912. On the 5th of that month she was taken to the Morris Plains Asylum. At that time, according to the testimony of Dr. Evans, the medical superintendent of the asylum, she was suffering from mental disorder, talking incessantly and incoherently, and apparently entirely irrational. Her condition from that time until the trial of this cause exhibited no improvement, and she has ever since remained an inmate at the asylum.

Assuming that the wife’s abnormal mental condition, as observed by the petitioner in June, 1910, was not of such a character as to destroy her free agency, it cannot be doubted, we think, that when she was taken to the insane asylum at Centre Islip, and confined there, her separation from her husband ceased to be “willful, continued and obstinate,” within the meaning of our Divorce act. Porter v. Porter, 82 N. J. Eq. 400, and cases cited. Up to the time of her discharge from that institution, in October, 1911, therefore, only the period of time intervening between her leaving her husband’s home (in November, 1909) and her commitment (in the fall of 1910) can be included within the two years specified in the statute. Just how long that period was is not shown by the testimony. The burden was upon the petitioner to prove his ease, and all uncertainties of fact should be resolved against him. This being so, it should be presumed that she was confined in this asylum at least as early as September, and on this theory ten months only of the statutory period had elapsed when she was discharged from her confinement in October, 1911. Thirteen months elapsed between the time of that discharge and her commitment to the Morris Plains Asylum; and, even, if it be considered that during the whole of that time and up to the very day when she was taken there, she remained a free agent, responsible for her conduct, and that her willful desertion persisted, the statutory two years has not been covered; for, of course, as has already Been stated with relation to her earlier confinement, she ceased to be a free agent when she was committed to the Morris Plains Asylum, and has never since had an opportunity to repent her desertion and return to her husband.

The petitioner having failed to prove a desertion of two years on the part of his wife, a decree of divorce was properly denied him.

We might very well leave the case here, but, as the learned vice-chancellor has misunderstood the principle intended to be laid down by this court in the case of Myles v. Myles, supra, (presumably, because of our unfortunate failure to express our thought in clear and unambiguous words), it seems advisable that we should restate our view, so that, not only judges of inferior tribunals, but the bar of the state may not longer be left in uncertainty as to the doctrine there intended to be exploited. What we said in that case was that “the two years’ duration contemplated by the statute are those immediately preceding the filing of the petition; and that this is so is plain from the fact that if the petition left a hiatus between the end of the period and the date of the filing of the petition, such hiatus might readily represent a complete reconciliation and reunition of the parties that would entirely destroy any right to a divorce arising out of a previous desertion.” What we intended to express was that, no matter how long the period of desertion had existed beyond the statutory two years preceding the filing of the petition, unless the desertion had continued up to the time of such filing the injured spouse could take no benefit from the statute. But, in our view, when the two years’ period has once elapsed the desertion becomes permanently established, and its character continues until the filing of the petition, unless it is sooner brought to an end by the act of the injured husband or wife. During the whole of the two years immediately following the act of desertion the offending spouse is offered an opportunity of repenting of his or her sin, and may put an end to the running of the statute by exhibiting such repentance to his or her wife or husband, and offering in good faith to return to the deserted home and to renew cohabitation. But if he or she declines to take advantage of the opportunity to repent afforded by the statute, and persists in the desertion for the full period of two years, the right to return has gone, the hour of repentance has passed, the benefit given by the statute to the spouse offended against has become vested and lie or she can never thereafter be deprived of that benefit — of his or her right to a divorce — except by his or her own act. Bepentanee by the sinner, offers of return by him or her, are then of no avail. Not even the fact that the offending spouse, after the termination of the two years’ period, has ceased to be a free agent by reason of mental aberration, or from any other cause, can deprive the injured spouse of that vested right. It is absolute and unassailable.

The decree under review will be affirmed.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


text:
    In re appeal of Neva M. Harrison, administratrix, &c., from an order of the surrogate of Bergen county admitting to probate the last will and testament of John Tipper, deceased.
    [Decided November 18th, 1918.]
    The informality of an order for postponement of hearing of an appeal from the probate of a will by the surrogate, in failing to specify the sum to be paid by appellant on account of expenses in subpcening an alienist — Held, not to justify the reversal of an order dismissing the appeal when no one appeared for the appellant on the adjourned day.
    On appeal from an order of the prerogative court advised by Vice-Ordinary Backes and reported in 88 N. J. Eq. 307.

      Mr. Adolf L. Engelke, for the appellant.

      Mr. Warren Dixon, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The will of John Tipper, deceased, having been admitted to probate by the surrogate of Bergen county, Neva M. Harrison, the administratrix of the testator’s widow, removed the proceedings into the orphans court of the county for review upon the ground that the testator was mentally incompetent to make a will at the time of the execution of the instrument offered for probate. The matter was regularly set down before the orphans court for hearing, but was adjourned upon the application of Miss Harrison. Upon the adjourned day a further postponement was asked for by her, which was opposed by counsel for the proponents of the will. After some discussion the court concluded to grant the application, upon condition, however, that Miss Harrison pay the costs of the day, including the fee and expenses' of Dr. Britton D. Evans, a prominent alienist who had been subpoenaed as a witness by the proponents. Counsel for Miss Harrison then asked to be informed what his fee and expenses amounted to, and was told by his adversary that the fee was $100, exclusive of expenses. Miss Harrison’s counsel then objected to the inclusion of the expert witness’ fee in the taxation of the costs; but, notwithstanding, the court made the order for adjournment upon the condition which had been declared by it. On the second adjourned day no person appeared representing Miss Harrison, and the appeal was dismissed. She then petitioned to the prerogative court for a review of the order of dismissal, upon the ground that the order of continuance was made upon terms and conditions illegally imposed upon her. The order did not specify in dollars and cents the amount allowed by the court, for the expense incurred in procuring the attendance of Dr. Evans, and for this reason the prerogative court reversed the order of dismissal entered in the court below.

