author: Trenchard, J.

text:
    Alice C. Caffrey, appellant, v. Lewis W. Caffrey, respondent.
    [Argued June 29th, 1908.
    Decided July 1st, 1908.]
    On the facts of this case, as recited in the opinion, the petitioner is entitled to a final decree of divorce on the ground of willful, continued and obstinate desertion.

      On appeal from a decree of the chancellor, whose opinion is reported in 70 Ml. Rep. 922.

      Messrs. Gar-row & Kraft, for the appellant.
   The opinion of the court was delivered by

Trenchard, J.

This is an appeal from a decree of the court of chancery dismissing the appellant’s petition for divorce.

The parties resided in Camden and were married in that city January 8th, 1902. On the night of the marriage, shortly after the ceremony, and at the home- of the wife’s parents, the defendant told the petitioner, in the presence of her mother, that “he was not fit to be a married man and was going to his home,” and also that he was being attended by Dr. L.-and “would be better after awhile.” The defendant then went to his home and the petitioner remained with her parents.

The defendant called upon the petitioner two or three nights following their marriage and then remained away about three weeks, when he called and said he would “take her to housekeeping in June.” On this last-mentioned visit he told his wife that “he had been to- Mr. Hilton, the minister who married us, and asked him to tear up our marriage certificate,” and when she asked him “what he did that for,” he said, “that he was afraid of Miss E.-M.-.” He never, after the night of the marriage, referred to his physical condition, nor gave that- as an excuse for not living with his wife. He never visited the petitioner again, and never contributed to her support, although he resided in the same neighborhood.

In February, 1902, after frequently asking her husband to provide a home for her and to support her, the wife brought a suit for alimony. The parties next met, as a consequence of that suit, at the office of the solicitors of the petitioner. At this interview the husband promised to goi to housekeeping with his wife in June, 1902, whereupon the suit for alimony was abandoned.

In June, 190.2, the wife, having heard nothing from her husband, went with her mother to. his place of business in Camden to remind him of his promise. She asked him to carry out his promise to take her to housekeeping and he replied that he could not then, but would later on. Whereupon the wife said to him, “You will go back on your word,” and he replied, “No, I won’t. I will go right down to Squire Schmitz’s with you.” Thereupon he took his wife to Squire Schmitz’s office, where he signed a paper-writing, as follows:

“This agreement made this tenth day of June. A. D. 1902 between Lewis Caffrey and his wife Alice Caffrey both of the City and County of Camden and State of New Jersey, I Lewis Caffrey give to my wife Alice Caffrey the Privilege to go and come whenever she likes in male- and female company at Day or night. As I have not the time to go with her, and she has the right to live with her parents until I am ready to-go to housekeeping or go with my wife parents to live and when I go-to live with her parents I hereby agree to pay one' half of the expenses of the keeping of the house. That is in a few months time it is my intention to live with her as I cannot at present.
“I Alice Caffrey agrees to extend the time from a few months to the month November 1902 but it is agreed that she will not go and live with his mother,
“Lewis W. Caffbey.
“Signed Sealed and delivered in the presence of “Philip Schmitz.”

Within two weeks after making this so-called agreement, the husband, without the knowledge or consent of his wife, went “out west,” where he remained about one year, during which time he had no communication with his wife and furnished her no support.

In the summer of 1903 the husband returned to the neighborhood of Camden, where his wife and her father and her mother saw him- on the streets of Philadelphia and Camden two or three times, in company with Miss F.-M.-, and on such occasions the defendant avoided them by crossing the street or-going up a side street. On one occasion his wife, in the presence of her mother, went up to- him and tried to engage him in conversation, when he said, “I don’t know you.”

On April 6th, 1906, the wife filed the petition for divorce in this cause on the ground of desertion. The matter was referred! to a special master, who advised a decree dissolving the marriage between the parties. The learned chancellor, without filing an opinion, by decree dated December 31st, 1907, dismissed the petition, and from such decree the petitioner appeals to this court.

That the husband has never lived with his wife and has never supported her, although often requested so to do, clearly appears from the depositions. And this, too, without any fault upon the paid; of the wife. Such voluntary separation of the husband from the wife, for the prescribed time, without the latter’s consent, without justification, and with the intention of not returning, is desertion upon the part of the husband. Sergent v. Sergent, 33 N. J. Eq. (6 Stew.) 204.

As bearing upon the consent of the wife, and the intention of the husband, the so-called agreement of June 10th, 1902, requires consideration.

Without reference to the fact that it was not signed by the wife, or its other informalities, it is certain that the agreement did not give to either spouse, as against the other, the right to continue the separation. Miller v. Miller, 1 N. J. Eq. (Sax.) 391; Aspinwall v. Aspinwall, 49 N. J. Eq. (4 Dick.) 302.

Consequently, the only question is whether it indicates or gives rise to a change in the mental attitude of either party, showing consent to separation instead of protest on the part of the wife and obstinate persistence on the part of the husband.

The answer to this question depends not alone upon the language of the paper-writing, but upon a consideration of all the circumstances of the case as disclosed by the evidence. From these we incline to think that, in extending the time for going to housekeeping from June 10th, 1902, until the next following November, the wife was but yielding to the necessities of the case, still recognizing, as the law recognized, the continuance of marital obligations, both for herself and her husband. We think it equally clear that the husband was fully aware of this state of mind of his wife and remained separated from her, not because he believed she assented to such separation, but because his resolution never to cohabit with his wife was unaltered. Such a state of facts constitute willful, continued and obstinate desertion. Power v. Power, 66 N. J. Eq. (21 Dick.) 320; 1 Bish. Mar. & D. (6th ed.) § 805b.

This conclusion as to the state of mind of the parties we incline to think is compelled by the undisputed facts. The husband appears to have been infatuated with another woman, and, immediately after the marriage ceremony was performed, showed his determination, always adhered to, not to cohabit with his wife. He was the owner of a house in Camden, but refused to go to housekeeping there or elsewhere, or to in any manner live with or support his wife. When she began her suit for support he agreed to provide a home for her in order undoubtedly to get rid of the suit. When the suit was discontinued upon such promise he utterly failed to keep his agreement. When the wife again sought to make him fulfill his promise he proposed, as we think, for the purpose of quieting her, to sign the paper-writing under discussion. That his conduct was fraudulent from the beginning is shown by the fact that within two weeks after this last interview with his wife, without her knowledge or consent, he rented his house in Camden and absconded, remaining in the west for a year, and never thereafter communicated with her or made any provision for her support.

We incline to think that the wife, in yielding, under these circumstances, to her husband by granting the extension of time for going to housekeeping, did not consent to a separation even for the limited time named in the writing of June 10th, 1902, but, however that may be, the utmost effect that can be given to her acquiescence is to regard it as a consent to separation until the month of November, 1902. So considered, there rested upon the husband the undoubted duty to return to her and to provide a home for her at that time. In that duty the husband failed. He had fled and his whereabouts remained unknown until the following summer. Such conduct taken in connection with his failure to seek his wife upon his return to Camden in the summer of 1903, and his studied efforts to avoid her and her parents, rendered his conduct willful, continued and obstinate desertion for the statutory period prior to the filing of the petition.

The decree of the court below should be reversed, with costs, and the record forthwith remitted to the court of chancery to the end that a final decree for a divorce from the bond of matrimony may be made in that court.

For affirmance — None.

For reversal — The Chancellor, Chief-Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Voorhees, Min-turn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill — 16.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Peter Schlicher, complainant and respondent, v. John R. Whyte, defendant and appellant.
    [Argued June 18th, 1908.
    Decided November 16th, 1908.]
    On accounting between partners, the partnership ledgers kept by bookkeepers are competent original evidence, the bookkeepers being regarded as agents of each partner to keep his account with the firm.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Eeed.

      Mr. George O. Yanderbill, for the complainant and respondent.

      Mr. Frank S. Katmibach, Jr., for the defendant and appellant.
   The opinion of the court was delivered by

Parker, J.

