text:
    William Stieglitz, petitioner-appellant, v. Elizabeth Stieglitz, defendant-respondent.
    [Submitted June term, 1920.
    Decided November 15th, 1920.]
    On appeal from an order of the court of chancery.

      Mr. Benjamin Weinberg, for the appellant.
    No appearance for the respondent.
   Per Curiam.

This is an appeal from a decree dismissing a petition for divorce, filed by the husband, in the court below, charging his -wife with having willfully, continually and obstinately deserted him for more than two years. The petition charges the desertion to have taken place in the month of March, 1915. The petition was filed on April 26th, 1919. The wife filed no answer, nor did she contest her husband’s application, for the divorce.

The testimony taken before the special master disclosed that the husband and wife remained under the same roof and slept in the same bed together until the 6th day of April, 1919, when she left him and went to her mother’s home to live. Thus, it appears that within twenty days after the wife actually left her husband he filed his petition for divorce.

The theory _upon which the case was tried and presented, as developed by the testimony taken before the special master, and now urged in the appellant’s brief here, is, that though it appears that the conjugal pair lived under the same roof and slept in the same bed together, nevertheless, as both had testified, the wife being an unwilling witness, that she, the wife, had persistently refused the husband to have sexual intercourse with her, that such conduct on her part was a constructive desertion.

The rule is firmly established in this state that a, divorce will not be granted upon the uncorroborated admissions or testimony of a party to the suit. Hague v. Hague, 85 N. J. Eq. 537. And this applied to every element in the proofs necessary to sustain the decree. Ibid. 541.

The proof relied on by appellant as corroborative of the nonexistence of sexual intercourse between him and his wife consists of his statement and her admissions to that effect and the circumstance that there was some testimony from an independent source, tending to show that the wife had an infatuation for Dr. Kupperman, and that she had repeatedly declared that she did not love her husband and that she actually left him1 and went to live with her mother, declaring that she would never live with him again.

We do not think that the testimony and circumstances relied on by appellant were convincingly corroborative of the non-existence of sexual intercourse between husband and wife.

From the conceded facts that the husband was in good health and twenty-five years of age and his wife several years his junior, and likewise in good health, slept in the same bed together for nearly a period of four years, both being competent and having the opportunity of having sexual intercourse with each other, an almost indisputable presumption arises that sexual intercourse did take place. In order to overcome such a, strong presumption the proof of non-existence of sexual intercourse must be clear and convincing.

It may be said that in the absence of some physical sign indicating that there was no sexual intercourse, it is a task requiring the accomplishment of something impossible to attain to require the production of corroborative proof of the non-existence of sexual intercourse between husband and wife, both being presumably competent thereto and occupying tlie same bed together. This may be conceded. But it is a salutary rule, in effect. The design is to preserve the marriage relation and to protect it from being severed by consent of husband and wife— that is, by methods which are so, easily open to collusion. The rule requiring corroborative evidence in such cases is not a harsh one. For the husband, in, the present case, was at liberty to abandon his wife after Iona fide and repeated trials to have sexual intercourse with her and her refusal to permit him.

The decree will be affirmed, with costs.

For affirmance—The Chief-Justice, Swayze, Trenohard, Bergen, Minturn, Kalisch, Black, Katzenbaci-i, White, Williams, Taylor, Gardner, Ackerson—13.

For reversal—None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Julia Ann Vass, respondent, v. Frank M. Warner et al., appellants.
    [Decided October 21st, 1920.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, who hied the following opinion:

      “The question here is one of the validity of this alleged gift by Mrs. Vass to Frank M. Warner and his wife. The doubt as to the validity arises from the situation existing between the parties at the time the alleged gift was made. The allegation of the bill is, that by reason of the relationship which had existed between the complainant in this case and the defendants—■ and by that I do not mean merely the blood relationship', but the actual physical relationship1 and the situation in which she stood toward them—whether by reason of those circumstances the gift is one which can be upheld or whether it must be set aside as one made through fraud or a lack of understanding on the part of the complainant as to what she was doing at the time.
    “The rule is well settled in this state. The doctrine is laid down in such cases as Slack v. Bees and Bensel v. Anáerson and Post v. Hagan. And there have been some recent pronouncements. There was one within the last year or two—the Clark Case—in which, 1 think, Vice-Chancellor Backes wrote the opinion. The rule is, that where a relationship of confidence exists the burden of proof is cast upon the donee to show not only that there was no fraud exercised by him, but that the donor understood clearly what she was doing. It is practically the same thing as the doctrine of independent advice mentioned in the Slaclc-B&es Case;' the result amounts to the same thing.
    “Now, in this case, you have, in the first place, the complainant, a very aged woman eighty-three years old; and there is no question, in my mind, from the observation I made of her as she testified in court, and as she acted in court, that her mental condition is weak. She is not in full possession of her faculties. The testimony of Dr. Carhart, who is entirely disinterested and a competent physician, is that that weakness has continued from and since the illness she had in May of last year; and that that illness consisted of septicemia, which would cause a dulling of the mental faculties; that she was worse at that time than she is to-day. The fact that she denies these signatures to these checks does not by any means indicate, as defendants’ counsel argues, a contradiction of what she said to her counsel, leading to the drafting of the bill of complaint, because it appears in the testimony that the first investigation made was made by some of her friends. She did not believe, she said, at that time that the Warners had taken away her money, or money from the bank account. And an investigation was made, and evidently it was found out after the bill had been filed that these checks had been put through. She further denied on the stand that she ever had any intention of making any gifts inter vivos to either of the defendants.
    “The question is whether the burden of proof -has been met by the evidence submitted by the defendants. Outside of the defendants themselves, who are, of course, interested witnesses, there was the evidence of Mrs. Conkling, who testified as to the mental condition of the complainant. Mrs. Conkling I took to be a disinterested witness, but her testimony as to that relates to the 2d or 3d or 2d and 3d of May, 1919. The testimony of Dr. Carhart, at the time he was in attendance upon the defendant, and at the time she had this fever, which, he says, ran from one hundred and one to one hundred and four, was from the 10th or 12th to around the 16th; so, that the testimony of Mrs. Conldtog by no means contradicts the testimony of Dr. Carhart. Mr. Bullís also testified as to a conversation he had with the complainant which might seem to indicate a comprehension on her part as to what she wanted to do> with certain of her property, but that conversation, obviously, also antedated the time of this illness and the gift, because she spoke to him about her desire to have the Hills, or her brother and sister, get the Blairstown house.
    “There is, therefore, nothing whatever to show the condition of this woman’s mind at the time of the occurrence or to show what she had in mind, or that she did fully understand and clearly comprehend what she was doing, except the testimony of Frank Warner himself. On the other hand, there are several circumstances, several bits of testimony, which do not harmonize with an idea that the defendants have been entirely frank in their testimony. It-is to be expected, I presume, that the interest which they have in the suit should result in something of that kind.