We concur in the view that the order for postponement was technically objectionable in form for failure to contain a specification of the sum to be paid on account of the expenses incurred in the subpoenaing of Dr. Evans; but we cannot agree with the prerogative court that the failure in this regard justified a reversal of the order of dismissal. As that court said, the imposition of the condition by the orphans court was a matter within its discretion; and it cannot be said that there was an improper exercise of that discretion. The failure to specify in the order the sum to be paid was not injurious to Miss Harrison, because she had already been advised of the amount of the fee by counsel at the hearing. She made no objection to the orphans court of the form of the order, and, apparently, abandoned the further prosecution of her appeal in that court by failing to appear on the day of the last adjournment. Moreover, the ground of her appeal to the prerogative court was not directed at the form of the order for postponement, but at the allowance of Dr. Evans’ fee, her claim being that it was illegal, oppressive and an abuse of the court’s discretion to compel her to pay it. The error pointed out by the prerogative court, not having been injurious to Miss Harrison, and not having been relied on as a ground for reversal, her appeal to that court should have been dismissed.

The order under review will be reversed.

For affirmance — None.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.


author: Swayze, J.

text:
    Weidmann Silk Dyeing Company, respondent, v. East Jersey Water Company et al., appellants.
    [Argued June 20th, 1918.
    Decided November 18th, 1918.]
    It was not meant by rule 131 of the supreme court (edition of 1913), applicable to the court of errors and appeals by rule 147, to compel the appellate court to pass on every question raised on the appeal.

      On appeal from a decree of the court of chancery, reported in 88 N. J. Eq. 397.

      Mr. John W. Harding (Messrs. Griggs & Harding), for the respondent.

      Mr. John B. Humphreys and Mr. Gilbert Collins, for the appellants.
   The opinion of the court was delivered by '

Swayze, J.

The opinion of the chancellor sufficiently vindicates the result he reached. One expression in the opinion may lead to misapprehension, and it is important enough to call for remark. In speaking of the effect of the decision in A. & S. Silk Dyeing Co. v. East Jersey Water Co., 88 N. J. Law 273, he says that under the rule of the supreme court (now rule 131, edition of 1913) no questions are open for litigation upon a retrial except those on which the decision of the trial court was found to be wrong. The rule is limited in any event to questions that are separable, and, hence, it is necessary for the appellate court to adjudge that the questions are separable, if it means to limit the scope of the retrial. What the judgment was in the case cited does not appear, and the opinion only shows that the judgment was to be reversed and a new trial ordered. This result would necessarily follow if any fatal error was found as there was in that case. Such a reversal, however, does not necessarily conclude all other questions. This court on finding- a fatal error might or might not pass on other questions involved in the case. It was not meant by rule 131 to compel the appellate court to pass on every question raised on the appeal. The question does not arise now since we agree that the facts conceded in the bill and answer entitle the complainants to a decree, unless it is to be deprived of relief on the theory that it does not come into court with clean hands. We cannot so hold. The fact that the complainant may have heretofore made an unreasonable use of the water and polluted it in such use does not prevent it from now vindicating its property rights. Those rights it has not lost even though it has in the past violated the criminal law by creating a public nuisance. Even a criminal would not be an outlaw.

We are bound to assume that it will hereafter assert its legal rights in a lawful way, and in that assertion it is entitled to protection.

The decree must be affirmed, with costs.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Taylor, Gardner — 12.

For reversal — None.


author: Trenchard, J.

text:
    Leslie N. Simpson et al., complainants-respondents, v. Ernest C. Klipstein, defendant-appellant.
    [Argued June 19th, 1918.
    Decided November 18th, 1918.]
    1. Under a contract to convey real estate “by a good and marketable title free and clear of all encumbrances,” the vendor is bound to have and tender a title free from encumbrances, and dependent for its validity upon no doubtful questions of law or fact. The title must be such as to make it reasonably certain that it will not be called into question in the future so as to subject the purchaser to the hazard of litigation with reference thereto.
    2. The conveyance of a lot by reference to a map made by the vendor, and filed in the proper public ofiice, describing the lot as bounding on a designated street, shown on the map, constitutes a dedication to public use of that street as laid out thereon.
    3. A dedication of a proposed street across land, made by conveyance by reference to a filed map, is a bloud upon the title, justifying a proposed purchaser, entitled to a “good and marketable title free and clear of all encumbrances,” in refusing to take title in the absence of a vacation of such street, even though the street has never been opened or formally accepted by the municipal authorities, and that is so because, after such a dedication of the street to public use there exists the right of the public to appropriate the street at any time when their wants or convenience require it.
    4.. Where the doubt as to the validity of a title is one of fact, the court never compels a purchaser to take the title where the fact is too doubtful to be settled without litigation and all the parties interested are not in court.
    5. The fact that the purchaser of lands, before making his contract for a “good and marketable title free and clear of all encumbrances,” saw a map thereof showing a paper street (of which there were no physical indications on the ground), does not constitute a waiver of objections to the title because of the public servitude created by the dedication of the street to public use by conveyance by reference to such map, or estop the purchaser from insisting upon a marketable title free from encumbrance.
    C. The fact that pending the closing of the title, the purchaser, at the request of the vendor, took and retained possession of the property until the deed therefor was tendered and rejected because of defect in the title, does not constitute a waiver of his contract right to a “good and marketable title free and clear of all encumbrances,” when it appears that whilst in possession he did nothing but what one so entrusted with the property was bound to do, and immediately tendered possession to the vendor upon learning of the defect.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lane, whose opinion is reported in 88 N. J. Eq. 229.

      Mr. Frederick Seymour and Mr. Borden B. Whiting, for the appellant.

      Mr. Martin Conboy (of the New York bar) (Messrs Griggs & Eardimg on the brief), for the respondents.
   The opinion of the court was delivered by

Trenchard, J.

The bill in this case is to compel the specific performance of a contract for the sale of real and personal property signed by “Midvale Chemical Works, by George W. Hunter and Leslie N. Simpson, trustees” (vendor), and’Ernest C. Klipstein (vendee). The contract was made May 29th, 1917, and immediately thereafter the vendor delivered to the vendee possession, of the property. The agreement provided for the delivery of the deed for the real estate on June 20th, and the time was extended to July 3d by mutual consent. On this latter date the trustees tendered a deed which was refused by the defendant, who thereupon tendered possession of the property to the trustees, which tender was refused. On July 6th a fire occurred on the premises which destroyed a part of the buildings. The trustees then filed this bill which resulted in a decree for specific performance and from it the defendant appealed.

We are of the opinion that the decree was not justified under the evidence.

The defendant declined to accept the deed tendered for the reason, among others, that the complainants’ title was encumbered by various easements, and he now contends that the decree for specific performance was not justified for that reason.

We think that such contention must prevail, and have therefore found it unnecessary to examine and decide any other question.