This is a suit for an accounting between former partners. It was before this court in another aspect, on appeal from the decisión of Vice-Chancellor, now Justice, Seed, reported in 61 N. J. Eq. (16 Dick.) 158; affirmed on appeal, 65 N. J. Eq. (20 Dick.) 404.

The present appeal brings up the decree entered on report of a master, adjudging that the complainant below is entitled to recover from the defendant $2,071.76, and overruling certain exceptions to the master’s report, which will be taken up in the order in which they are discussed by appellant’s brief.

The third exception is that the master admitted in evidence the partnership ledgers without the production of books of original entry.

The fourth exception is that the master based his report upon entries in the ledgers without proof of the handwriting therein.

The fifth exception is that the master charged the defendant with items of cash shown on the ledgers without other proof.

The point made by appellant is, in substance, that the ledgers were not available as evidence without the day books or other books of original entry. The proof shows that the parties as partners kept partnership books by paid bookkeepers, and that these books consisted of memorandum daj'- books called “blotters” and “ledgers.” The blotters seem to have disappeared. The ledgers were fully identified as those of the partnership.

Counsel rely upon the eases in our reports, holding that as between tradesmen and their debtors the books of account of original entry are admissible, but that other books, in which these original entries are posted are admissible only as supplementary to the books of original entrjr, so that the whole of the account should appear, and that the ledgers without the books of original entry are not admissible. Bonnell v. Mawha, 37 N. J. Law (8 Vr.) 198; Rumsey v. New< York and New Jersey Telephone, Co., 49 N. J. Law (20 Vr.) 322; Diament v. Colloty, 66 N. J. Law (37 Vr.) 295.

These decisions undoubtedly indicate the law of this state on that subject, but in our view are not" applicable to this case.. The parties here were partners, so that each partner was an agent for all the others as to partnership transactions. So also, the bookkeepers employed by them from time to time were agents for every partner as against the others, and, therefore, entry in the ledgers by a bookkeeper in the course of his employment constituting a charge against one partner in favor of the others, amounted to an admission by the partner against whom it was charged. In this view of the case the ledgers were properly admitted.

The next point made by the appellant is based upon the question of construction of the partnership agreement. The original firm consisted of Whyte and a man named Vogel, whoi had accounts on their books for collection at the time of the partnership agreement now in question, which was executed on the 22d day of September, 1897, and under which the complainant, Schlicher, came into the firm. One of these accounts was against Whyte, mostly for cash advanced to him or paid for his use. The partnership agreement provided that Whyte and Vogel should contribute certain chattels belonging to the old firm, at a valuation, and that Schlicher was to pay a sum in cash to offset this contribution; said Whyte and Vogel also contributed to said copartnership the book accounts “on their books from the 22d day of September, 1897.” The appellant contends that this clause means that the book accounts accruing after the 22d day of September, 1897, are meant. The master held, and the court below held, its meaning to be that the old accounts then standing on the books were the ones referred to and were to be regarded as assets of the new partnership and not the property of the old partners. In other words, that the word “from” was an inadvertence and should be construed to mean '“prior to.” We concur in this view. The clause in question is meaningless if read literally, for the accounts arising after September 22d, 1897, are those of the three partners. What was evidently meant is that accounts then standing on the books should enure to the new firm, so that on collection and division of the same Schlicher would get his share. The importance of this construction lies in the fact that among these accounts was the one against Whyte himself to a considerable amount. This account, in our judgment, was properly included in the finding of the •court below, and was admissible on the same principle already laid down in reference to other items in the ledgers.

The third point made by the appellant is that the master failed to state an account. It is true that the master did not annex to his report and finding any account with items. He found and reported, among other things, that the net worth of the firm of Schlicher & Whyte, on September 1st, 1899,' was $3,r 391.99, one-third of which belonged to Whyte and two-thirds to Schlicher; that Whyte owed the firm $3,202.42; that Whyte’s interest in the firm was one-third of the first amount mentioned, or $1,130.66, so that the balance due from Whyte to Schlicher was $2,071.76. He annexed to his report the testimony taken before him, and also copies of the books, so far as the entries in the same related to the determination of the matter.

We do not think it was necessary for the master to go further than he has done in the matter of stating the account. The decree did not direct him SO' to do. It required him “to take a mutual account of all dealings and transactions between the complainant and defendant as partners,” with power to examine witnesses * * .* and to report what, upon said accounting, should appear to be due from each of said parties to the other, and also the balance, which upon the said account shall appear to be due from either party to the other. The master seems to have fully complied with the requirements of this decree. The appellant complains that the master does not show how he arrives at the figures of the net worth of the firm; that the result cannot be obtained from the evidence, and that the master evidently intended to adopt the figures submitted by Schlicher, which are $59.22 less than the net worth as reported by the master. All that need be said as to this is that if the master made an error of $59.22 in the net worth, it resulted in an increase of $19.74 in Whyte’s share of the assets, thereby reducing the balance due from Whyte to that extent; so no harm has been done the appellant.

The annexation of an itemized account as a schedule to the report was under the circumstances a matter of form, as the figures substantially appeared in the depositions.

The decree appealed from will be affirmed.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Eeed, Tkenchard, Parker, Voori-iees, Min-turn, Bogekt, Vredenburgi-i, Yroom, Green, Gray, Dill • — 15.

For reversal — Uone.


text:
    Henry W. VanWagenen, administrator, &c., complainant, v. Rose M. L. Bonnot, defendant, respondent, and Frederick F. Guild, substituted administrator, &c., defendant, appellant.
    [Submitted December 4th, 1907.
    Decided June 15th, 1908.]
    The proviso in the Evidence act (P. L. 1900 p. 868) that the section permitting parties in civil actions to be sworn as witnesses, &c., “shall not extend to permit testimony to be given by any party to the action as to any transaction with or statement by any testator or intestate represented in said action” renders the surviving party to a transaction consisting of a donatio causa mortis incompetent to testify that a closed parcel then delivered, remained in statu quo, until after donor’s death and as to its contents when opened, because such testimony would establish by necessary inference its contents at the time of delivery, and on that point the deceased, if living, could contradict the survivor.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 7á? N. J. jHq. (¡2 Bucli.) If-S.

      Messrs. Woodruff & Bievens, for the appellant.

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

Parker, J.

The decree appealed from is based on a bill of interpleader by one VanWagenen, as administrator of John Whitehead, deceased, who was in his lifetime the administrator of Minerva A. Harrison, deceased, and had possession of savings bank books showing deposits in her name in three banks and amounting, without interest credited during this litigation, to over $9,000. These books were claimed in Mr. Whitehead's lifetime by Rose M. L. Bonnot, the present respondent, as having been the subject of a gift causa mortis from Miss Harrison to herself; and at the time of Mr. Whitehead's death, in February, 1905, an action of replevin had been brought against him as administrator by Mrs. Bonnot and was then pending. VanWagenen, the complainant below, having been appointed administrator of Whitehead and discovering this -situation, filed a bill of interpleader against Mrs. Bonnot, and Mr. Guild, as substituted administrator of Miss Harrison; and having deposited the bank books in court was eliminated from- the controversy, which thereupon proceeded as between the parties to this appeal.