      “The cashier of one of the banks testified that when Mr. Warner came first him in regard to the transfer of the money —the $1,000—he said to him that Mrs. Vass had told him, Mr. Warner, that she 'wanted to get her money, and that was the reason he wanted to have this check made; and when Warner returned after the check had been signed, he then told him (the cashier) that Mrs. Vass wanted Mr. Warner or Mrs. Warner to have the money. Mrs. Warner testified that the instrument which was signed by herself as a witness' and by Mrs. Vass, having to do with the burial, wras drawn up> by Mr. Bullis at Mr. Warner’s request, he having been told to make that request by instigation of Mrs. Vass. Mr. Bullis said that Mr. Warner didn’t ask him to draw that up', or any paper; that he drew it up of his own volition; that Mr. Warner came and said she wanted to have a burial like that of her daughter, and it was Bullis’ idea to draw this paper up as it was. Mr. Warner testified that Mrs. Vass had applied to him about two' months prior to the date of the alleged gift for him to transfer her moneys from the Blairstown bank to the Newton bank. He said he refused at that time because he was afraid. He was not frank in, stating why he was afraid, but it finally developed, .as nearly as I could understand from what he said, that he was afraid to mix up in her financial affairs; that some criticism might come afterwards, or the fear he had that she might change her mind. If he had that fear, I cannot understand why he should not have had greater fear of criticism of his transfer at her request of the-funds out of her own name to his name or the name of his wife. It does appear that he did exercise speed in the consummation of this thing. He made two trips to Blairstown and two to Newton after the noon hour of that day. He said he did that because Mrs. Vass asked him to do so, because she wanted to get the matter concluded before her brother returned'—-that she was fearful of a fuss. It seems to me that that very thing ought to have put him on his guard—ought to have warned him that whatever Mrs. Vass wanted to do he could not afford to have himself put in the situation of being a party to a secret transfer of funds in those circumstances, especially to himself and his wife, or either, and that if she had wanted to do it it would have been his duty to have established that fact by calling an outside, disinterested witness who could testify that she, at the time sire made this request of him, did understand, clearly what it was that she was doing. He did not do^ that. He testified that the only reply he made, and the only thing he said to her when she said she wanted to have a check made to him for $1,-000 on the one account and for $3,000 on the other account, was' that he didn’t have any cheeks, and that she then told him to go to the bank and get the checks. I asked him whether he had made no1 other objection to it, and upon that reminder 'he did say then that he had said this to her, ‘Well, if that is what you want to do, all right,’ or something to that effect. Upon his own testimony he made no effort whatever to find out whether she comprehended she was making a gift to him or his wife, or both of them, which was to- be irrevocable or whether it would enure to their benefit only after her death, and that she would not be putting her money out of her own possession and control before her death.
    “It does appear from several portions of the testimony that she had had in mind making disposition of certain parts of her property to different persons on her death, but there is nothing whatever, in any of the testimony which has been adduced as to her conversations of what she was going toi do with her property, which is inconsistent with the idea that she meant to make that disposition at the time of her death. Her statement that she intended to pay the Warners will by no means show an intention to deprive herself of fifty per cent, of her 'lifetime accumulations.
    “Another thing which has considerable weight, in my mind, is the fact that, notwithstanding that this gift was a surprise— if their testimony were true—it must have been a grateful surprise to the Warners, and one of the first things they would have done would have been to show some gratitude and appreciation, but there is not one word of testimony that either one of them ever thanked her for it. And Mrs. Warner never took the trouble to go one-half mile to see her after receiving $4,000 from her and tell her that she appreciated the gift. She said she didn’t go there ton that day or the next day, and not until the second day after, and even, then she doesn’t say she made any mention to Mrs. Yass of it.
    “Upon the authority of the cases, therefore, I am bound to adjudge that the burden of proof has not been sustained by the defendants, and there must be a 'decree for the return of the money and the bank books and other papers. The decree, of course, will restrain any disposition of these funds by the defendants other than by return to the complainant.
    “Mr. Shipman—Will the bill be dismissed against the man? The money stands in the wife’s name.
    “The Court—No, the bill will not be dismissed against him.”

      Mr. Egbert Bosecrans, for the respondent.

      Mr. George M. Shipman, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Yice-Chancellox Buchanan.

For affirmance—The Chief-Justice, Swayzis, Tkenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppbnhbimer, Williams, Taylor—13.

For reversal—None.


author: Walker, Chancellor.

text:
    Emmanuel Fodor, petitioner, v. Julia Kunie, defendant.
    [Decided December 9th, 1920.]
    1. A decree of nullity of marriage may be rendered in a ease at the suit of the wife only, when she was under the age of sixteen years at the time of. the marriage, unless such marriage be confirmed by her after arriving at such age.

      2. Amendments must be germane, that is akin or closely allied to the pleading amended; and while they are allowed in equity with great liberality, the doctrine has not been extended so far as to permit the substitution of an entirely different case from that made in the original bill or petition.
    3. At common law a girl is capable of consenting to marriage if she be twelve years old, and suit will not lie under the general equity jurisdiction of this court to annul the marriage of a girl over twelve, even if she fraudulently represented her age to be eighteen when it was thirteen.
    4. A suit for nullity of marriage under the general jurisdiction of equity must now be brought by petition in conformity with the provisions of P. L. 1916 p. 109.

      5. A statute providing that a marriage may be declared void where the female is under a certain age leaves the common law rule otherwise unaltered.
    6. The consent of parent or guardian is not necessary to the validity of a minor’s marriage unless a statute expressly declares that a marriage contracted without it shall be void; and there is no such statute in this state.
    7. Where a statutory remedy is given in chancery the pleading which initiates it, whether bill or petition, cannot be amended so as to make an entirely different case under the general equity jurisdiction of the court, where such statute is not declaratory of the existing power of the court, but creates a new and theretofore unafforded cause of action.
    8. Only an infant defendant in a divorce suit who is upwards of sixteen years of age can defend in person (P. L. 1915 p. 589) ; under that age the defendant must be represented by guardian ad liiem.

    On application to amend petition for nullity of marriage.

      Mr. George Kemeny, for the petitioner.
   Walker, Chancellor.

The petition in this cause alleges' that on January 24th, 1920, a form or ceremony of marriage took place between the petitioner and the defendant at Perth Ambo}r, at which time the defendant was incapable of consenting thereto, being then an infant under the age of sixteen years, and under the statute incapable of giving her consent to the marriage; that petitioner was ignorant of the defendant’s incapacity at the time of the marriage, and was not made cognizant thereof until afterwards, namely, on February 18th, 1920; that the defendant was never capable of ratifying the marriage by reason of her being under the age of sixteen, and that the incapacity continued and the marriage had not been in anywise ratified by the defendant. Petitioner prayed that the marriage be declared by decree of this court to be null and void for the cause mentioned, pursuant to the statute. The defendant was served with process of citation and a copy of the petition, but did not answer. Subsequently, an order of reference to a special master was made in due form. Testimony was taken before the master, who reported that the defendant was capable of consenting to the marriage, being of the age of fourteen years, and the suit not being brought by her, but by the husband, the petition could not be sustained; that the petitioner is not entitled to the relief prayed, and he recommended that the petition be dismissed.

Motion is now made for an order that the petitioner have leave to amend the petition as he may be advised, with provision for service of a copy of the amended petition, including twenty days’ time limited for the filing of an answer thereto, after service. The character of the amended petition intended to be filed is indicated by a draft thereof submitted with the motion. It avers the performance of the ceremony of marriage, and then alleges that at the time of the marriage the defendant fraudulently represented herself to be eighteen years of age, when in fact she was thirteen; that petitioner was ignorant of the defendant’s true age at the time of the marriage, and was not cognizant thereof until February 18th, 1920; that the alleged pretended marriage had never been consummated. The prayer is that the marriage may be decreed to be null and void for the cause mentioned, “pursuant to the statute in such case made and provided.” This last is evidently a mistake, because the statute gives no power to the court to annul a marriage for fraud inducing the contract. The case set up in the draft of proposed amended petition is an appeal to the general jurisdiction of equity dissociated from any statutory power. And, plainly, the pending motion is intended as an application to the court to change the case from the statutory one to one under the jurisdiction exemplified in the late cases of Davis v. Davis, 90 N. J. Eq. 158; Bolmer v. Edsall, 90 N. J. Eq. 299; Ysern v. Horter, 91 N. J. Eq. 189.