The contract provided, among other things, for the sale and conveyance by the party of the first part to the defendant of

“all of its real property, consisting of two parcels of land situate at the intersection of the Long Branch division of the'Central Railroad of New Jersey at Bayway avenue, in the section known as Bayway, Elizabeth, New Jersey, one fourteen twenty-two hundredths acres, and the other two ninety-two hundredths acres, total, seventeen fourteen hundredths acres, being the property on which ‘the chemical plant of the party of the first part is located, * * * by good and marketable title free and clear of all encumbrances,”

excepting certain specified mortgages.

Putting out of view the mortgages specified (with which we are not concerned) under such a contract the vendor was bound to have and tender a title free from encumbrances, and dependent for its validity upon no doubtful questions of law or fact. The title must be such as to make it reasonably certain that it will not be called into question in the future so as to subject the purchaser to the hazard of litigation with reference thereto. Vreeland v. Blauvelt, 23 N. J. Eq. 483; Methodist Episcopal Church v. Roberson, 68 N. J. Eq. 431; Van Riper v. Wichersham, 77 N. J. Eq. 232.

Such a title the vendor did not tender and did not have.

The deed tendered to the defendant contained this provision: “This conveyance is made subject to the public and private rights in streets and avenues, crossing or bounding the hereinabovedescribed premises.”

The property in question, while for convenience described in the contract and deed as two lots, was in fact one single piece of property designed for manufacturing purposes, the two lots adjoining one another.

Now, it appears that in 1859 a former owner of the tract, of which the lands in question were a part, made a map thereof (known as the “Bayway map”) and filed it in the county clerk’s office, and later conveyed a lot by reference to such map, describing it as bounding on Brighton street, shown on the map. That constituted a dedication to public use of Brighton street as laid out thereon. McAndrews & Forbes Co. v. Camden, 78 N. J. Eq. 244; Camden v. McAndrews & Forbes Co., 85 N. J. Law 260; Clark v. Elizabeth, 40 N. J. Law 172; Pope v. Town of Union, 18 N. J. Eq. 282.

True, it appears that the street had not been opened nor formally accepted by the municipal authorities, but, nevertheless, its dedication by sale with reference to the filed map constitutes a cloud upon the title entitling the vendee to refuse to take title in the absence of a vacation of such street (McAndrews & Forbes Co. v. Camden National Bank, 87 N. J. Law 231; Vogt v. Mullen, 82 N. J. Eq. 452; Agens v. Koch, 74 N. J. Rep 528), because after such a dedication of a street to public use there exists the right of the public to appropriate the street at any. time when their wants or convenience require it. Trustees of M. E. Church v. Hoboken, 33 N. J. Law 13; Hoboken Land, &c., Co. v. Hoboken, 36 N. J. Law 540; South Amboy v. New York and Long Branch Railroad Co., 66 N. J. Law 623; McAndrews & Forbes Co. v. Camden, supra.

But the complainants contend that Brighton street was vacated in 1915. We do not so read the record. It appears that in 1869 another map of the same tract was made and filed. This map is known as the “Commissioner’s map.” Brighton street appeared thereon but the lines thereof do not coincide by some twenty-five feet with the lines of Brighton street as it appears on the “Bayway map.” It further appears that in 1915 the complainants asked the board of public works of Elizabeth to vacate Brighton street, as shown on the “Bayway map" and also as shown on the “Commissioner’s map.” The board, with both petitions before them, finally adopted an ordinance which purports to vacate the street, as shown on the “Commissioner’s map,” but does not vacate, nor purport to vacate, the street as shown on the “Bayway map.” That the complainants themselves did not regard Brighton street, as shown on the “Bayway map,” as vacated by that proceeding is indicated by the admission of one of them, to the effect that it had not been vacated, made after the contract in suit was signed and while the closing of the title was being discussed.

It also appears that the validity of the alleged vacation proceedings depends'upon doubtful matters of fact, and in such case, of course, the court will not compel a purchaser to take title where, as here, the fact is too doubtful to be settled without litigation and all the parties interested are not in court. Kohlrepp v. Ram, 79 N. J. Eq. 386; Richards v. Knight, 64 N. J. Eq. 196.

The fact that the defendant before making his contract saw the map showing the paper street (of which there were no physical indications on the ground) does not constitute a waiver of objections to the title because of the public servitude created by the dedication of the street to public use by conveyance by reference to such map, or estop the defendant from insisting upon his contract right to a “good and marketable title free and clear of all encumbrances.” Propper v. Colson, 99 Atl. Rep. 385; McAndrews & Forbes Co. v. Camden, supra; Delong v. Spring Lake, 72 N. J. Law 126; Demars v. Koehler, 62 N. J. Law 203.

But this is not all. The complainants’ title appears also to be encumbered by Clifton street and an unnamed street. While neither of them are opened or used, both are delineated upon the “Commissioner’s map.” It is not disputed that both were dedicated to public use. Neither of them were mentioned in the alleged vacation proceedings, and it is not contended that either has been vacated. The complainants’ contention with respect to them is that they are not on any part of the land in question. But this contention is not well founded in fact. They cross tire two ninety-two hundredths acre tract, running north to the Elizabeth river, and most likely seriously impair its usefulness for the defendant’s purposes.

The fact that pending the closing of title the defendant, took and retained possession of the property until the deed therefor was tendered and rejected, does not work a waiver of his contract right to a “good and marketable title free and clear of encumbrances.” He took and retained such possession at the request of the complainants in order to keep the plant going, and upon rejecting the deed immediately tendered possession to the complainants, and throughout did nothing but what one so entrusted with the property was bound to do in order to take care of it.

Without looking into other alleged defects in the title, it seems clear that the title tendered by the complainants by a deed which expressly provided that it was “made subject to the public and private rights in streets and avenues crossing or bounding” the property in question, did not conform to the obligation of the vendor, for the reason that it tendered a law suit to defendant.

The decree below will be reversed, with costs.

For affirmance — Bergen—1.