The facts and circumstances surrounding and bearing on the last illness and death of Miss Harrison, her relations with Mr. Bonnot and the latter’s daughter Ernestine, and the transaction relied on as constituting the donatio mortis causa now in question, are so fully and accurately stated in the opinion of the learned and experienced vice-chancellor who heard the cause, that any extended recital of them here, except incidentally, would be needless repetition. We concur with the vice-chancellor in the opinion that savings bank books are proper subjects of gifts causa mortis. We also concur in his conclusion that the testimony of Ernestine, the daughter of Mrs. Bonnot, while unsupported by that of any other witness, was of sufficient weight to satisfy a court of the facts as to the delivery by the deceased of the package referred to in her testimony, and as to what was said and done at the time of such delivery in the presence of the deceased. But, as will be seen from an examination of thé vice-chancellor’s opinion, which fully slates the evidence in this particular, assuming the delivery of a package or parcel as satisfactorily proved, the burden still remained on Mrs. Bonnot to show by clear and satisfactory evidence that this package then contained the bank books in question. The package was described as a “long parcel.”' It was wrapped up, when delivered, in a filthy rag, soiled with sputum, and smelling so foul that it had to be hung outside the window in the open air. It was handed by Miss Harrison to Mrs. Bonnot with the words: “Take them; put them in your satchel; they are yours.” The contents of the package were not stated by Miss Harrison or by anyone in her presence. It was not unwrapped at the time of delivery, and as claimed by respondent,, not until four days thereafter at her daughter’s house. A memorandum for a will had been written; which will be found in full in the vice-chancellor’s opinion, and as will be seen, makes no mention of bank books. In short, at the time there was nothing-to indicate its contents except that it was a “long” package; that Miss Harrison, at a prior delivery, which was properly held by the vice-chancellor to be ineffective, said to Ernestine, “I want your mother’s house (on which there was a mortgage of some $1,500) to be free. I want her to rest;” and to Mrs. Bonnot, “Take this,, they are yours. You will find they will be valuable to you;” that at the second and effective delivery she used the words first above-quoted, and that she afterward said that Mrs. Bonnot “could rest now.”

All this is fully as consistent with the hypothesis that the package contained bonds and mortgages or paper money, or certificates of stock, or railroad or other bonds, as with the bank book hypothesis; in fact, rather more so, as any of the suggested securities when wrapped up would seem more likely to lead a witness to describe the package as “long” than the savings bank books, which would measure about four by six and a half inches.

The testimony of Ernestine about the subsequent opening of the package has no weight in fixing the contents of the package at the time of delivery, if, indeed, at the time of which she testifies, which was the Thursday following the tradition of the package. She was at her sister’s in Newark; heard her mother exclaim in another room, went in there and found the dirty rag on her mother’s knees and the latter showed her the bank books-That the bank books had been taken out of the rag is, of course, either hearsay or assumption based on the proximity of the respective articles at the time.

The court below naturally realized the impossibility of sustaining a finding on such evidence that the bank books had been in the package at the time it was delivered, and properly remarked in disposing of the case that the direct proof of that claim rested entirely on the evidence of Mrs. Bonnot herself. She was the first witness called and objection was almost immediately made to her competency to testify as to statements made by or transactions with the deceased, and the court said to her counsel in part:

“The right of this witness' to this money will have to be established by evidence other than hex own, and it will not be on technical or sharp points. Pier own evidence cannot give her the right to this money, and I do not take it you mean to establish your case in that way. You are entitled to have in all evidence that she may properly give, and also all evidence that may be fairly construed not to come within the prohibition of the statute, and I do not mean to-close you out from putting in anything which you have got a fair right to argue is proper.”

This was equivalent, as we read it, to satying that her testimony, if not clearly incompetent, would be received and final ruling on it reserved until the decision of the case. According^, Mrs. Bonnot went on to testify that from the time she received the package from the hands of Miss Harrison, or at all events from the time she left the sick room with it, the package had remained in her satchel undisturbed in any way until she opened it, and finding the bank books in it gave vent to the exclamation which attracted Ernestine to her side.

If the learned vice-chancellor was right in receiving and weighing this as competent testimony, his decision awarding the bank books to Mrs. Bonnot -was probably warranted by the evidence; but our careful and somewhat extended consideration of the case had led us to the conclusion that he erred in so doing.

As we have already seen, there was nothing definitely disclosing the contents of the package at the time of delivery. From that time until the time when Ernestine saw the bank books in her mother’s hands, there is a hiatus. Manifestly, to show a gift of the bank books it must appear that they were contained in the package at the time of delivery; but there being no direct evidence of this, resort must be had to inference; and from competent proof that there had been no change of any kind in the package during the time in question, and that at the time of opening it, the books were found, the inference would necessarily follow that they were in it at the time of delivery. Testimony to prove these facts coming from the mouth of anyone but an interested party like Mrs. Bonnot, would have been competent and probably sufficient. But her testimony, as the court below fully recognized, was incompetent as to any transaction with or statement by Miss Harrison, under the proviso of our statute (P. L. 1900 p. 363 § 4), which is all that remains of the old common law rule disqualifying parties generally as witnesses. The tradition or delivery of the package (claimed to contain the books) was such a .transaction; and an essential feature was the presence of the books. The test laid down in our decisions in ascertaining what is a “transaction with” the deceased about which the other party to it cannot testify is to inquire whether, in case the witness testify falsely, the deceased, if living, could contradict it of his own knowledge. Smith v. Burnet, 35 N. J. Eq. (8 Stew.) 314, 322; Woolverton v. Van Scykel, 57 N. J. Law (28 Vr.) 393; Provost v. Robinson, 58 N. J. Law (29 Vr.) 222; Dickerson v. Payne, 66 N. J. Law (37 Vr.) 35.

Manifestly, if the package had been opened at the time of delivery and again wrapped up, Mrs. Bonnot would be incompetent to testify to its contents at that time, because deceased, if living, could contradict her. Under the circumstances of this case, however, all the direct knowledge was presumably on Miss Harrison’s side. She must have wrapped up the package herself, and, if living, could contradict any testimony tending to show its contents. And whether such testimony be direct or inferential is of no moment, so long as its logical result is, if admitted and believed, to establish as a fact anything forming part of a transaction with the deceased which said deceased might directly contradict. And as Miss Harrison could, if living', be heard to contradict anv statement that the package contained the bank books, Mrs. Bonnot is as incompetent to connect by her testimony the books displayed to her daughter with the closed package delivered in'the sick room as she would have been to say that it had then been opened and the books themselves given to her.

Concluding, therefore, that the court of chancery should not have received or considered the testimony of Mrs. Bonnot on the point in question, and the finding of that court not being sustainable without such testimony, it follows that the decree below will be reversed and the cause remitted with directions that a decree be entered that Frederick F. Guild, as substituted administrator of Miss Harrison, is entitled to the bank books in dispute.

For affirmance — None.

For reversal — The Chancellor, Chile-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Bogert, Vre-DENBURGH, VrO'OM, GREEN, GRAY, DlLL — 14.


author: Bergen J.

text:
    Gustav W. Lembeck et al., executors of the last will and testament of Henry Lembeck, deceased, appellants, v. Emma Lembeck et al., respondents.
    [Submitted June 18th, 1908.
    Decided November 16, 1908.]
    Where, on a bill filed by executors and trustees for the construction of their testator’s will, the decree omits to adjudge all the matters considered, and on appeal no complaint is set out in the petition of appeal that the appellant is aggrieved by such omission, an appellate court will only review so much of the decree, or questions raised by the pleadings which the decree ignores, as the petition sets forth as the grounds upon which the appeal is rested.

      Oil appeal from a decree of the court of chancery, reported in 73 N. J. Eq. (3 Buch.) 487.

      Messrs. Hudspeth & Carey and Mr. Benjamin C. Pascus (of the New York bar), for the appellants.

      Messrs. Collins & Corbin, for 'Katie and Victor H. Lembeck, respondents.

      Mr. Robert J. Bain, for Albert B. Lembeck, respondent.

      Mr. William M-. Rysdyk, for Emma Lembeck et. al., respondents.
   The opinion of the court was delivered by

Bergen J.

The bill of complaint was filed in this cause by the executors and trustees named in the last will and. testament of Henry Lembeck, deceased, and from a decree made in the court of chancery this appeal was taken. The decree should be affirmed, for the reasons set out in the opinion of former Chancellor Magie, in Lembeck v. Lembeck, 73 N. J. Eq. (3 Buch.) 427, so far as they are applicable, but in order to avoid any misconception that'may arise’ from the adoption of the opinion, which contains a conclusion not expressed in the decree, we consider it proper to state that we do not approve that portion of the opinion which expresses the view that under the will of Henry Lembeck, his executors have no power to sell the stock of the Lembeck & Betz Eagle Brewing Company, during the widowhood of testator’s widow.