Amendment in practice is the correction, by allowance of the court, of an error committed in the progress of a cause. 1 Bouv. Law Dict. (Rawle's rev.) 138. Amendments are allowed in equity with great liberality. Codington v. Mott, 14 N. J. Eq. 430; Seymour v. Long Dock Co., 17 N. J. Eq. 169. But the doctrine has not been extended SO' far as to permit the substitution of an entirely different case from that made by the original bill. In Codington v. Mott, supra (at p. 434), Chancellor Green observed that Lord Redesdale, in Deniston v. Little, 2 Sch. & Lef. 11, note, said that he knew of no case which allows an amendment in order to enable the party to make a new case, and concludes by saying that the proper practice, where the complainant has mistaken his case, is to dismiss the bill without prejudice to a new one. In Berla v. Strauss, 74 N. J. Eq. 678, Vice-Chancellor Howell held that a bill by a surviving partner in his own name to declare and enforce a resulting trust could not be changed by amendment to a bill for accounting exclusive of the theory of such trust; that that would require fundamental changes which should be asserted only by a new and original bill. This case was affirmed (76 Ibid. 275) on other ground, but without criticism of this one. It may not be out of place to observe that amendments in chancery differ from those at law, for, under the Practice act, a court of law may, by amendment, upon terms, permit the statement of a new or different cause of action in a complaint or counter-claim (Thompson v. Peppler, 91 N. J. Law 160, 161), while tire power of amendment in chancery has been evolved as a matter of practice, and is not regulated by statute, except to provide that amendments in that court may be made on terms. (Comp. Stat. p. 438 § 77) which, by the way, is an inherent power and the statutory provision is merely declaratory.

Amendments must be germane—that is, akin or closely allied to the pleading amended. Now, this .suit was evidently brought under the Divorce act. P. L. 1907 § 1 subdiv. 5. It could have been brought under none other, because neither at common law nor by statute, except the statute mentioned, could a suit have been instituted to annul this marriage because the girl was under sixteen, and that suit could be brought only by the wife, not by the husband. Clearly, the case proposed to be made by the amendment, namely,, an allegation that the girl fraudulently concealed from the petitioner the fact that she was only thirteen years of age at the time of the marriage, is in no way related to the statutory proceeding unwarrantably instituted by the petitioner. This is not all: As at common law a girl is.capable of consenting to marriage if of the age of twelve years (1 Bl. Com. 436) no suit will lie under the general jurisdiction of the court to annul the marriage of a girl over twelve, even if she fraudulently concealed or misrepresented her exact age. In other words, as neither the common law nor the statute gives this petitioner any remedy to annul this marriage, it would be of no avail to him either to amend his present petition or- dismiss it and commence a new suit under the general jurisdiction, which, under P. L. 1916 p. 109, would have to 'be instituted by petition.

A statute providing that a marriage may be declared void j where the female is under a certain age has been held to leave/ the common law rule otherwise unaltered. Bennett v. Smith, 21 Barb. (N. Y.) 439. Now, our statute (P. L. 1907 § 1 subdiv. 5, supra) provides that a marriage may be annulled at the suit of the wife, when she was under the age of sixteen at the time, unless such marriage be confirmed by her after arriving at that age. In this state, therefore, the marriage of a girl over twelvef but under sixteen years of age, may be confirmed by her on art-riving a.t sixteen, and, it so, it becomes indissoluble-—unless foil some other valid reason. Nor is the consent of a parent or guardian necessary to the validity of a minor's marriage, unless al statute expressly declares that a marriage contracted without it V shall be a nullity. 26 Cyc. 834 And we have no such statutory provision. Formerly, the person authorized to solemnize marriage, who married a. minor without -the requisite- consent of parents or guardian, was liable to a penalty under the statute. Craft v. Jachetti, 47 N. J. Law 205. But now persons cannot be married in this state without a license first had and obtained. P. L. 1912 p. 307 § 3; Comp. Stat. first supp. p. 924. § 7. And a penalty is visited upon any person authorized to solemnize marriages who shall perform any marriage ceremony without the .presentation of a license therefor. P. L. 1912 p. 311 § 10; Comp. Stat. first supp. p. 926 § 14. Except in certain cases of persons in the armed military or naval service of the United States. P. L. 1918 p. 519. And no such license shall be issued without the consent of parents or guardian io the marriage of a male under twenti'-one or a female under eighteen, save in the instances excepted in the statute. P. L. 1912 p. 310 § 8; Comp. Stat. first supp. p. 925 § 12.

I have no hesitation in pronouncing that where a statutory remedy is given in chancery, the pleading which initiates it, whether bill or petition, cannot be amended so as. to make an entirely different case under the general equity jurisdiction of the court, where, as in this case, the statute’is not declaratory of the existing power of the court, as In re Ungaro, 88 N. J. Eq. 25, but creates a new and theretofore unafforded cause of action.

Resides the reason given by the master there is. another one appearing in the record why the petition should be dismissed. It is that the defendant, being an infant under sixteen years of age, should have had a guai'dian ad litem appointed for her by whom she might appear and answer and defend the suit. Lang v. Belloff, 53 N. J. Eq. 298; Bunting v. Bunting, 87 N. J. Eq. 20; Bid. N. J. Div. Pr. (2d ed.) 38. The reason I say that, being an infant under sixteen, a guai'dian should have been appointed for her is because the legislature has passed an act permitting a woman who has attained that age to appear and prosecute or defend a suit for divorce or nullity of marriage. P. L. 1915 p. 539. Before the passage of that act an infant petitioner under twenty-one }’eara of age was obliged to sue by next friend, and no decree could be made against an infant under that age unless s-uch defendant was represented by a guardian ad litem. The defendant before me is now only in. her fifteenth year, and not being represented before the court by guardian, the petitioner is not entitled to proceed with his case. In these circumstances the order of reference was inadvertently made. The mere fact that the defendant is not represented by guardian ad litem does not in and of itself require the dismissal of the petition. That difficulty could lie overcome by the appointment of a guardian, probably even after testimony taken, as in the case before me, and the cause could be proceeded with de novo. Certainty, no decree could be pronounced against her in the absence of a guardian, and if one were it would be a nullity. As amendments are allowed in the discretion of the court, doubtless, in the present posture of this case, the court instead of vacating the order of reference and setting aside the master’s report and appointing a guardian and permitting the cause to proceed de novo, can with equal propriety dismiss the petition for this defect."

For the foregoing reasons the amendment applied for must he denied and the petition will he dismissed.


text:
    William E. Wood v. John J. Cox et al.
    [Decided March 16th, 1921.]
    1. M. entered into a written contract with W.-C. under which M. delivered, and in form leased, to W.-C. a soda machine for a period of six months at an expressed rental of $S50. of which $200 was to be, and was, paid upon the execution of the agreement, the balance to be paid in sums of $100 per month, with further provision that if W.-C. should desire to purchase the leased property. M. agreed that upon payment by W.-C. of such sum as would, with previous rent, amount to the said sum of $850, M. would execute and deliver to W.-C. a bill of sale for the leased property, it being agreed that no title to the property should vest in W.-C. as lessee under the agreement.- —Held, not a lease but a conditional bill of sale.
    2. A court of equity penetrates all disguises of form. and. disregarding the shadow, grasps the substance.
    3. Under 1 Qm. Si'at. p. 891 (see also Addenckim to 2 Gonvp. Sta,t. p. 1561), an unrecorded bill of sale, while good as against a receiver where there are no judgment creditors, is. nevertheless, void as against such officer where there are judgment creditors represented by him. The Conditional Sales act (P. L. 1919 p. 461). while approved before, did not go into effect until after the making of the contract in suit and therefore did not operate upon it.