For reversal — The Chief-Justice, Swayze, Trenchard, Parker, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 12.


text:
    Karl Schaffer, petitioner-appellant, v. Maika (also known as Marie) Krestovnikow, otherwise Mary Schaffer, defendant-respondent.
    [Submitted July 8th, 1918.
    Decided November 18th, 1918.]
    1. In a husband’s suit for annulment on the ground that his wife’s prior marriage was still subsisting, the allowance of an amendment of the answer alleging illegality of the prior marriage is within the sound discretion of the court, and will not lead to a reversal unless a clear abuse of that discretion is shown.
    2. The presumption that a cohabitation known to the parties to be meretricious in its origin continues to be of that character may be rebutted and proved to have become matrimonial and a lawful common law marriage established. The change may be established by proof of circumstances excluding the presumption that the original relation continued and showing satisfactorily that it was changed to matrimonial union by mutual consent.
    3. A cohabitation, meretricious in its origin, becomes matrimonial and a lawful common law marriage is established when, upon being informed of the death of the woman’s first husband (which death removed the only impediment to marriage), the man declares to the woman that she is his wife, and thereafter the two, by habit, conduct and declarations, hold themselves out as husband and wife.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose two opinions therein are reported in 88 N. J. Eq. 192, and 88 N. J. Eq. 523.

      Mr. Abe J. David and Mr. James C. Connelly, for the appellant.

      Mr. Benjamin M. Weinberg, for the respondent.
   The opinion of the court was delivered by

Trenchard, J.

In 1889 the defendant, then Mary Eosenblitt, married Vasili Krestovnikow, a military bandmaster, in the town of Chema-Ostraw, Russia. In 1902 she went through a marriage ceremony with the petitioner, Karl Schaffer, in. Austria, having deserted her first husband at the solicitation of the petitioner. The petitioner and defendant then came to America and lived together in the city of Elizabeth, in this state, from 1902 until 1916, when the petitioner filed this petition for the annulment of his marriage to the defendant in 1902, alleging that it was void, for the reason that her prior marriage to'Krestovnikow, in 1889, was still subsisting. The court below, after hearing, dismissed the petition, awarded the defendant support under the statute pursuant to her counter-claim, and the petitioner appealed.

We are of the opinion that the decree below must be affirmed.

At the outset we remark that there can be no reversal because of the action of the vice-chancellor in permitting an amendment of the answer alleging illegality of the defendant’s so-called first marriage. The allowance of such an amendment is within the sound discretion of the court, and will not lead to a reversal unless a clear abuse of that discretion is shown. Here there is no such showing. Moreover, as we shall presently show, the rights of the petitioner could not possibly have been prejudiced by the amendment.

On the merits we think that the decree was right.

In the view we taire of the case we do not find it necessary to consider whether the defendant’s so-called first marriage was legal or illegal. If we assume that it was legal, as the petitioner contends, still his case fails in view of subsequent events.

It appeared that, after the petitioner enticed the defendant away from her first husband, they went through a marriage ceremony, in 1902, and in that same year came to Elizabeth, in this' state, where they cohabitated, apparently matrimonially, for fourteen years and upwards. We may assume that this cohabitation was illicit in its inception and was known to both parties to be such. If so, of course, in the absence of proof to the contrary, the illicit relation will be presumed to have continued throughout the period of cohabitation, but this presumption is not conclusive. In other words, the presumption that a cohabitation, known to both parties to be meretricious in its origin, continues to be of that character may be rebutted and proved to have become matrimonial and a lawful common law marriage established. Collins v. Voorhees, 47 N. J. Eq. 555; Chamberlain v. Chamberlain, 68 N. J. Eq. 444. The change may be established by proof of circumstances excluding the presumption that the original relation continued and showing satisfactorily that it was changed to matrimonial union by mutual consent. Atlantic City Railway Co. v. Goodin, 62 N. J. Law 394; Mick v. Mart, 65 Atl. Rep. 851; Bey y. Bey, 83 N. J. Eq. 239. In the present case there was such proof.

It appeared that Krestovnikow, the defendant’s supposed husband, died in 1905. We agree with the vice-chancellor that a presumption of his death is established by general neighborhood reputation that he died in the military service, testimony whereof was given by numerous and dependable witnesses. This testimony was admissible (1 Whart. Ev. § 223; 2 Wigm. Ev. § 1605; Ringhouse v. Keever, 49 Ill. 470; Scott's Lessee v. Ratliffe, 5 Pet. 81; Arents v. Long Island Railroad Co., 156 N. Y. 1) and the presumption which thus arose was not overcome by any other evidence.

It also appeared that in 1905, when the petitioner and the defendant were informed of Krestovnikow’s death (which death removed the only impediment to marriage), the petitioner declared to the defendant that she was his wife, and thereafter the two, by habit, conduct and declarations held themselves out as husband and wife. We agree with the court below that these facts establish a lawful common law marriage, and it follows that the petitioner was not entitled to the relief which he sought.

The decree below will be affirmed, with costs.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


author: Bergen, J.

text:
    Neptune Fisheries Company, complainant-respondent, v. Cape May Real Estate Company, defendant-appellant.
    [Submitted July 8th, 1918.
    Decided November 18th, 1918.]
    1. Equity will not decree the specific performance of a contract unless its terms are certain and defined.
    2. Nor will it decree performance with compensation for partial compliance, where the bill does not ask it,- or aver that complainant consents to accept it.
    3. Where the decree rests upon bill and answer, the prayer being limited to general relief, it not appearing that complainant desires partial compliance of the contract with compensation, a decree for partial performance with compensation cannot be sustained.
    4. A contract induced by fraudulent representations as to the value of capital stock to be taken in payment for lands to be conveyed, and improvements to be made on it, will not be enforced in equity.
    5. At a hearing on bill and answer the facts set up in defence must be taken as true.
    On appeal from a decree in 'chancery advised by Vice-Chancellor Backes.

      Mr. James S. Gradwell and Mr. Norman Grey, for the complainant-respondent.

      Mr. Joseph H. Gaskill, for the defendant-appellant.
   The opinion of the court was delivered bj^

Bergen, J.

This is a bill for the specific performance of an agreement by defendant to convey land to complainant, and is based upon an optional contract to become executed if accepted by complainant within five months of its date. The case was determined in favor of the complainant on bill and answer, the vice-chancellor who advised the decree not filing any conclusions either of fact or law.