The only judgment contained in the decree on this point is, “that the executors, unless they consider it advisable, need not sell or divide the stock of the testator in the Lembeck & Betz Eagle Brewing Company, until twenty-five years have elapsed after the decease of the testator.” The effect of this judgment and decree is that there is vested in the executors a discretionary power to sell the stock, which discretion need not, but may be, exercised at any time Avithin the period of twenty-five jears, but it does not adjudge that the executors have the right of exercising such discretionary power during so much of the widoAvliood as may be included Avithin the twenty-five years. Thus, AAdiile the opinion beloAV, erroneously as we think, declares that no poAver of sale existed, during so much of the period as Avidowhood continued, the decree does not so adjudge, nor do the appellants, in their petition of appeal, claim that any point, on which instructions are sought, was not considered and determined, or that they are aggrieved because of any omission, and therefore the question of the power of sale during continuance of widowhood is not presented to us in the present state of the record. That part of the petition of appeal relating to the power of sale is confined to that portion of the decree which adjudges that if the power be exercised Avithin tAventy-five years all of the stock must be sold. We are of opinion that the stock may be sold during the AvidoAvhood of the testator’s widoAV, the proceeds to be held upon the same trusts as the stock, but this matter not being included in the decree, it is not subject to the present appeal. Without adjudging the question of the correctness of the construction of the testator’s aaoII, as declared in the opinion of the court beloAV on the question of the power of the executors to sell the stock during the AAridoAArhood of testator’s widow, because it is not included in the decree, we are of opinion that, for the reasons given by the chancello]’ in support of the decree appealed from, it-should be affirmed.

For affirmance — Tete ' Chancellor, Ci-iief-Justioe, Garrison, Savayze, Reed, Trenchard, Parker, Bergen, Voorhees, Mint urn, Bogert, Vredeneurgh, Vroom, Green, Gray, Dill — 16.

For reversal — None.


author: Per Curiam.

text:
    Joseph J. Hartman, complainant and respondent, v. Anna M. Hartman, defendant and appellant.
    [Argued June 18th, 1908.
    Decided November 16th, 1908.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 71 All. Rep. 417.

      Mr. Ohau-ncy IL. Beasley and Mr. Samuel J. McDonald, for the appellant.

      Mr. Charles F. Herr, Mr. James M. Trimble and Mr. Samuel Iialisch, for the respondent.
   Per Curiam.

This case involves only questions of fact. We agree with the conclusions of the learned vice-chancellor. The decree under review should therefore be affirmed.

The application for counsel fee is denied.

For affirmance — Ti-ie Chancellor, Chiee-Justice, Garrison, Swayze, Reep, Trencharp, Parker, Bergen, Voori-iees,-Minturn, Bogert, Vrepenburgh, Vroom, Green, Gray, Dill —16.

For reversal — None.


text:
    Sara D. Collins, complainant and respondent, v. Mary C. Leary et al., defendants and appellants.
    [Argued June 22d, 1908.
    Decided November 16th, 1908.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Plowell, whose opinion is reported in 71 Ail. Rep. 60S.

      Mr. John M. Enright, for the appellants.

      Messrs. McCarter & English, for the respondents.
   Per Curiam.

The order under review herein will be affirmed, for the reasons expressed in the opinion of Vice-Chancellor Howell.

For affirmance^-'Ti-ie Chancellor, Ci-iiee-Justice, Garrison, Swayze, Reed, Trenohard, Bergen, Voorhees, Min-turn, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill — 15.

For reversal — Parker—1.


text:
    Melbourne F. Middleton, administrator of Ida Mildred Carter, deceased, appellant, v. William D. Carter, substituted administrator, respondent. Melbourne F. Middleton, administrator of William L. Carter, deceased, appellant, v. William D. Carter, substituted administrator, respondent.
    [Argued June 30th, 1908.
    Decided November 16th, 1908.]
    On appeals from decrees of the prerogative court, reported in IS N. J. Eq. (S Buck.) 62J, 61¿.

      Mr. Timothy J. Middleton and Mr. John J. Crandall, for the appellant.

      Mr. Lewis Starr and Mr. Allen S. Morgan, for the respondent.
   Per Curiam.

The decrees that are under review in these cases will be affirmed, for the reasons expressed in the opinions of Magie, ordinary.

For affirmance — The Chancellor, Chiee-Justice, Garrison, Swayze, Reed, Trenoi-iard, Parker, Bergen, Yoori-iees, Minturn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill —16.

For reversal — None.


text:
    John Leonard et al., trading as John Leonard & Company, complainants and respondents, v. Charles Bosch et al., defendants and appellants.
    [Submitted July 6th, 1908.
    Decided November 16th, 1908.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinions are reported in 72 N. J. Eq. (2 Buck.) 187, and 78 N. J. Eq. (8 Buck.) 488.

      Mr. Ralph W. E. Bongos and Mr. Thomas E. French, for the appellants.

      Mr. Robert H. McCarter, attorney-general, for the respondents. '
   Per Curiam.

The decree under review will be affirmed, with costs, for the reasons set forth in the opinions of Vice-Chancellor Emery.

For affirmance — Ti-ie Chancellor, Chief-Justice, Garrison, Swayze, Reed, Trenohard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Green, Gray, Dill —16.

For reversal — None.


text:
    Meyer C. Nelson, complainant and respondent, v. The New Jersey Short Line Railway Company, defendant and appellant.
    [Submitted June Term, 1908.
    Decided November 16th, 1908.]
    On appeal from a decree adVised by Vice-Chancellor Stevenson, whose opinion is reported in 73 N. J. 1Hq. (3 Buck.) 187.

      Mr. Linton Scdterthwcdt, for the appellant.

      Mr. Bfkraim Gutter, for the respondent.
   Per Curiam.

The decree should be affirmed, for the reasons stated by the vice-chancellor. The agreement by the complainant in his lease that a railroad then under way should go through and not be opposed by him in any way, did not, as the defendant argues, operate to lessen his estate in the land. It amounted only to an agreement to allow that matter to be controlled by the lessors. That this is the correct view is shown by the subsequent agreement of the lessors that if an agreement was made by the owner with a railroad company for the construction of a railroad across the farm, the lessee should be paid for any damages he might sustain as tenant, and that the clause in the lease in relation to a railroad was not intended to prevent him from being paid for any such damages. This was a construction of the lease by the parties thereto, and in harmony with tlio language of the lease itself. Whether the effect is not such as to require the compensation to the tenant to be taken out of the amount of the award by the commissioners already paid into the court of chancery is a question which may properly arise on the distribution of that fund or on proper proceedings by the railroad company, but is not now before us.

For affirmance — Ti-ie Chancellor, Oi-iiee-Justice, Garrison, Swayze, Reed, Trenci-iard, Parker, Bergen, Minturn, Bogert, Vredenburgi-i, Vroom, Green, Gray", Dill — 15.

For reversal — None.


text:
    James M. Seymour, Jr., complainant and respondent, v. Rebecca Goodwin, executrix, &c., of Hannibal Goodwin, deceased, defendant and appellant.
    [Submitted July 6th, 1908.
    Decided November 16th, 1908.]
    'On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 68 N. J. Eq. (2 Robb.) 189.

      Mr. Chauncey 6. Parker, for the appellant.

      Mr. Thomas L. Raymond, for the respondent.
   Per Curiam.

It has previously been decided that the -bill of complaint herein sets up a good cause of action. Seymour v. Goodwin, 68 N. J. Eq. (2 Robb.) 189; 69 N. J. Eq. (3 Robb.) 833. The cause came on to final hearing before Vice-Chancellor Stevens, who held that the material allegations of the bill were sustained by the evidence, and thereupon advised a final decree for the complainant. We agree with his conclusions, -and the decree should therefore be affirmed, with costs.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, Trenchard, Bergen, Yoorhees, 'Min-turn, Bogert, Yredenburgh, Yroom, Green, Grai, Dill —15.

For reversal — None.


text:
    Martha Shafer, appellant, v. Zachary Taylor Shafer, respondent.
    [Affirmed without opinion, July 1st, 1908.]
    On appeal from a decree of the court of chancery.

      Mr. (?. Dore Cogswell, for the appellant.

      Messrs. Bcovel & Boyle, for the respondent.