      4. There can be no relici on facts neither pleaded, proved nor admitted ; and, if pleaded, they would have to be either proved or admitted.
    On bill, &c. On petition for return of a chattel in the possession of the receiver of an insolvent firm.

      Mr. Charles A. Gogan and Mr. Francis J. Smith, for the petitioner. '

      Mr. Jonathan II. Kelsey, for the receiver.
   Walker, Chancellor.

On June 14-th, 1919, Gottlieb E. Mink, trading as the G. E. Mink Company, entered into a written contract with William E. Wood and John J. Cox, partners, trading as Woocl-Cox, under which Mink delivered, and in form leased, to Wood-Cox a soda machine for a period of six months, at an expressed rental of $850, of which $.200 was to be paid, and was paid, upon the execution of the agreement, and the balance in sums of $100 per month, with six per cent, interest; with further provision that if Wood-Cox should desire to purchase the leased property Mink agreed that upon, payment by Wood-Cox of such sums as would, with previous rent, amount to the sum of $850, which, it will be seen, is the total amount of rent, Mink would execute and deliver to Wood-Cox a hill of sale for the leased property, it being agreed that no title to the property should vest in Wood-Cox as lessee under the agreement, and that if default be made by them in keeping any of the expressed covenants in the contract to be performed by them, then the lease should forthwith cease and determine, and Mink should be entitled to repossess his chattel. This was no lease in law, but a conditional bill of sale.

Singer Manufacturing Co. v. Wolff Co., 70 N. J. Law 127, is cited on behalf of Mink as authority, to the effect that the contract here in question is a lease and not a. conditional bill of sale. It does not support the petitioner’s claim. The contract before me is like that in Rapoport v. Rapoport Express Co., 90 N. J. Eq. 519, in which the Wolff Case was noticed and distin guishecl by Vice-Chancellor Lane (at p. 521). The instrument relied upon in this case as a lease is as much a conditional bill of sale as was that which was before Vice-Chancellor Lane in the Rapoport Case.

Now, Mink agreed to sell this machine to Wood-Cox for $850, and in the same instrument stipulated that the same sum should be paid as rent, and upon full payment^ if Wood-Cox so desired, Mink would execute and deliver to them a bill of sale for the machine. The terminology in the paper before me describing the document as a lease is a mere subterfuge and a palpable attempt to evade the law, as was the situation in the Rapoport Case. A court of equity penetrates all disguises of form, and, disregarding the shadow, grasps the substance. Earle v. American Sugar Refining Co., 74 N. J. Eq. 751, 761. I hold that the instrument sub juchce is a conditional bill of sale and not a lease.

This being so, it, is requirable that the conditional bill of sale should be recorded to be good against the judgment creditors of the vendee. 1 Gen. Stat. p. 891 § 191. See Addendum to 2 Comp. Stat. p. 1561. This act was in force at the time this contract of sale was made; the Conditional Sales act (P. L. 1919 p. 461), while approved April 15th, 1919, which was some two months before the making of the contract in suit, did not go into effect until Juty 4th, 1919, which was after it was made, and therefore did not operate upon it.

This contract, however, would be good against the receiver of Wood-Cox were it not for the presence of judgment creditors. See the Rapoport Case (at p. 522) and cases cited. But there are judgment creditors before this court in this case. The bill for receiver in insolvency alleges that judgments had been recovered against Wood-Cox, and the decree pro confesso established the fact against the partners. It would not establish the fact as against Mink if he chose to deny it, but he has not done so.

There is no averment in tire petition that the contract is recorded, or that there are no judgment creditors, or that Wood-Cox have made default in any of the covenants in the contract by them to be performed; nor are any of these facts proved by petitioner. But in an affidavit annexed to the petition it is stated that only $300 had been paid on account, and that $550 remained due. Recovery of the machine is sought upon the theory that title resides in the vendor; that rent is in default, and that the receiver has advertised the chattel for sale.

Mink rested his case on the petition and affidavit. The receiver filed no answer and submitted no proof;, nor was he required to do so in answering an order to show cause. lie chose to submit the matter on the petitioner’s showing, and to make the strength of the defence the weakness of the petitioner’s case. There can be no relief on facts not proved to exist and which are not admitted. Black v. Kelley, 23 N. J. Eq. 358. So, as the case stands, it must be presumed that the contract, called in the petition a lease, but which in law is a conditional bill of sale, was not recorded, and, there being judgment creditors before the court whom the receiver represents, the prayer of the petitioner for return of the chattel must be denied, and the petition will be dismissed.

The balance due the petitioner having been proved before me on this application, the receiver will be directed to pay him a dividend thereon when distribution shall be ordered to be made to other creditors.


author: Leaming, V. C.

text:
    Martin Bergen Stone v. Harry C. Stanley et al.
    [Submitted November 22d, 1920.
    Determined November 23d, 1920]
    1. It has long been recognized that a court of equity will enforce specific performance of a contract to sell land, and may in its decree require the purchase-money to be applied to pay outstanding liens, or require indemnity from the vendor, neither indemnity nor abatement should be decreed on account of an outstanding inchoate right of dower of the wife of the vendor, who has not joined in the contract to sell, unless it should be shown that the vendor induced his wife to refuse to release her dower.

      2. Where the vendor’s wife, who was present when the contract of sale was signed, had already told the vendee and her husband that she would not sign the deed, but would sign if her husband would purchase another home for her before they went away for the summer, and the husband failed to make such purchase, the vendee cannot obtain specific performance with abatement or indemnity, the condition named by the wife not having been performed, but the purchaser must seek relief by way of damages at law.
    On final hearing on. bill for specific performance.

      Mr. Harry G. Kramer, for the complainant.

      Mr. Albert 8. Woodruff, for the defendants.
   Leaming, V. C.

In this suit complainant, as vendee, seeks a. decree for specific performance by his vendor of a written contract for the sale of land. The contract was not signed by vendor’s wife and the latter now refuses to join her husband in a conveyance. Complainant accordingly seeks a decree with either indemnity against the dower or abatement from tire purchase price. The wife’s refusal to join in a conveyance is in no way due to connivance of the vendor.

The rule has long been recognized in this state that while this court may enforce specific performance of contracts to sell land and may in its decree require that the purchase-money be applied to pay outstanding liens which are by the contract to be satisfied to clear the title, or, if necessary, require compensation to be made for any part of the land to which the vendor may be unable to make title, 'or to require indemnity from the vendor against outstanding liens or rights which cannot be satisfied, neither indemnity nor abatement from the purchase price should be decreed on account of an outstanding inchoate right of dower of the wife of the vendor who has not joined in the contract to sell and who refuses to join vendor in the conveyance, unless it should be shown that the vendor has induced his wife to refuse to release her dower right. The possibility that a decree against the husband for abatement or indemnity might occasion such a coercive influence on the wife as to induce her to release her dower against her will has been thought a sufficient reason for denying relief of that nature, unless-her refusal to release has been the result of her husband’s procurement.

In Stein v. Francis (New Jersey Chancery), 109 Atl. Rep. 737, the decree ordered indemnity by the vendor and directed tliat upon his failure to indemnify there should be an abatement (from the purchase price, notwithstanding the refusal of the wife to sign the deed was in no- way attributable to the conduct or influence of the vendor. In that case the wife had by her conduct not only unequivocally consented to the sale, but had measurably induced her husband to contract to sell, and her subsequent refusal to join in the conveyance was obviously due to an advance in- the market value of the land. There also existed in that case the additional circumstance that the vendee, in reliance upon the contract, had placed himself in a position from which he could not be extricated without irreparable loss— the loss including the destruction of his business.