The bill of complaint charges that the optional contract was dated February 25th, 1911, and accepted by complainant in June following, and as this is admitted by the answer, the completion of the contract is established. Only parts of the contract are necessary to be considered in determining this appeal and may be summarized as follows:

The defendant agreed to convey a good marketable title free of encumbrances; to erect a substantial bank or bulkhead sufficiently strong and permanent to hold in place the material to be filled in, and to fill in the whole of the property, its entire width and depth, “to a grade corresponding to the grade of the city of Cape May,” not less than nine feet above mean low water, and also grant a perpetual easement over other lands of defendant to connect at any time the property to be conveyed with the nearest point of permanency of the tracks of the Heading Eailway Company. What the court adjudged is that the defendant must convey by a deed containing a covenant of warranty, and that upon the report of a master, to whom the matter was referred, ascertaining the cost of erecting a bank or bulkhead, and the grading of the entire property, as provided in the agreement, such cost should be deducted from the consideration price, and upon the tender of the residue, in the stock of complainant company at $10 per share, the defendant should execute the deed to the complainant containing the above provisions.

That the decree is erroneous in requiring a deed with a covenant of warranty not contracted for, needs no discussion, and for this reason alone the decree will have to be reversed. In addition to this the character of the bank or bulkhead is not sufficiently described in the contract or pleadings, to justify its specific performance. Is it to be an earthen bank or a bulkhead built of wood or stone, and what will be sufficiently strong and permanent for the required purpose ? Granting, but not conceding, that the court could award compensation for a failure to put up the bulkhead, of what character of structure should the cost be ascertained, for on this the contract is silent, and a court of equity will never enforce the execution of a contract unless it be certain and defined. McKibbin v. Brown, 14 N. J. Eq. 13. This decree adjudges that the defendant was required by the contract to build a bulkhead, otherwise there could be no reduction in consideration as decreed, and it is left to the master to ascertain the cost of a structure not definitely provided for in the contract which, in effect, is the making of a contract for the parties, to which they have not definitely agreed, and this the court should not do.

The contract also provides, and the decree adjudges, that the complainant shall have the right to connect with the Beading railway, and for that purpose shall have a perpetual easement over the land of defendant necessary for that purpose Where the easement is to be located is not described in the contract, and that must of necessity be a matter of future negotiation by the parties. Specific performance will not be decreed if any of the conditions of the sale remain to be agreed upon by the parties. “If the matter still rests in treaty, or if the agreement, in any material be uncertain or undefined, equity will not interfere.” Domestic Tel. Co. v. Metropolitan Tel. Co., 39 N. J. Eq. 160.

There is another objection to the decree, which is founded alone upon the pleadings, no proofs having been introduced. The contract declares the consideration to be one thousand shares of the complainant company at the par value of $10 each, and the answer of the defendant charges that it was induced to enter into the contract by the statement of the complainant, or someone in its behalf, that sixty per cent, of its capital stock had been subscribed for, or more than sufficient to put up buildings and machinery on the land, to cost $60,000, which was false and untrue. The complainant joined issue on the answer. There can be no doubt that such a representation, if untrue, would injuriously affect the value of the consideration to be paid, for if would leave the stock with little, if any, value, the only asset of the company being what defendant contributed, and amounted to a failure, at least in part, of the consideration. “If it (the contract) has been procured by any sort of fraud or falsehood, or its enforcement will be attended with great hardship or manifest injustice, the court will refuse its aid.” Plummer v. Keppler, 26 N. J. Eq. 481. That to compel this vendor to accept stock, the value of which was intentionally misrepresented, would work a manifest injustice, cannot well be denied, for it would be required to part with its property for $10,000, payable in worthless stock, except as to the value imparted by the land it conveyed.

In the present case the false representation was charged in the answer, and where the decree is based on bill and answer, the facts set up as a defence in the answer must be taken as true. Gaskill v. Sine, 13 N. J. Eq. 130, and other cases to be found in section 262 N. J. Dig. Ann. under title “Equity.”

In this case we have a contract to convey land; to fill it in to a depth of nine feet; to build a bulkhead and to grant an easement over other lands of vendor to be used to connect with a railroad, at any time, which the complainant asks, may be specifically performed, although the prayer is for general relief only. On this alone is based a decree to convey the land and easement with a deduction from the contract price of an amount which the court shall fix to be the cost of filling in and building the bulkhead. There is no averment in the bill or contract sufficiently describing the location of the easement, and on this the minds of the parties have not met. Nor any description of the character of the required bulkhead, for, although the contract refers to a blue-print of it, that does not appear in the record,, nor was any proof made of it.

This contract is entirely too indefinite, in our opinion, to require that it should be specifically performed. If we should assume that the decree, in awarding performance and allowing a deduction for the cost of the improvement contracted for, was for specific performance with compensation, even then it could not be maintained, because no such decree is prayed for in the bill of complaint, the prayer being for general relief without any averment in the bill that complainant would accept part performance with compensation.

No decree for partial performance with compensation can rest upon such a prayer, nor without complainant’s consent to accept with compensation. Besides this there is nothing in the bill or answer which makes it possible for the court to say to what extent the price should be reduced, it being incapable of computation from facts disclosed, and in such case specific performance with compensation will not be decreed. Milmoe v. Murphy, 65 N. J. Eq. 767; 56 Atl. Rep. 292.

Finally, the decree compels defendant to accept in payment stock agreed to be taken through a misrepresentation of its value. This is inequitable. The specific enforcement of contracts rests in the sound discretion of the court, which is chiefly concerned with the equities of the parties in the particular case under consideration. Page v. Martin, 46 N. J. Eq. 585. We think the equities in this case are against the complainant for the reasons given, and the decree appealed from will be reversed and complainant’s bill dismissed, with costs in both courts.

Reversed.

For affirmance — RTone.

For reversal — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.


author: Berger, J.

text:
    Camden Safe Deposit and Trust Company, complainant-respondent, v. Eliza Guerin et al., defendants-appellants.
    [Argued June 24th, 1918.
    Decided November 18th, 1918.]
    Where there is a trust to collect and pay, for life, the income of a fund with a gift over of the fund, which latter fails, because of a violation of the rule relating to perpetuities, and as to it the testator dies intestate, and as a consequence the fund becomes vested in the same persons entitled to the income for life, and all that remains of the trust is the collection of income from the fund and its payment to the persons entitled for life, without discretionary power in the trustee, the trust becomes a passive or simple trust and the owners of the fund are entitled to its possession and to have distribution of any part of the fund not subject to an active trust remaining.

      On appeal from a decree in chancery advised by Vice-Chancellor Learning and reported in 87 N. J. Eq. 72.

      Mr. Harvey F. Carr and Mr. Louis B. LeDuc, for the appellants.

      Mr. Grover C. Richman and Mr. William D. Lippincott, for the respondent.
   The opinion of the court was delivered by

Berger, J.