      For affirmance — The Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill — 15.

      For reversal — None.


author: Pitney,-Chancellor.

text:
    Henry V. Massey v. Camden and Trenton Railway Company.
    [Decided November 20th, 1908.]
    The court which has appointed a receiver for a railroad will grant permission for a suit in a federal court to foreclose the first mortgage; there having been for'four months default in payment of interest, and the conditions existing which by the terms of the mortgage make it the duty of the trustee to foreclose.

      The Provident Life and Trust' Company of Philadelphia, trustee for mortgage bondholders, having filed a petition praying leave to file a bill in the Hnited States circuit court for the district of New Jersey for the foreclosure of a mortgage given by the Camden and Trenton Railway Company to said trustee for the security of bondholders, and Daniel ICillian, one of the bondholders, having filed an answer to the petition, the matter came on for hearing before the chancellor upon tire petition and answer.

      Messrs. Diclcson, Beitler ■& McGouch (of the Philadelphia bar), for the petitioner.

      Mr. Spencer Simpson, for Daniel Killian, respondent.

      Mr. John M. Dickinson, for Wilbur F. Sadler, Jr., receiver.
   Pitney,-Chancellor.

Ify decree made in this cause on the 18th day of February last, it was adjudged that the Camden and Trenton Railway Company was insolvent, and Wilbur F. Sadler, Jr., was appointed receiver for the creditors and stockholders of the company, with the usual powers, pursuant to sections 65 and 66 of the General Corporation act. P. L. 1806 p. 298. The receiver entered upon the discharge of his duties and took possession of the property of the defendant corporation, consisting principally of a system of railway situate in the counties of Mercer and Burlington in this state, with the rolling stock and other appurtenances thereto, and certain shares of the capital stock of two electric light and power companies of this state. He is still in possession and is operating the railway under the orders of this court.

The property of the defendant corporation at the time of the appointment of the receiver was and still is subject to the encumbrance of two mortgages made by the Camden and Trenton Railway Company to the Provident Life and Trust Company of Philadelphia, trustee; the first mortgage, dated November 1st, 1899, to secure $750,000 of mortgage bonds, of which $710,000 were and are outstanding, and the second mortgage, dated July 1st, 1901, given to secure $1,750,000 of mortgage bonds, of which $622,500 were and are outstanding. The appraised value of the total assets of the company that came to the hands of the receiver is less than $800,000. Unsecured claims aggregating more than $300,000 have been presented to the receiver.

The railway company is, and has been for more than four months, in default in the payment of the interest coupons upon the first mortgage, and by the terms of that instrument it is made the duty of the trustee, upon the request of the holders of one-half in amount of the bonds outstanding, either to take possession of the railroad or to institute proceedings at law or in equity upon the mortgage, or sell the property at public sale under the authority thereof.

The holders of much more than one-half of the first mortgage bonds have notified the trustee of default made in the payment of interest, and that more than four months have elapsed since such default, and have requested the trustee to proceed for the foreclosure of the mortgage. A foreclosure bill has been prepared to be filed in the circuit court of the United States against the Camden and Trenton Railway Company and the receiver and other parties interested.

Thereupon application is made to this court for leave to proceed with the foreclosure suit against the receiver.

The petition of the trust company sets forth that the administration of the receiver has been entirely satisfactory to' the bondholders, and is believed by the trust company to have been in every respect judicious and efficient, and that it does not appear to tlie trust company to be necessary to ask for any change in the possession or operation of the railroad property until after the sale thereof and the settlement of the accounts of the receiver, unless in the opinion of this court it is desirable that the court having jurisdiction to foreclose the mortgage should also appoint a receiver, in which event and upon intimation to that effect the trust company will ask the federal court to make such appointment, and will nominate Mr. Sadler such receiver.

The present prayer of the petitioner is merely that leave be granted to file the foreclosure bill and to proceed thereunder to a decree of foreclosure and sale.

Upon refiection I am satisfied that this court ought not to place any obstacle in the way of proceedings to be taken by the trust company in behalf of the bondholders in the court selected by it to establish the lien of the mortgages and enforce the same for the security and benefit of the bondholders, provided the possession of the property by the receiver appointed by this court and the administration of the property by the receiver is not interfered with until the property is sold in the foreclosure suit.

An order will, therefore, be made granting leave to the trust company to file its proposed bill for foreclosure in the United States.circuit court, and to proceed thereon against the receiver herein, as well as against the Camden and Trenton Railway Company and other proper parties to a decree of foreclosure and sale thereunder, upon terms, however, that this leave shall not extend to interfere with the present receivership or disturb the possession or control of the receiver or his management or administration of the estate of the insolvent corporation, nor shall extend to permit application to be made for the appointment of a receiver in the foreclosure suit, without the further order of this court.


author: Emery, Y. C.

text:
    Simon Ott, sole surviving executor of George E. Tewksbury, deceased, v. Charlotte Tewksbury et al.
    [Decided October 31st, 1908.]
    Testator in general terms gave half his estate to his widow for life, and at her death to his issue surviving her; and besides the general rule of construction in such a case, without more, that the personal property is to be converted and invested by the executors, and the income only paid to the life tenant, other clauses expressly authorizing the executors to sell any or all of the personal property and invest the proceeds, and to sell the real estate, and expressly directing that the management of real estate in which O. was interested with testator should continue with him., indicated that the whole estate should be converted by the executors and invested by them; they paying the income to the widow.—Held, that a contrary intention, that she should have possession of the principal, overcoming this, was not shown by the provision expressing the desire of testator that his widow should, out of his personal estate,' make such gifts to certain friends tpreferably money to two of them) as they should desire and the executors should approve.
    Heard oil bill, answers, replication and proofs.

      Mr. Alonzo Church (Munn & Church, solicitors), for the complainant.

      Mr. Alfred F. Skinner (Pitney, Ilardin & Skinner, solicitors), for the defendant Charlotte Tewksbury.

      Mr. William T. Carter, Jr., for the infant defendants.
   Emery, Y. C.

One question was reserved on the hearing of this case, which is a bill filed by an executor for the construction of a will and directions as to payment of a legacy to the tenant for life. The testator, George E. Tewksbury, a resident of this state, died possessed of considerable personal property, and also' of real estate situate mainly' out of this state. By his will, after first directing payment of his just debts and funeral expenses, he gave, devised and bequeathed to his wife, “one-half of all my estate, both real and personal, during her natural life, and at her death to my lawful issue her surviving.” One child is living, the infant defendant, of whom' the wife has been appointed guardian. • The remaining half of his estate, both real and personal, was devised and bequeathed to his lawful issue him surviving. After these two general bequests and devises by the second and third items of his will, disposing of all his estate, real and personal, after payment of debts and funeral expenses, the testator makes devises and bequests, which, being subsequent, qualify or affect the previous gifts. By the fourth item, he directs that a house and lot in New Hampshire, in which his mother was living, and which (as appears by the evidence in the cause) testator claimed to be his property, be sold and the proceeds divided, one-half to his wife, and the other half to the defendants, his sister and brother, equally. This property has been sold and the one-half of the proceeds to which the wife is thus entitled absolutely, is in the executor’s hands for payment to her, subject to his accounting and payment of this one-half should payment be made to the widow, as directed on the hearing.

The fifth clause directs that the sale and management of the real estate in which testator was jointly interested with his partner, Simon S. Ott, of Topeka, Kansas, shall be left entirely to his discretion.

The sixth and seventh clauses are as follows:

“Sixth. I desire that my wife shall out, of my personal estate make such gifts to my friends Howard W. Hayes, my long and faithful partner Simon S. Ott, my uncle Col. A. S. Johnson and his wife, L. A. Johnson, (which I suggest in their case shall be money) as they may desire and my executors may approve.
“Seventh. I authorize my executors to sell and dispose of any or all of my personal property at public or private sale at their discretion ana to invest the proceeds thereof whenever in their judgment • such course shall be necessary or advisable for the carrying out of any of the provisions of this my will. I also empower them to sell and dispose of any or all of my real estate at public or private sale at their discretion.”