These two controlling circumstances are absent from the present case. The wife of vendor was present when the contract of sale was signed. Before that time she had told the vendee and also her husband that she would not sign, a deed. On the occasion when the contract was signed she stated that she would sign the deed providing her husband would purchase another home for them to occupy before the time when they annually went away for the summer. Delay was thereafter occasioned by reason of objections made to the title by the title company, and when those objections were removed the wife refused to sign because of the delay, claiming it was then too late in the season to accomplish her declared purpose. While that delay in no way relieved the vendor from his equitable obligation to convey an unencumbered title, it was clearly operative to relieve the wife from any obligation incurred by her through her conditional promise to join in the deed, since the vendee could not properly rely upon her promise except as qualified by her. Complainant claims that no such condition accompanied the wife’s assent to the sale; but three witnesses have testified to the contrary and a finding of fact against the existence of such a condition would be clearly unjustified.

In the present ease there is also the absence of anything in the nature of irreparable injury to complainant. Complainant’s purchase was wholly for puiposes of speculation. His loss, if any, is the loss of his bargain, which loss a law court coulcl easily measure and reeompence.

In these circumstances I am unable to conclude that this court should make a decree for specific performance with either indemnity or abatement.

It is difficult to understand why any vendee, especially an attorney-at-law, will neglect to procure the signature of his vendor’s wife to a contract of sale of land, when he knows that his vendor is married, if specific performance is within his anticipated remedies. Indeed, in the English cases, and in many cases in this country, it is declared that in such circumstances the equitable remedy with indemnity or abatement is in no case available, although that view has not been yet adopted in this state. See Pom. Spec. Perf. § 461.

Since complainant refuses to accept a conveyance subject to the inchoate right of dower, I will advise a decree dismissing the bill, but without prejudice to any action at law which complainant may be advised to pursue.


author: Beaming, V. 0.

text:
    Bertha M. Hostetter v. Bella Merrick et al.
    [Submitted November 24th, 1920.
    Determined November 30th, 1920.]
    1. It is a well-ireeog'nized duty of a court of equity to decree specific performance by a vendor with an abatement from the purchase price by reason of deficiency in the quantity of land contracted for.
    2. Where the sale was of an hotel property, enclosed by fences on the true line, specific performance will not be granted with an abatement for deficiency because the vendor’s description erroneously described the land, the dimensions of the lot not affecting the price in the slightest degree.

      On final hearing on bill for specific performance.

      Mr. Morris Bloom (with whom was associated Mr. Ulysses G. Sty ron), for the complainant.

      Mr. Clarence L. Cole, for the defendant Bella Merrick.

      Messrs. Schwinghammer & Repetto, for the defendant Elizabeth Goodwin.
   Beaming, V. 0.

This is a suit for the sjoeeific performance of a written contract for the sale of real estate. Complainant, as vendee, seeks a decree against vendor with an equitable abatement from the purchase price by reason of tire vendor’s inability to convey all the land embraced within the boundaries as described in the agreement of sale.

The description contained in the agreement is as follows:

“All the lot, tract or parcel of land and premises hereinafter particularly described, situate, lying and being in the city of Atlantic City, in the county of Atlantic and State of New Jersey, being premises situate at and known as No. 1510 Pacific avenue, the said lot being thirty-four and one-half feet front on Pacific avenue and of that width one hundred feet in depth."

The property owned by vendor is No. 1510 Pacific avenue, but is only thirty-four feet in frontage on Pacific avenue. It is one hundred feet six inches in depth on its westerly side boundary line and one hundred feet in depth on its easterly side boundary. These two side boundary lines of the lot also converge so that the rear or southerly boundary line of the lot is but thirty and forty-two hundredths feet. It is by reason of this deficiency in the superficial area of the lot that the vendee seeks as a part of a decree of specific performance compensation by way of abatement from the purchase price.

There is on the lot a three-story frame hotel building; the contract price is $23,000, which, price includes the furniture and fixtures in the building. The hotel is within the true bounclaries' of the lot/ and the lot is fenced on its true rear and side lines.

It is a -well-recognized duty of a court of equity to decree specific performance by a vendor of a contract of this nature with an abatement from the purchase price bjr reason of deficiency in the quantity of land contracted for, and, essentially the same relief is frequently administered in the foreclosure of a purchase-money mortgage when deficiency in quantity of the land sold has been ascertained. But I think no case of either class is to'be found in which relief has been given for deficiency in quantity of land in tire absence of fraud unless it has satisfactorily appeared that the element of quantity of land was of the essence of the contract. Where a sale is by the acre or other unit of superficial contents, and a substantial mistake has been made touching the area, a vendee may be equitably awarded appropriate compensation for deficiency in quantity, or where the mistake in quantity is so gross that it is clear the purchaser would not have contracted had he known the mistake, like relief may be awardéd; but where from all the circumstances of the case it is clear that the sale was in gross, and that the purchaser was not in fact influenced in the price he agreed to pay by any mistake touching area, there is-obviously no equitable ground for abatement from the 'purchase price. On the contrary, in such circumstances, an abatement from the purchase price would be clearly inequitable. Becognition of these principles will be found in Weart v. Rose, 16 N. J. Eq. 290, 298; Melick v. Dayton, 34 N. J. Eq. 245, 250; McMichael v. Webster, 54 N. J. Eq. 478, 492; Straus v. Morris, 78 N. J. Eq. 488, 494.

In the present ca.se the evidence adequately discloses that the error contained in the agreement of sale touching the dimensions of the lots arose from the parties depending on the memory of the vendor touching the dimensions of the lot at the time the contract was being typewritten. Prior to that time the property had been inspected on behalf of the vendee and the purchase price had been agreed upon, but while the contract was being typewritten to embody the terms thus agreed upon the vendor was called upon to supply the necessary description; not having her title-papers she supplied the description from memory and it was inserted in the agreement as she supplied it. She, aceordingly, made the error which is now found in the written contract of salé, but did so innocently, and from the evidence it is entirely clear that the error thus made in the dimensions of the lot did not in the slightest degree influence the price which the vendee agreed to pay. In these circumstances it would be clearly inequitable to award to the vendee compensation for the error which in no way influenced her engagements.

I will advise a decree denying the relief sought.


author: Lewis, V. C.

text:
    Elizabeth Clara Fehr, born Elizabeth Clara Klein, petitioner, v. Joseph Fehr, defendant.
    [Decided December 6th, 1920.]
    'Where a husband at the time of marriage suffered from a physical condition which rendered sexual intercourse with a normal woman impossible, the wife was entitled to a decree of nullity, although prior to the marriage the husband informed the wife that there could be no children but that sexual intercourse could be performed.
    On petition for nullity. On pleadings and proofs.

      Messrs. Kent & Kent, for the petitioner.

      Mr. J > Emil Walscheid, for the defendant.
   Lewis, V. C.

The petition is filed for the annulment of the marriage between petitioner, Elizabeth Clara Fehr, born Elizabeth Clara Klein, and the defendant, Joseph Fehr, under the statute providing for decrees of nullity of marriage (P. L. 1907 p. 474 § 1 subdiv. 111), wherein it is provided as follows:

“1. Decrees of nullity of marriage may be rendered in all cases when
“111. The parties, or either of them, was at the time of marriage physically and incurably impotent; provided, the party making the application was ignorant of such impotency or incapability at the time of the marriage, or has not subsequently ratified the marriage.”

Under the facts established bjr the testimony it appears that at the time of the marriage of the parties, which was performed ceremonially on May 27th, 1917, the defendant suffered from a physical condition which rendered sexual intercourse, with a normal woman, impossible. This resulted from a congenital disability, and, consequent, surgical treatment.; and I am satisfied from the evidence that that condition is permanent and incapable of being satisfactorily remedied.

The parties resided in New Jersey from a few days after the marriage until June 19th, 1919, when petitioner left defendant. Defendant has continued to reside in New Jersey to the present time.