This appeal presents the question whether the vice-chancellor, who advised the decree appealed from, properly construed the last will and testament of Joseph O. Cuthbert. The will vests in trustees, for whom the complainant has been lawfully substituted, the title to the corpus of the residue of the testator’s estate, subject to a trust to pay the income for life in equal fifth parts to his children, Mary O. Gillespie, Joseph, Allen and Henry C., and one-tenth each to his granddaughter Mary Rue and her mother, the widow of testator’s son Anthony, who predeceased the testator, the share of the income given to Mary Rue’s mother to be paid after her death to Mary Rue; the daughter-in-law is now dead and her daughter Mary thus entitled to be paid the whole income from that share. The trust further provides that upon the death of any son, daughter or of the granddaughter Mary Rue, leaving a widow or husband surviving, one-third of the income given to either shall be paid to such surviving widow or husband, and the remaining two-thirds to the child or children of any decedent son, daughter or his granddaughter Mary Rue. The gift of the income was in each ease for life only.

The trust also provided that—

“Upon the death of all my sons and daughter and granddaughter, Mary Rue. above named, and their surviving husbands and wives, and also after the death of all the children of the first generation of my said sons, daughter and granddaughter, Mary Rue, the trust hereby created shall cease, and the trustees of this my will, or their successors in office, shall part, divide and distribute all the residue of the capital of my estate to and among the lawful grandchildren of my said sons, daughter and granddaughter, Mary Rue, absolutely, in the shares and proportions above directed respecting the income clear of further trust, per stirpes and not per capita."

At the time of the death of the testator' his daughter, three sons and his granddaughter, Mary C. Rue, were his only heirs-at-law. All of testator’s children are now dead, and all, except Joseph, left issue. The granddaughter, Mary, is still living but her mother is dead.

The will of the testator refers to the disposition of real estate as well as personal property and it does not appear from the record whether the real has been converted into personal estate, but, as the vice-chancellor said, this is immaterial, for the estate, whether real or personal, of which the testator died intestate, descends to the same persons. In addition to this the will directs the trustees to sell all of the real estate at such time as they may deem most conducive to the best interests of his children and grandchildren, and, after paying certain encumbrances, to invest the surplus to be held upon the trusts attempted to be created, the plain intention of the testator being, to be gathered from other parts of the will, that tire real estate should be converted into money before distribution. In such cases real estate must be considered as converted into money from the death of the testator, notwithstanding there be a discretion as to time of sale. Wurt's Executors v. Page, 19 N. J. Eq. 365; Crane v. Bolles, 49 N. J. Eq. 373. So, in either event, whether actually converted or not, the residue is to. be disposed of as personalty, no claim being made by any of the parties to elect to take the land if not sold, if that could be done in view of the continuance of some parts of the trust.

Two questions are raised by this appeal, one relating to the period of distribution of the whole or part of the corpus, and the other to the distribution of income.

The vice-chancellor held that as the gift of the corpus' of the estate could not take effect during the period of the lives of persons in being and twenty-one years after, it was in violation of the rule relating to perpetuities and void, and, there being no disposition of the corpus, it descended to the tstator’s heirs-at-law, subject to the operation of such of the provisions of the trust as were lawful. This result is correct and is not contested by any of the parties interested in this litigation.

So, we have a gift of a fund to be held in trust to pay the income for life to the children and a grandchild of the settler, and thereafter to their children for life, the latter being the owners of the corpus by,inheritance for want of the legality of the gift over of the fund, subject to the right, in some cases, to the widow, or surviving husband of a deceased child of the testator to have for life one-third of the income which a deceased child, or the granddaughter of the testator, was given for life.

The first question to be determined is, Are testator’s grandchildren, whose deceased father or mother left no surviving widow or husband, and who are entitled to the entire income on their shares, and also the owners under our statute relating to descent or distributions, entitled to be now paid their share of the corpus? The vice-chancellor held that there could be no distribution of any part of the corpus so long as any of the shares remain subject to the payment of one-third of the income to an existing surviving widow or husband of either of testator’s children, or the possibility of such an event, as in the case of the granddaughter, Mary Sue, she being yet alive with a husband who might survive her. We do not agree with the vice-chancellor in this conclusion, for when the right to the income and the ownership of the corpus becomes vested in the same person and all that remains to be done is the collection of the income from a fund, and pay it over without any qualification to the person who owns the fund, the trust becomes passive, and in equity, the legal estate of the trustee passes to and vests in the owner.

The purpose of the trust in this case was to limit the interest of the children and grandchildren to tire income alone and to preserve the fund for a remainderman who cannot take because the gift over is void, creating an intestacy as to the fund which is now vested in the life tenant, in which event the separation of the two estates comes to an end. Where the purposes of the trust fail, either in whole or in part, by lapse or otherwise, the trustee holds the fund in favor of those who are entitled to it under the statute as the next of kin of the testator (Skellenger’s Executors v. Skellenger’s Executor, 32 N. J. Eq. 659), and the trustee can only hold it so far as is necessary to perforin the duties of any part of the trust remaining active.

The vice-chancellor does not hold that where no surviving wife or husband of either of testator’s children is living, the estate is not then complete in the heir; all he adjudges is that there can be no distribution of any part of the corpus until the death of the last life tenant.

Under a reasonable interpretation of this will the residue of the estate is divided into equal shares, and the income payable on each share to different persons, all having the fee to the corpus by inheritance, and there is no reason why in the cases where the right to the income and the ownership of the fund which produces it belong to the same person, distribution of the principal should not now be made.

Striking out the gift over of the corpus, we have a trust to collect and pay the income on a fund to the very person who owns it, which is in effect a gift of a fund for the benefit of the owner without discretion of any kind in the trustee. In such case the trust being simple or passive, the owner is entitled to possession of the fund. Where there was a gift of a fund in trust to pay it with accumulation of income to a beneficiary at the age of twenty-four years, it was held he may, if exclusively interested, call for immediate pajnnent on attaining the age of twenty-one and qualified to execute a release. Lew. Trusts 689, and cases cited.

This result applies to the children of Allen Cuthbert, one of the sons of the testator, he having died leaving children and no wife surviving, and includes the share of John O. Cuthbert 3d, a deceased son of Allen, his share in the one-fifth of the corpus having vested in him at the death of the testator, subject to the life estate in his father, now extinguished by the father’s death, and his share goes to his legal representative. It also applies to the children of testator’s daughter, Mary C. Gillespie, she being dead without leaving a husband surviving.