Howard W. Hayes, of Newark, and Simon S. Ott, of Topeka, were appointed executors and took out letters in this state, and Mr. Hayes having since died, Mr. Ott, as surviving executor, has filed his account in the orphans court for settlement. All of the real estate lia.s not been sold, but some of it has been converted, together with the personal property, and the debts have been paid. The widow of testator, as entitled to one-half of the estate, claims payment directly to her of one-half of the principal fund ready for distribution under the second clause of the will, tendering herself ready to give security, if required under section 8 of the act concerning legacies, of May 17th, 1894 (P. L. 1894 398; Gen. Stat. 1939, 12), providing

“that whenever personal property is bequeathed to any person for life * * * the executor shall not be compelled to pay or deliver the property so bequeathed to the person having any such life interest * * * until security shall be given to the orphans court in such sum and form as in the judgment of the said court shall sufficiently secure the interest of the person or persons entitled in remainder, whenever the same shall accrue or vest in possession.’’

The question for decision is -whether one-half of the property-in the hands of the executor for distribution on the settlement of his account shall, on this claim of the widow under the general devise and bequest be paid over to her (on giving security, if required), or whether the executor must retain this one-half for investment, paying to the widow only the income. The property sought to be paid over consists of the proceeds of personal property and of real estate which have been converted, and is now held for the trusts of the will. The general rule in relation to pajmrents or delivery to the life tenant of personal property or the principal, to 'the income or use of which he is entitled for life, is the one declared by Lord Eldon in the leading case — Howe v. Earl of Dartmouth (1802), 7 Ves. 137, that where personal property is bequeathed for life, with remainders over, in general terms and not specifically, the property is to be converted and invested by the executors, and tire income only paid to the life tenant. This general rule has been approved in so many cases in this state as to have become a settled rule of construction and it must prevail unless there be in tire will an indication of contrary intention, and that the tenant for life is to enjoy the possession of the property in specie and as given specifically. Ackerman’s Administrators v. Vreeland (Green, Chancellor, 1861), 14 N. J. Eq. (1 McCart.) 23, 27, 28; Rowe’s Executors v. While (Green, Chancellor, 1863), 16 N. J. Eq. (1 C. E. Gr.) 411, 416; Howard v. Howard’s Executors (Green, Chancellor, 1864), 16 N. J. Eq. (1 C. E. Gr.) 486; Parker’s Executors v. Moore (Runyon, Chancellor, 1874), 25 N. J. Eq. (1\0 C. E. Gr.) 238, 238; Helme v. Strater (McGill, Chancellor, 1894), 152 N. J. Eq. (7 Dick.) 591, 605.

In reference to the indications of such contrary intention, it is claimed on behalf of the life tenant that the tendency of the courts, as shown by the later cases, has been to allow small indications of intention as sufficient to prevent thei application of the rule. The decision of Vice-Chancellor Wigram in Hinves v. Hinves (1844), 3 Hare 699; 611, and of Leach, M. R., in Col lins v. Collins (1833), 2 Myl. & K. 703, and in Pickering v. Pickering (Lord Collenham, 1839), 4 Myl. & C. 289, are cited as illustrations of this tendency. But in a still later case, Macdonald v. Irvine (1877), 8 Ch. Div. 101, where the general rule and the effect of these cases on its application was considered, it was concluded by the court of appeal that it was altogether a question of a fair and reasonable construction of the will, in reference to the intention of the testator that the property in question was to be enjoyed in specie, and that the general rule requiring conversion was not to be applied. And it was said by Lord-Justice Thesiger (at p. 122), that in every case where such intention was found to exist (except one which was referred to as having gone almost to the extreme length consistent with the existence of the rule at all), there were either words in their natural and literal sense importing use or enjoyment of the prop-erty in the state in which the testator left it at his death, or directions contained in the will as to the conversion, which were inconsistent with a conversion by- the court taking place upon the death of the testator. And it was further held to be the result of the cases, Lord-Justice James (at p. 124), that it was quite clear the rule in Howe v. Dartmouth, supra, must be applied, unless upon a fair construction of the will you find a sufficient indication of intention that it is not to be applied, and that the burden of establishing this was on the person asserting that the rule of the court should not be applied. This is the principle to be applied here and the test being, as I think it should be, whether the will, fairly construed, indicates such an intention that the property in question is specifically bequeathed and to be enjoyed in specie, as to make the general rule for conversion inapplicable, the question in the case is whether the sixth clause of the will, which is the only indication relied on, has this eifec-t. None of the personal property is expressly bequeathed to the life tenant by description or in specie, and it is claimed that the direction in the sixth clause that his wife shall out of his personal estate make gifts to- his two executors and two others (preferably money to these two), is a specific gift by implication, because it necessarily contemplates the possession of the personal property by the wife in order that she may make the gifts. This claim made under this clause, which applies only to personal estate, cannot reach to so much of the fund in hand as is derived from the proceeds of sale of the real estate, and, if valid at all, would seem to reach to the possession of the whole personal estate 'and not merely of the one-half, for it is not given out of the widow’s one-half, but out of the whole personal estate. The gifts also are subject to the approval of the executors, to whom in the first instance all the personal estate would ordinarily go, and who, by reason of this possession, are able to enforce the requirement of their approval. But independent of these considerations, the plain and natural construction of this whole clause, and one which is consistent with the whole will, is that the wife (who is not one of the executors) may take out of the personal estate, being the whole estate which comes to the hands of the executors, property or money as gifts to the four persons named. These gifts, which, as to character and amount are thus to be fixed by the wife at her discretion, subject only to the executors’ approval, are then to be given to her by the ex- ■ ecutors for the purpose of gifts by her to tire persons named. This construction of the clause carries the testator’s whole intention, as expressed by this clause, into effect, while leaving undisturbed the general plan of conversion of the entire estate and investment by executors, made by the other portions of the will. For it must be further observed, as bearing on the question of the testator’s intention that the property is to be enjoyed by the widow in specie, and not be converted, that we have in this will a case in which the general rule as to the testator’s intention of conversion, derived from the formal terms of the bequest itself, is fortified by other clauses indicating specially an intention that the executors shall convert all of the estate and hold the proceeds, and that pending the conversion, the tenant for life shall not enjoy the possession of the'property m specie, as it existed at testator’s death. These clauses are those which expressly authorize the sale of any or all of the personal property at public or private sale, and the investment of the proceeds to carry out the provisions of the will, the express authority to sell the real estate, and the express direction that the management of the real estate in which Mr. Ott is interested with him shall continue with Mm, thus excluding the tenant for life from any enjoyment in specie of these lands or of their proceeds of sale. These are express special indications appearing by the will that after the payment of debts and the delivery to the widow of the four gifts selected by her and approved by 'the executors, it is the testator’s intention that the whole estate, real and personal, shall be converted by the executors and invested by them for the purpose of paying the income to the wife. Confirming, as they do, the application of the general rule as to conversion, which arises from tire form of the bequest itself (a general bequest to persons taking in succession the same property), I must hold that the tenant for life is not entitled to demand of the executors the payment of the principal fund.


text:
    Mary A. Burton v. Daniel Mellis.
    [Decided January 30th, 1909.]
    1. Where the property is not divisible, dower must be assigned out of the rents.
    2. Under Gen. Stat. 1S95 p. 1215 § 1, endowing a widow for life of the full and equal third of all lands, &q., the widow, in determining her divisible portion of the rents, is not entitled to the benefit of improvements made by the alienee of the husband after his purchase.
    3. In working out the endowment of rents on the basis of value at the time of alienation without regard to subsequent improvements, the gross rentals should be ascertained, and the widow allowed one-third after proper deductions.
    4. In arriving at the divisible portion of the -widow in the rents to be paid to her in case the land is not portionable, the taxes must be deducted.
    5. In working out an endowment of rents the widow is chargeable with improvements and repairs made by the alienee which were necessary to put the premises in a tenantable condition, and the amount expended should be charged against the property as a principal fund, and the alienee given credit on his account for interest on such fund.

      Heard on bill, answer, replication and proofs.