Prior to the marriage defendant hayl informed the petitioner that there could, perhaps, be no children as a result of their union, because of a defect from which he suffered, but that sexual intercourse between them could be performed. Petitioner stated that immediately after the marriage she learned of the existence of defendant’s abnormality; and, as a matter of fact, he was never able to have -sexual intercourse with her. She continued to live with him, however, for about two years, in the hope that the condition might be remedied, but this was not done, and eventually her health became so impaired, and her nervous system so injin’ed as a result of the unnatural situation,' that she was obliged to separate herself from the defendant.

The evidence of the physicians shows that the petitioner is in all respects normal and apt for coition; but that, because of the defendant’s condition, sexual intercourse between these parties was impossible.

I shall, therefore, advise a. decree for nullity of the marriage as prayed for.


author: Lewts, Y. C.

text:
    Emma Kate Ross v. Frank A. Duffy et al.
    [Decided December 6th, 1920.]
    Mandatory injunction will be granted against a grantee who, with knowledge and against protest, built on his lot nearer than twenty-five feet from the street, in violation of a building restriction contained in a recorded deed to his grantor, which by its terms binds all successors and assigns.
    On bill for mandatory injunction. Heard on pleadings and proofs.

      Messrs. Kellogg & Chance, for the complainant.

      Mr. Nathan R. Leavitt and Mr. Schuyler M. Cady, for' the defendants.
   Lewts, Y. C.

This is a suit for an injunction to restrain the violation of a building restriction forbidding the erection of a building within twenty-five feét of the front street line, and to compel a compliance with the restriction. The restriction is set forth in a. deed, which is in evidence, conveying a certain tract of land at the southwesterly corner of Second avenue (as widened) and Walnut street, in the borough of Roselle, Union county, New Jersey, from Emma Kate Ross and P. Sanford Ross, her husband, to the Clio Club, a corporation, dated May 25th, 1910, and is as follows:

“And subject, nevertheless, to and this, indenture is made upon these express conditions, covenants and restrictions, which the said party of the second part, for itself, its successors and assigns, does covenant and agree to observe, perform and keep as part of the consideration of this conveyance, and also as a charge upon the said lands and premises to it hereby conveyed; that is to say, that it, the said party of the second part, its successors or assigns, or any of them, shall not at any time hereafter erect, suffer or permit any buildings 'of whatever kind or description within twenty-five feet of the front of said lands hereby conveyed on the aforesaid streets and avenues, but the said frontage of twenty-five feet on the aforesaid streets and avenues is hereby expressly restricted to the uses and purposes of courtyards, and shall not be devoted to any other uses or purposes whatever.”

The deed was recorded in the Union county register’s office on June 29th, 1910, in Book 550 of Deeds, pages 504, &c.

The premises thus conveyed were a part of a tract of land previously conveyed to the said Emma Kate Ross by'the Roselle Land and Improvement Company, by deed containing the same restriction, dated June 1st, 1885, and recorded in the office of the clerk of the county of Union, on November 17th, 1885, in Book 178 of Deeds, pages 219, &c.

Later, the Clio Club conveyed to the defendant Frank A. Duffy, but without expressly including the restriction in its deed to him.

Duffy, however, had actual knowledge of the restriction, and, of course, was unquestionably charged with constructive notice of it by the prior recorded deeds.

In fact, there is no denial either of the existence of the restriction or of its violation. Defendants, however, seek to justify the violation and to maintain their right to have the building in question erected within the restricted area because of (1) the laches of complainant; (2) the general disregard of the restriction by others; (3) the insignificant injury resulting to complainant; (1) the serious inconvenience and expense resulting to defendants.

It is clear that the building was erected in violation of the restriction, with full knowledge of the complainant’s rights and the assertion thereof; and that the builder proceeded at his peril, contending that he was right in his interpretation of the restriction; and completed the building even after this suit was commenced in order to determine whether he was right or wrong.

It is not like the ease of Winslow v. Newcomb, 100 Atl. Rep. 613, where defendant acted in ignorance of complainant’s rights and complainant stood, by and permitted him to proceed to iris disadvantage; but is more nearly in accord with Bridgewater v. Ocean City Railway Co., 62 N. J. Eq. 276; affirmed, 63 N. J. Eq. 798. There, Vice-Chancellor Grey (at p. 292 of the Chancery Report), said:

“The defence that the complainant stood by and suffered the defendants to spend their money is dependent upon another circumstance, and that is., that the defendants must, in order to avail themselves of that defence, have acted in ignorance of the complainant’s rights upon which they intruded. If a party has notice that he is building in another’s lands, or in derogation of another’s rights, he proceeds at his own peril. * * * Slight inquiry by the defendants would have disclosed to them what their use was, if they were, in fact, at any time ignorant of it. The defendants were fully notified by all these circumstances of the outstanding covenant, and were bound by it as was the original covenantor.”

See also Sanford v. Keer, 89 N. J. Eq. 240.

In the light of this, the points urged by defendants in defence of the action cannot prevail.

I conclude that the complainant is entitled to a mandatory injunction as prayed for, and will so.advise.


text:
    Catharine Schulz et al. v. Louis Garibaldi et al.
    [Decided February 15th, 1921.]
    Where a doubtful title to real estate is involved, this court will not compel specific performance of a contract to convey it; such doubtful title must be settled in a court of law, and the bill filed for specific performance in this court will be held until the question of title is determined in the law courts.

      On motion, to strike out answer to bill for specific performance of contract to convey real estate.

      Messrs. Gaede & Gaede, for the complainants.

      Mr. William II. Bradley, for the defendants.
   Lewis, V. C.

The facts are these: The premises in question were conveyed to Ahrend H. Von Seggern and Sophie Von Seggem, liis wife, by deed] bearing date September 28th, 1887; the grantees thereby, under the law of this state, taking an estate by the entirety.

By deed dated April 10th, 1899, the husband, Ahrend H. Von Seggem, conveyed to John H. Grouts “all the undivided one-half title and interest in all tract or parcel of land and premises hereinafter particularly described,” &c.

The wife, Sophie Von Seggern, did not join in this, deed, nor does it appear that she expressly assented to the conveyance, but it is admitted by complainants herein that the conveyance was made with her knowledge.

On the same date, and at the same time, Grouts reconveyed to the wife, Sophie Von Seggern, using the same language as above quoted.

The wife, Sophie Von Seggem, died''testate March 22d, 1901, leaving her husband, Ahrend H. Ahm Seggem, and their children, Catharine Schulz, Jeannette Grouts and Sophie Breckwolt, surviving.

The husband, Ahrend H. Von Seggem, died September 10th, 1907, intestate, leaving as his only heirs-at-law the three children above named.

In and by her will, the wife, Sophie Von Seggem, devised all the real estate that she owned at the time of her death to her three children aforesaid, for life, and after their death to her grandchildren.

On October 1st, 1920, complainants, of .whom two are Catharine Schulz and J eannette Grouts aforesaid, entered into a written agreement with the defendants to sell “all their undivided two-thirds interest” in and to the premises mentioned and described in the bill.

Defendants refused to take under the agreement, asserting that said complainants have not a good and marketable title to the interest in said premises which they agreed to convey.

Three questions arise oru the motion to strike out answer:

First. Can an estate by the entirety be extinguished by the husband conveying to the wife, through a third party conduit, without the wife joining in the deed, so as to vest in the wife the' entire estate, and divest the husband of his estate and right of • survivorship ?

Second. Can such a result be so accomplished without the wife’s joining in the deed, but done with her knowledge, and, presumably, with, her assent?

Third. Assuming that’such a result could be so accomplished was it effectively accomplished in the present instance by the deeds which conveyed simply “all the undivided one-half title and interest” aforementioned?