The next question to be considered is whether in eases where a child of the testator has died leaving children, and husband or widow entitled to one-third of the income (which was given to their respective wives or husbands for life), the two-tbirds of the corpus of such respective shares should not be presently paid to tli ose who arc entitled to it as distributees under the statute, instead of having the trustee collect the income and pay it over to them. We think that as to such two-thirds of the corpus the character of the trust has become passive, and all that is necessary for the continuance of the trust is the collection of the income from one-third of the corpus and its payment to such life tenant.

By operation of law, because of the failure of the gift over of the corpus, the trust has terminated as to any disposition of it by the trustee under the trust, undertaken to be established by the will, beyond the receipt of the income from one-third of the fund, and that the trustee is entitled to hold for the purpose of collecting the income and pay it to a surviving husband or widow during their respective lives.

By the avoidance of the gift over 'of the corpus all that remains of the trust is the collection and payment, to the surviving husbands or widows of the settler’s children, of the income on one-tliird of some of the shares of the corpus, and to that the trust is now limited, and the two-thirds of the corpus in each of such eases is now distributable.

It is not a requirement that the trustee divest itself, from time to time, of different parcels of a trust estate, but of the right to hold more than sufficient to satisfy the only remaining trusts —that is, to pay the income from one-third of the shares given to surviving husbands and widows of testator’s deceased children. As to the residue of the corpus the possession of the trustee is only that of a naked trust to pay over to those whom it has descended by inheritance.

The vice-chancellor seems to have overlooked the fact that by the destruction of the gift over of the corpus a very large portion of the attempted trust never had any legal existence, and that as to the shares now under consideration, the only active duty imposed upon the trustees is the collection of the income of one-third of such shares and pay it to a life tenant.' It is not so much a question of merger as of the partial termination of a trust by operation of law. This conclusion applies to the shares of testator’s sons Henry G. and Joseph 0., Henry having died leaving a widow and children, and Joseph without a child, leaving a widow.

The third question to be considered is, What is the situation of the corpus to which Mrs. Rue is entitled, she being alive and married with a possibility of her husband surviving her? By the tenth section of the will no part of the corpus is given to her children, the trustees are directed to distribute the residue among the testator’s great-grandchildren, and to the grandchildren of his granddaughter, Mary Rue. It may be that this gift to Mary’s grandchildren was a mistake by the person who drafted the will, but that is not now important, because Mrs. Rue is still living and the gift over of the corpus being void, her children take by inheritance, subject to her life estate and also to the possibility of a life estate by her husband, if he should survive her, to one-third of the income. In other words, one-fifth of the corpus is impounded to pay the income to Mary Rue for life, and in the event of her death to pay of the income given her one-third to her husband for life and thereafter to her children who take by inheritance the principal, so, in this case, the trust remains active and no distribution of the corpus is now permissible, as was held by the vice-chancellor, and from which no appeal has been taken.

The vice-chancellor having determined that no part of the corpus being distributable during the life of any of the life tenants, adjudged that, in the case of Joseph, son of testator, who is dead, leaving a widow surviving, the widow was entitled to one-third of the income for life, and that the income from the two-thirds remaining fell into the estate to be held as corpus until the last life tenant died, and that this rule also obtained to the share of Joseph 3d, the son of Allen, who died after his father, leaving a widow and children, so that this widow and her children get neither income or principal until the last life tenant is dead. Under the view we have expressed, such a disposition of the income is not called for, as there will be no income not disposed of, for all of the corpus not required to sustain the active trusts indicated will be distributed to the persons entitled and there will be no income to accumulate.

As a part of the decree is correct it will be affirmed with such modifications as the results we have reached and expressed in this opinion requires. The appellants having succeeded in the principal matters appealed from they will be allowed costs to be paid out of the fund.

Affirmed with modifications.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Taylor, Gardner - 12.

For reversal — None.


author: Minturn, J.

text:
    Eva Finch, complainant-respondent, v. Harvey V. Finch, defendant-appellant.
    [Argued June Term, 1918.
    Decided November Term, 1918.]
    The husband offered no defence to the charge of abandonment and nonsupport of his wife, but pleaded that having given her when he left her two out of four bank books, representing substantially the savings of the wife and gifts to her from her mother, he had fulfilled his marital duty of support. — Held, that if the money represented by the books were his he had made a gift of it to his wife. — Held, also, that his duty to support his wife was not after the expiration of two years of continuous neglect upon Ms part fulfilled by such gift.
    On appeal from a decree of the court of chancery.

      Mr. Albert Leuly and Mr. William. C. Asper, for the complainant.

      Mr. Charles E. S. Simpson, for the defendant.
   The opinion of the court was delivered by

Minturn, J.

There was no defence interposed by the husband to this suit for alimony by the wife, and the legal correctness of the vice-chancellor’s decree depends upon the answer to the inquiry whether under the conceded facts the conduct of the husband was tantamount to the abandonment and neglect of his wife, as a basis for a decree of maintenance, within the contemplation of the twenty-sixth section of the Divorce act.

For twelve years after their marriage they lived together as man and wife without the development, of serious antagonism until November 11th, 1914, when, owing to a morose mental condition, superinduced by ill health and business embarrassment, he decided to leave home and go to his mother’s home, with the expressed intention of returning when his condition had improved. “Do anything you like with the things,” he said to his wife. “You can get a smaller place with less rent than what we have been paying. When I am better I will come back.” With this parting salutation, and a promise to' write, he left her and neither wrote nor returned. She requested him to let her accompany him, but he cavalierly replied that he did not want to bother with her. She, nevertheless, frequently wrote him, asking for an interview, but he never replied. Her brother met him at a public house, and again at his boarding-house, and interceded as an emissary for his sister, urging defendant to meet and talk with his wife, but his efforts were vain and defendant remained obdurate.

Her solicitor in this case, Mr. Leuly, wrote him several letters, requesting him to call at his office, with a view to a reconciliation, but this effort also for a time proved unavailing. Finally, he called, with his brother, and Mr Leuly went over the situation with him, and urged him to meet his wife and become reconciled, but. this he declined to do. Before he departed he proposed to pay her the meagre sum of $3 per week, which snin^ because of its paucity, the solicitor refused to accept, and this suit was the ultimatum.