      Messrs. Hance •& Miller, for the complainant.

      Mr. Jam.es J. Gibb, for the defendant.
   Emery, Y. C.

This is a bill filed by the widow against the alienee of the husband for the assignment of -dower and for an account. The property is a small lot in Belleville, upon which at the time of the alienation by the husband there was a small frame house, adapted only for occupation by a single family, and in a poor state of repair. The property was subject to a mortgage of $1,000, to which the wife’s dower is not subject, and the purchaser paid to the husband, who owned the title, $1,000, the wife not joining in the deed. The purchase was made with knowledge of the outstanding inchoate dower right. After the purchase, and before the death of the husband, the purchaser expended a considerable sum (said to be between $1,400 and $1,500), to put the property in a tenantable condition and to make the addition of two rooms and a chimney. Owing to the condition of the house these repairs were, for the most part, permanent improvements to the property. Before the repairs were made no rents weré received, but, as soon as the property was improved, it was rented for a gross sum of $30 per month, and has been occupied most of the time. The property not being divisible, dower cannot be assigned in the property, but must be assigned out of the rents, which is the usual course in such case. 14 Cyc. 1004. The purchaser has paid the taxes and insurance and interest on the prior mortgage, and the, questions reserved are whether in the account for the rents the widow is chargeable for these payments, and also with interest on the sum expended by the alienee for the repairs and permanent improvements to put the house in a tenantable condition.

Our statute (“Dower," Gen. Stat. 1895 § 1 p. 1275) endows the widow for the term of her natural life of “the full and equal third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the coverture,” and our courts have uniformly held that under this statute the widow is not entitled to the benefit of improvements made by the alienee after the purchase. Van Dorn v. Van Dorn (Supreme Court, 1810), 3 N. J. Law (2 Penn.) *697; 4 Am. Dec. 408; Coxe v. Higbee (Supreme Court, 1830), 11 N. J. Law (6 Halst.) 395; Barnett v. Griffith (Chancellor Runyon, 1876), 27 N. J. Eq. (12 C. E. Gr.) 201, 206; Turner v. Kuehnle (Vice-Chancellor Pitney, 1905), 70 N. J. Eq. (4 Robb.) 61, 70. This is also the general rule in the American courts in the construction of similar statutes. 14 Cyc. 1000, &c.; 2 Scrib. Dow. (2d ed.) 612, &c. In working out the endowment of the rents on the basis of value at the time of alienation, without regard to subsequent improvements, some courts adopt the method of ascertaining the value of the lands at the time of the alienation, and award the widow one-third of the legal interest on such value, while others ascertain the gross rentals and allow the widow one-third of the rents after proper deductions. 14 Cyc. 1005; 17 Cent. Dig. § 3370, &c. The latter practice has always been assumed to be'the correct basis for working out the value of the widow’s dower, both in our rules of court and by the decisions of our courts. Haulenbeck v. Cronkright (Chancellor Zabriskie, 1873), 23 N. J. Eq. (S C. E. Gr.) 407; affirmed on appeal, Cronkright v. Haulenbeck (1874), 25 N. J. Eq. (10 C. E. Gr.) 513. Chancery rule 184, adopted in 1853, directs an ascertainment of

“the clear yearly income above insurance, taxes and all repairs necessary to keep the premises in as good condition as at the time of the sale, including renewal required from ordinary wear and tear or decay.”

This is the only method of ascertaining the value of the dower as based on the rents of the property, which seems ever to have been suggested in our practice, and it should not now be questioned with the view of taking the other course of basing the dower on the interest of the value of the property. The widow’s dower, like that of any other life tenant, is, when assigned, subject to the annual taxes, and the cases cited by complainant’s counsel, relieving the widow, while occupying the homestead under the statute pending assignment of dower from paying taxes on the homestead have no application. The insurance extended only to the alienee’s interest, and not to the rents as such, and therefore cannot be allowed, as the widow derives no benefit from it. Kearney v. Kearney, 17 N. J. Eq. (2 C. E. Gr.) 59; on appeal, Ibid. 504.

The repairs and improvements being necessary to put the premises in a tenantable condition, the widow is chargeable in the account with these expenses, in the same manner as the ordinary tenant for life would be chargeable in an account with the remainderman or reversioner (or trustees representing them) for permanent improvements, and on the same basis, viz., by charging the amount expended against the property as a principal fund, and giving the alienee in his account credit for interest on this fund, as a proper expense. This follows the practice established in relation to assessments on the lands for municipal improvements, where the dowress is charged with the pa3'ment of one-third of the interest on the assessments. Jonas v. Hunt (Court of Errors and Appeals, 1885), 40 N. J. Eq. (13 Stew.) 660, 663.

A decree for account will be advised in accordance with these views.


author: Stevens, V. C.

text:
    Noah C. Rogers v. Helen Fountain Genung et al.
    [Decided November 13th, 1908.]
    A real estate agent, who had land for sale, was asked by complainant to carry specific offers to the owners who had employed him to sell it. He had no discretionary authority, and received no commission from complainant. Upon refusal of the last offer, without waiting to ascertain if complainant wished to make further offers, the agent sold the land to his own wife, who had knowledge of her husband’s relations with complainant ; she paying for it with her own money.—Held, that there was no such fiduciary relation between complainant and the agent as would make the agent’s wife a constructive trustee.

      On bill, &c.

      Mr. Alfred Mills and Mr. William H. Corbin, for the complainant.

      Mr. Chandes A. Rathbun and Mr. Richard V. Lindabury, for the defendants.
   Stevens, V. C.

This is a suit to compel the defendant Helen Genung, to convey a tract of land near Morristown to the complainant.

The facts are very simple. Noah C. Eogers, a New York lawyer, residing in Morristown, on May 14th, 1907, wrote to Mr. Genung, a real estate agent and husband of Helen Genung, as follows:

“I would be glad if sometime at your convenience you would give me a list of small places that you'have for sale, with prices, near Madison, Convent or Morristown stations, either with or without farm buildings— say within a mile or two of stations.”

To this, on May 17th, Genung responded:

"I beg to offer you below a list of a few places that may be of interest to you * * * The Conlding farm this side is on both sides of the road * * * there are 15 acres * * * offered at $8,000.”

On May 29th, Mr. Eogers replied:

“I have, your list of places. If you are not otherwise engaged I should be glad to talk with you about these places to-morrow afternoon at my house * * * I am inclined to think that the Murphy and Conkling tracts would be the most likely to be of interest and would be glad if you would ascertain the lowest prices and also how much could remain on mortgage, and at what rate of interest.”

On Thursday, May 30th, there was an interview. Mr. Eogers told Mr. Genung that he wanted to buy the Murphy and Conk-ling tracts as a plot, they being adjoining parcels. Genung advised him to offer $7,000 for the Conlding plot and $13,000 for the Murphy, telling him that offers of $6,000 and $6,500 for the Conkling tract had been refused. Eogers authorized these offers to be made. They were made and declined. Shortly after, Rogers, through Genung, took a deed for the Murphy tract at $15,000. The negotiations about and the conveyance of this latter tract have no bearing upon the matter in hand.

On Tuesday, June 4th, Genung informed Rogers that he could probably get the Conkling property for $7,000 if he would allow one of the owners, Mr. Conkling, to remain on it for his life. Rogers replied that it was more desirable to have possession and he requested Genung to find out if by paying a higher price he could get immediate possession. He authorized Genung either on the evening of that or the following day to increase the price to $7,250, to $7,500 and, if necessary, to $8,000, if Conk-ling would give up his life possession.

On Thursday, June 6th, Genung and his wife went to the Conkling house. Genung made the offer of $8,000, which was refused. Then either Mr. Genung, for his wife, or Mrs. Genung herself made an offer of $7,000, with the life right, which was accepted., Upon the acceptance, Genung filled up a blank form of agreement, which he had brought with him, and it was there executed. On the same evening Rogers called upon Genung and was told by him that he had visited the premises with his wife and that the Conkling family had decided that they wouldn’t sell except subject .to the life lease. He did not tell him that his wife had purchased. Rogers then said:

"Very likely I will take it. Anyhow, I will telephone you, but very likely I will take it, but I would very much rather give a higher price and eliminate the life lease * * * I will let you know to-morrow whether I will take it with the life lease or not. I will communicate with you from New York.”