Defendants contend that by means of the conveyances aforesaid, the wife, Sophie Von Seggern, became seized in fee of the entire estate in the premises involved-; and that, by the terms of her will, complainants are vested with a life estate only in their interest therein, and hence, cannot convey the fee under the agreement of sale.

The complainants contend that the husband, Ahrend H. Von Seggern, did not divest himself of his estate, and particularly his right of survivorship; by the conveyances mentioned, and that, upon the death of the wife during his lifetime, the fee vested in him by right of survivorship; and hence, that upon his death the fee descended to his heirs-at-law, who are now effectively seized of the premises in question in fee, and have- the power and right to- convey their interest in the same under the terms of the agreement aforesaid.

I am inclined at this time to hold that the conveyances mentioned, together with the knowledge and presumed assent of the wife thereto, operated to vest in the wife the fee to the premises in question; and that the husband’s right of survivorship in the estate by the entirety was thereby extinguished.

It would follow that under the will of the wifej Sophie Yon Seggern, the children took 'a life estate only, in the premises, and that, under the agreement of October, 1920, complainants cannot convey a good and marketable title for an undivided two-thirds interest-in the premises described in the bill.

Defendants, therefore, should not be obliged to specifically perform under the agreement, and the answer should stand.

But the case presents another difficulty which, to my mind, is at this point insurmountable. A doubtful title to real estate is involved, and it seems to- me that this question is one which properly should be determined in a court of law, for, even though this court should find ’in favor of the title in one party or the other, it would not be dispositive and conclusive upon ultimate parties.

The opinion of this court in this action in favor of the title either way will not cure its defects, if they exist; and I feel that I should no more compel the vendor to keep a doubtful title by the decree of this court, than that I should compel the vendee to so accept a title which .other courts may consider invalid.

However much I may, myself, be convinced of its validity in one party or another, the question of title must be tried out in a court of law. Meantime, I will hold the bill.


author: Backes, V. C.

text:
    The Home Brewing Company v. Regina Mahler, executrix, &c.

    [Submitted November 23d, 1920.
    Decided December 9th, 1920.]
    1. While under the Orphans Court act a creditor of a decedent’s estate who does not present his claim within the tim'e limited may not recover at law against the executor or administrator, he is preferred to legatees' and -distributees, and is entitled to be -paid if assets remain after the statutory settlement, and, therefore, under section 75, may maintain a bill against the executrix for. discovery and accounting.-

      2. The remedy given a creditor under section 72 of the Orphans Court act is available only where the estate has been judicially settled.
    3. The right of a creditor under the Heirs and Devisees act is an independent and additional remedy to his right to maintain a bill for discovery and accounting against the executor.
    4. The right of a creditor, who has not filed his claim within the time limited -to an accounting, is not confined to the orphans court, but the court of chancery has jurisdiction over all trust estates and will exercise it on a proper occasion.
    On motion to dismiss bill.

      Mr. Samuel Koestler, for tlie motion.

      Mr. Thomas Brown, contra.

   Backes, V. C.

This motion is to strike out the bill for want of equity.

The complaint contains allegations that are impertinent and prayers that are vain, which tend to confuse, but stripped of extraneous matter, the bill is for a discovery and an accounting of the assets of a decedent’s estate, which the executrix is called upon to make.

The pertinent facts and the admissible prayers are these: Reuben Mahler, at the time of his death, was indebted to the complainant in the sum of $15,343.81. Bjr his will, admitted to probate by the surrogate of Middlesex county November 14th, 1918, he gave his estate, real and personal, to his widow, and nominated her executrix, and she qualified. On January 2d, 1919, the orphans court made an order limiting creditors, which was made absolute October 3d following. After that the complainant presented its duly-verified claim to the executrix, and, upon her refusal to pay, commenced an action in. the supreme court, and was there met by a plea setting up the rules limiting and barring creditors. The decedent left real and personal property to the value of $150,000. No steps have been taken to settle the estate in the orphans court. The bill prays that the executrix account and pay the complainant’s debt.

The contention is, in support of the motion, that the comlainant, having failed to file its claim within the time limited, has lost its right to an accounting, -and that its only redress is by proceedings in the orphans court under section 72 of the Orphans Court act (Comp. Stat. p. 3833), or by a suit against the defendant as devisee, under the statute. Comp. Stat. p. 2739; Stone v. Todd, 49 N. J. Law 274 This is not sound.

The argument rests on an entire misconception of the office of the rule of the orphans court barring creditors. The rule is purely administrative, and its legal effect is to bar belated creditors from recovering at law against the executor or administrator, as well as to bar-them from participating in the orderly statutory settlement of the estate. Ryder v. Wilson’s Executors, 41 N. J. Law 9; Young v. Young, 45 N. J. Law 197; O’Neil v. Freeman, Ibid. 208; Cunningham v. Stanford’s Executors, 69 N. J. Law 9. But the rule does not discharge the debt, nor does it release the assets from liability, nor the executor from accounting therefor. The law prefers creditors to legatees and distributees. It is axiomatic that justice precedes generosity and that debts must be paid before gifts. The regulations for the speedy settlement of estates prescribed by the Orphans Court act in nowise modify this cardinal ride of equity. These regulations are intended to promote the rights of creditors and not to furnish a vehicle by which an executor may escape with the assets. Creditors in laches are entitled to be paid if there are assets remaining after the statutory settlement, and, consequently, are entitled to an accounting and have determined whether anjr surplus remains. Sections 67 to 74, inclusive, of the Orphans Court act (Comp. Stat. p. 3838 et seq.) provide the machinery for the bar, but the right to an accounting is expressly reserved by section 75, which reads as follows:

“Nothing herein contained shall prevent or bar any person from bringing and maintaining any action against an executor or administrator for or in respect of the personal estate of Ms testator or intestate, or for or in respect of any waste or misappropriation thereof by any such executor or administrator.”

That the remedy of a barred creditor is by proceeding in the nature of an accounting in the orphans court was pointed out by Chief-Justice Beasley in Ryder v. Wilson’s Executors, supra. In Dodson v. Sevars, 52 N. J. Eq. 611, Chancellor McGill sustained the bill as one for an accounting by an executrix, where the creditor had been barred in the orphans court; and although the court of errors and appeals (53 N. J. Eq. 347) vigorously criticised the frame and prayer of the bill the intimation is clear that had it been one for an accounting it would have had virtue. If the accounting is had in chancery the assets will be applied as they would be in the orphans court. Coddington v. Bispham, 36 N. J. Eq. 224, 574.

The remedy under section 72 of the Orphans Court act is not available to the complainant because the estate has not been judicially settled. Emson v. Allen, 62 N. J. Law 491.

The complainant’s right of action against' the defendant as devisee, under the Heirs and Devisees act, supra,, is an independent and additional rernedj7 to its right to pursue the personal estate of the decedent and to have it applied in payment of its debt.

The complainant’s right to an accounting is not confined to the orphans court. Chancery’s jurisdiction over trust estates is inherent. Over estates of decedents the orphans court has concurrent jurisdiction by statute. While concurrent, its exercise is, nevertheless, subordinate. Chancery yields, or rather refrains, from exercising its jurisdiction' over decedent’s estates, always, when the administration in the orphans court is routine and -without complication. In complications, or whenever the ends of justice demand, and whether the orphans court has assumed jurisdiction or not, chancery may, and does, interpose. Salter v. Williamson, 2 N. J. Eq. 480; Clarke v. Johnston, 10 N. J. Eq. 287; Frey v. Demarest, 16 N. J. Eq. 236; Dorsheimer v. Rorback, 23 N. J. Eq. 46; Coddington v. Bispham, supra; Field v. Field, 61 N. J. Eq. 154.