If this resume of the facts constituted the entire case, we would have presented to us a case not only of marital neglect, but of manifest abandonment and desertion. But the defendant pleaded and insisted that before he left his wife he handed her two out of four bank books, containing an account of $2,000, representing her savings and gifts to her from others, he had thereby fulfilled his marital duty of support. The learned vice-chancellor found that the transfer of the books was made before the abandonment, and were given to her doubtless as a fair division in the husband’s view of what he considered the joint property.

There is no proof in the case that they were given as a means for her support, and as a release tacitly or otherwise of the performance of the husband’s manifest duty of support. The contention that their acceptance by the wife, in the absence of evidence to that effect, was tantamount to a release of the husband from the performance of his marital duty, is opposed in principle to the well-settled rule on the subject, as evidenced by our adjudications. Beck v. Beck, 78 N. J. Eq. 544; Bacon v. Devinney, 55 N. J. Eq. 449; Westerfield v. Westerfield, 36 N. J. Eq. 195.

Nor can it be observed without noting the fact, as one of conspicuous importance, that over two years of continuous, obstinate neglect upon his part were allowed to pass before the complainant recognizing the futility of conjugal persuasion and effort to induce her husband’s return, or to produce any practical acknowledgment on his part, of his plain obligation of support, filed this bill to enforce her manifest right, and to compel the performance of his palpable duty.

During that interim, unless the gift made to her on the eve of his abandonment were supplemented by the result of her earnings and efforts, we may judicially indulge the presumption that the gift ere this has been seriously, if not entirely depleted, and the complainant thereby left to her own resources.

The decree of the court of chancery will be affirmed.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


author: White, J.

text:
    Frederick L. Smith, complainant-appellant, v. Edward C. Balch, defendant-respondent.
    [Argued June 19th, 1918.
    Decided November 18th, 1918.]
    In order for paragraph 5 of the statute of frauds to apply, it must appear that the parties intended when they made a parole contract that it should not be performed within a year. If this does not expressly or clearly appear and the contract is one which, taking in consideration its subject-matter, may be performed within that period, the statute does not apply, although in fact a longer time was actually taken in performance.
    On appeal from the court of chancery.

      Mr. Frank Bergen, for the appellant.

      Mr. Frederick W. Smith, for the respondent.
   The opinion of the court was delivered by

White, J.

This is a fact case. There was ample evidence to support the express findings of fact in favor of complainant by the special master, who had the advantage of seeing the witnesses and observing their manner of testifying, and the vice-chancellor has affirmed those findings. An examination of the printed evidence has not convinced us of error in this respect. From these findings, taken in conjunction with the allegations of the bill admitted by the answer, it appears that defendant, an operative builder, employed complainant as carpenters’ foreman, and, in effect, general superintendent and manager of a. building enterprise, and entered into a verbal agreement with him to pay him, in addition to his wages of $-±.20 per day. a bonus of $50 for each house which should be built; that when ten houses were completed defendant, at complainant’s request, purchased for complainant a home for the latter and his family to live in, at the purchase price of $4,250, applying the $500 bonuses on the ten completed houses towards the purchase-money, but taking title in his, defendant’s, own name, and giving a mortgage for $3,750 to the vendor for the remainder of the purchase price, the arrangement with complainant being that future bonuses as earned should go towards completing payment of said purchase price; that complainant forthwith took possession of the house and has occupied it ever since as his home; that defendant deducted from complainant’s weekly wage envelope for awhile $5 per week, and afterwards $4 per week, to cover, as defendant said, the interest on said mortgage and the taxes; that upon fifteen more houses being completed defendant on his books credited complainant with $750, being the bonus of $50 per house so earned; that there have since been constructed sufficient houses to entitle complainant, on an accounting, at the bonus of $50 per house, to have his said home conveyed to him free of the mortgage and to be paid $1,150 beside. A decree to this effect was entered in the court of chancery, and complainant appeals therefrom because interest was not allowed on each $50 bonus from the time it was earned (as was allowed by the special master, but denied by the vice-chancellor), and also because he was not allowed $100 per house for a part of the houses which he claimed were constructed under an agreement for a $100 im stead of a $50 bonus per house.

The finding of fact by the special master, affirmed by the vice-chancellor, against the latter contention, in which finding we concur, disposes of the $100 per house claim.

With the interest claim, amounting to $873.90, however, we agree, and the decree will therefore be modified by adding that amount to the cash sum therein decreed to be paid by defendant to complainant. Complainant was charged interest on the mortgage, the principal of which should have been reduced by the bonuses as earned. We think the failure to reduce the principal entitled complainant to interest. No demand was necessary. It was defendant’s duty as trustee to apply the bonuses as earned.

The defendant also has appealed (in No. 34 of this term) from the decree on the ground that it is contrary to the statute of frauds, which was pleaded, and, as to part of the decree, to the statute of limitations, which was also pleaded.

As to the statute of frauds, we think, that as to the verbal arrangement for the purchase of the home, what was done in pursuance of that arrangement gave rise to' a constructive trust in favor of complainant, and that the case falls within the doctrine of Rogers v. Genung, 76 N. J. Eq. 306, and Harrop v. Cole, 186 N. J. Eq. 250.

This view disposes also of the objection of the statute of limitations, for defendant having become subject to a trust to bold the home for complainant’s benefit, while the latter paid for it-by earning bonuses upon the houses built, the defendant was by the same trust bound to apply those bonuses as they were earned to such payment. Buckingham v. Ludlum, 37 N. J. Eq. 137; Lincoln v. Judd, 49 N. J. Eq. 387; Pom. Eq. Jur. § 917.

It is also urged that the case falls under the ban of the fifth paragraph of the statute of frauds, which prohibits any action upon any agreement not to be performed within one year unless the same or some memorandum or note thereof be in writing signed by the party to be charged therewith. We disagree with this contention. In order for this provision of the statute to apply it must appear that the parties intended when they made the contract that it should not be performed within the year. I£ this does not expressly or clearly appear, and the contract is one which, taking in consideration the subject-matter, may be performed within the year, the statute does not apply, although, in fact, a longer time was actually taken in performance. Eiseman v. Schneider, 60 N. J. Law 291; Devalinger v. Maxwell, 54 Atl. Rep. 684; Page Cont. §§ 668, 674, 675.

With the modification herein directed the appeal in No. 31 is affirmed, but without costs in this court to either party.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Kalisch, Black, White, Williams, Taylor, Gardner — 11.

For reversal — None.