Next morning Genung sent his attorney to the Conklings to have them acknowledge the agreement, so that it might be recorded and immediately after its acknowledgment, sent to Mr. Rogers at his New York office a registered letter in which he said:

“As your client seems to have hesitated with this life right in view and as the other party who started the negotiations for the place, as X told you some days ago, was willing to buy the property with this life right, I have closed a contract with the other party.”

In an interview had that same evening with Bogers, Genung, on being pressed, admitted that the “other party” was his wife and that she had bought it as a speculation. The reason for this sudden purchase would seem to have been that Genung had, from what Bogers had either said or refused to sajr, begun strongly to suspect that he was really buying the property for Mr. Jenkins, who, or whose wife and nephew had been purchasing large tracts of land in the surrounding neighborhood.

On this state of fact the court is asked to declare that Mrs. Genung is constructively a trustee for Mr. Bogers and bound to convey to him on payment of the price.

The evidence is uncontradicte'd that it was the money of Mrs. Genung and not of Mr. Genung that went into this purchase. As it is conceded that Mrs. Genung was informed by her husband of all the steps taken in the Bogers negotiations, it is argued that Mrs. Genung occupies no higher ground than Mr. Genung, and that the case must be dealt with just as if he had acquired the title. Without expressing any opinion on this proposition, I will, for present purposes, assume that it is sound.

It is an undisputed fact that Bogers was not to pay a commission to Genung; that Genung’s compensation was to come wholly from the vendors. Notwithstanding this, it is contended that Genung was Bogers’ agent and that as such he was incapacitated from acquiring any advantage for himself or his wife.

While counsel do not agree whether Genung was Bogers’ agent they cannot disagree about what Genung was employed or requested to do. He was to carry specific offers from Bogers to the vendors. This was all he was to do. He had no discretionary authority. This being so, I am at a loss to perceive how Genung’s position was at all different from that of any other real estate agent, who, trying to sell a property that has been placed in his hands by its owner, receives offers for it which he communicates to that owner. Bogers does, indeed, say that in the course of the negotiation Genung asked him if he thought he had the right to represent anybody else, and that he replied: “Decidedly, no; while you are representing me confidentially and submitting my offers, I don’t consider you have a right to represent anybody else or to go into it with anybody else.” To this Genung made no response. “He said nothing more, but dropped the subject.” But it seems to me that Mr. Eogers must have said this without due consideration. Genung’s first duty was toward his employers—the vendors, who had put the property into his hands for sale; the vendors to whom he was bound to submit offers; not from one person only, but from all from whom he could obtain offers. On Eogers’ own testimony there was, as the result of the inquiry, no promise on Genung’s part to do what would have been contrary to his duty.

Genung was, indeed, in conversation on the evening of the day on -which his wife agreed to purchase, guilty of a concealment that might perhaps, from an ethical standpoint, be open to criticism; but if he failed in any duty imposed by law, it ■was in one that he owed the vendors, who are not here complaining. He did not give them the information about Mr. Jenkins that, as it appears to have influenced him, might also have influenced them, and he did not, as he ought to have done, tell them that Eogers had made no final offer; that he was evidently anxious to purchase—so anxious that he might be induced to pay more than his wife and concede the life right beside.

As far as Eogers is concerned, the ease stands merely thus: Eogers said to Genung, make certain specified offers for me. This Genung did. He failed, however, to wait and see whether the last—the $8,000 one—being refused, Eogers would malee another. Eogers had not said that he would or that he would not, but Genung might very reasonably have concluded that he would; especially if he thought that the Jenkins family were the real purchasers.

Now, t as Eogers’ money did not go into the purchase, there was, of course, no resulting trust, in the ordinary sense of the term. But it is said that a trust resulted from the transaction, if it did not from the agreement.

This distinction, as applied to the facts of the case, is unintelligible to me. In what did the “transaction,” as distinct from the “agreement,” consist? It consisted in Genung’s submitting to the vendors three or four offers—all declined. If beyond and in addition to the “transaction” there wag anything else, it was at best, nothing more than an implied undertaking on Genung’s part that he would continue to submit Rogers* offers as long as Rogers continued to make them. Now, how did this “transaction** make Rogers a cestui que trust of the property and Genung a constructive trustee, when neither of them had, at any time during its continuance, any interest, either legal or equitable, in the property ? And how could the implied undertaking, if there was any, have had any such effect? Could an undertaking to submit offers, based on no consideration moving from Rogers to Genung, be deemed in equity the equivalent of an undertaking on the part of a paid agent to obtain and convey property? In 1 Perry Trusts § 135, it is said:

“Parol proof cannot be received to establish a resulting trust in lands purchased by an agent and paid for by his own funds, no money of the principal being used for the payment, for the relation of principal and agent depends upon the agreement existing between them and the trust in such a case must arise from the agreement and not from the transaction, and where a trust arises from an agreement it is within the statute of frauds and must be in writing.”

In Wallace v. Brown, 10 N. J. Eq. (2 Stock.) 308, Chancellor Williamson took the same view. He says “A employs B as his agent ,to purchase a house for him. B makes the purchase, takes a deed in his own name and pays his money for it. A cannot compel B to convey." To much the same effect are Nestal v. Schmid, 29 N. J. Eq. (2 Stew.) 458, and Thalman v. Canon, 24 N. J. Eq. (9 C. E. Gr.) 127. Bartlett v. Pickersgill, 4 East Rep. 577, is the authority upon which this view of the law rests. There, defendant bought an estate for plaintiff, but there was no written agreement between them, nor was any part of the purchase-money paid by plaintiff. Defendant articled for the estate in his own name and refused to convey to the plaintiff. There being no written evidence that the estate was purchased for the plaintiff, Lord-Keeper Henley held that the statute of frauds applied. This case was doubted by the lord-justices, in Heard v. Pilley, L. R. 4 Ch. 548, but followed by Justice Kekewich in the later case of James v. Smith (1890), 1 Ch. Div. 384 In the still later case of Rochefoucauld v. Boustead (1897), 1 Ch. Div. 196, Lord-Justice Lindley said that Bartlett v. Pickersgill, supra, could not be regarded as law at the present day; that Justice Kekewich had overlooked the later eases, and that “it seemed to be inconsistent with all the authorities of this court, which proceed on the footing that it will not allow .the statute of frauds to be made an instrument of fraud.” The American cases are equally conflicting. They will be found collected in a note appended to the case of Johnson v. Hayward, 5 L. R. A. (N. S.) 112. In view of the utterances of this court, in the cases above referred to-, it may be doubted whether I would be justified in following the more recent English rule, even if it were considered to be the better. But I do not have to pass upon the question, for all the cases require proof, at least, of a special trust and confidence and such proof is altogether lacking in the case at bar. Genung was not employed to purchase the property for Rogers. He was only employed or, to speak more accurately, requested to transmit certain specified offers to Genung’s principal. To assert that a request of this character is equivalent to an employment to purchase is a mere perversion of language.

It is further argued that if the case is not one of constructive trust, based upon special confidence reposed and violated, the deceit perpetrated by Genung takes the case out of the statute. As I have already said, Genung’s conduct, as far as it was questionable, if it injured anyone, injured the vendors, and they do not complain. Up to the time that his wife purchased he had made no misrepresentation to Rogers and had concealed nothing from him. He did, for twenty-four hours after the purchase, conceal it from Rogers, but this concealment did not induce Rogers to change his position, and it did not, in anywise, injure him. If Genung had told him on the evening of the day on which the agreement was signed that it had been signed by his wife, he would have stood in precisely the same position that he does now. It is, therefore,-unnecessary to consider the question mooted in the case of Starrett v. Boynton (Court of Errors and Appeals), 73 N. J. Eq. (3 Buch.) 669, whether fraud will, under some circumstances, supply the place of a writing.

I think the bill should be dismissed.