The case made by the bill discloses the propriety of appealing to this court. The executrix has filed no- inventory, and, consequently, the complainant is without knowledge of the extent and value, of the personal estate, which, it is alleged, the defendant has applied to- her own use. The failure to- file the inventory, I presume, is excused or justified by section 120 of the Orphans Court act (Comp. Stat. p. 3855), which makes it unnecessary to file an inventory where the executor is sole legatee.

The complainant is entitled to a full and complete discovery of the assets and to have them disclosed by. the defendant’s answer. Of this it is not to be deprived, simply because the same result might be reached through the channels of the orphans court.

I fed no valid objection to the relief sought, and the motion to dismiss the bill will be denied.


author: Backes, Y. C.

text:
    Mary I. Oertel v. Henry B. Oertel.
    [Submitted December 9th, 1920.
    Decided December 9th, 1920.]
    1. The motion of a husband to open a final decree for maintenance on the ground that he is ready to resume relations with his wife and to treat her with conjugal kindness will be denied where there is no denial of the wife’s counter allegation of desertion for the statutory period, as such desertion bars the husband’s right to resume the marriage state.
    2. A decree for maintenance necessarily implies that the court found the fact of abandonment, and is conclusive evidence of the desertion as of the time the decree was entered.
    On motion to open final decree.

      Mr. Howard Isherwood, for the motion.

      Mr. Cecil H. MacMahon, contra.

   Backes, Y. C.

This motion is to open a final decree for maintenance on the ground that the husband is now ready to resume relations with his wife and treat her with conjugal 'kindness.

The decree was entered November 2d, 1914, on an issue presented by the pleadings, that the defendant “without justifiable cause abandoned his wife and refused and neglected to maintain and provide for her.” The issue was not tried, a consent decree being entered for alimony.

To the petition of the defendant for a restoration of the marital rights, or that the decree be set aside, the complainant sets up that since the entering of the decree the defendant has been guilty of “willful, continued and obstinate desertion for the term of two j^ears,” and that this cause for action bars the defendant’s right to a resumption of the marriage state.

I regard this as a complete answer to the defendant’s application. If, since the final decree the defendant had been guilty of adultery, no one would question the position taken by the wife, and a desertion for a period of two years vests in the wife a, right of action immediately upon the termination of that period. Gordon v. Gordon, 105 Atl. Rep. 242. This right of action is a bar as formidable as that of adultery.

Deserting husbands, if they hope for reconciliation, must act within two years of the time of desertion adjudged by the alimony decree.

It is claimed that inasmuch as the decree for maintenance did not adjudge that the defendant abandoned his wife without justifiable cause and refused and neglected to maintain and provide for her, it is not evidence of desertion' as of the time the decree was entered. It is a necessary implication from the decree for alimony that the court found the fact of abandonment, and upon the present application must be regarded as conclusive evidence of the desertion, at least as of the time the decree was entered. Smith v. Smith, 55 N. J. Eq. 222.

But aside from the decree as evidence, the complainant sets up the fact that the defendant deserted her and that the desei’tion was willful, continued and obstinate for a term of two years. There is no denial of this in the moving papers, and in the absence of denial I must accept it as true.

Motion denied.


text:
    Antonetta Cicalese and Pasquale Cicalese v. Gaetano Fortunato et al.
    [Submitted November 24th, 1920.
    Decided December 16th, 1920.]
    1. An attorney recovering a judgment is entitled to the taxed costs as well as to be compensated for his services under P. L. 1914 p. 410.

    2. On a bill of interpleader relating to the disposition of the proceeds of a judgment, this court may determine the amount of compensation due the attorney who obtained the judgment.
    3. A stop-notice of a materialman under section 3 of the Mechanics’ Lien act is defective if it does not state a demand upon the builder and his refusal to pay.
    On bill, &C.

      2Ir. Gaetano M. Belfatto, fox the complainants.

      Mr. Nathan II. Berger, Mr. Henry II. Fryling, Mr. G. Berineri, Mr. Joseph J. Pdllitta, Messrs. Schwartz & Schwartz and Mr. James Mango, for the defendants.
   Backes, V. C.

Gaetano Fortunato recovered a judgment in the Essex circuit court for $1,439.02 and costs, the balance due him on a contract for the erection of a building for the complainant Cicalese. He has paid the amount of the judgment into this court, and the struggle for it is between the attorney of Fortunato, for his compensation for sendees rendered in recovering the judgment, materialmen who filed stop-notices under the third section of the Mechanics’ Lien act (Comp. Stat. p. 3294) and a judgment creditor of Fortunato, the builder, under supplementary proceedings in aid of execution. Comp. Stat. p. 2249. The bill purports, to be one of interpleader, but it is not. However, as all the parties have treated it as an interpleader, I will not raise the question at this stage, but will decide the questions presented as though the proceedings were, in proper form. If it should become necessaiy in the future to require a strict adherence to correct procedure, I will direct that the. bill be amended as to the prayer, .and enter a formal decree of interpleader, as was the course suggested in Willison v. Salmon, 45 N. J. Eq. 257.

The first question is whether the attorney who' recovered the judgment, the fruits of which I am called u-pon to dispose of, is entitled to be compensated. The cause was litigated before a jury in the circuit court, and on appeal in. the supreme court and court of errors and appeals. The taxed costs in the three courts form part of the fund paid into this court. The attorney, of course, is entitled to the costs. Phillips v. MacKay, 54 N. J. Law 319. He is also' entitled to be compensated for his services under chapter 201, laws of 1914 (P. L. 1914 p. 410), which gives attorneys “a lien for compensation, upon his client’s cause of action, suit, claim or coruiter-claim.”

The statute says that the amount of compensation is to be determined by the court in which the judgment is recovered. On interpleader, I think, this court may fix the amount. I will allow $400 and the taxed costs, which will be first paid out of the fund to Mr. Pallitta, the attorney.

Three of the four stop-notices filed before the issuing of the execution on the judgment recovered by Frederick Schill & Company against the builder, are in compliance with the third section of the Mechanics’ Lien act, and are entitled to be next paid in the order of their service—Belmont Cornice and Skylight Works, $30; Frederick Schill & Company, $121, and Cook & Genung Company, $402.47. The stop-notice of the Essex Mosaic Tile Company is defective, in that it fails to state a demand upon the builder for payment and his refusal. Donnelly v. Johnes, 58 N. J. Eq. 442. The claim will be disallowed.

Frederick Schill & Company recovered a judgment against the builder in the Essex circuit court May 29th, 1918, for $1,439.02, and on the same day issued an execution. On June 7th, 1918, upon petition'to that court, an order for discovery in supplementary proceedings issued, which included a restraint upon the judgment debtor from collecting or disposing of the fund in this suit. The question is whether the balance of the fund belongs to the judgment creditor .or to the materialmen who filed stop-notices after the execution issued. I am of opinion that it must be paid to the judgment creditor, and for this reason: At the time the stop-notices were filed the contract price was past clue and payable. It was then at the disposal of the builder and .subject to attachment by legal process. Failing to file their stop-notices before the last payment became due the materialmen lost their inchoate lien given by the fifth section of the Mechanics’ Lien act. Slingerland v. Binns, 56 N. J. Eq. 413. Their stop-notices operated only from the time of service, and then only upon the amount in the owners’ hands payable to the builder. Adams v. Wells, 64 N. J. Eq. 211; Taylor v. Reed, 68 N. J. Law 178. At that time there was nothing payable to the builder. It was then attached in the supplementary proceeding and payable to a receiver to be thereafter appointed. Under the statute it vested in the receiver as of the time of the issuing of the execution. Coleman v. Roff, 45 N. J. Law 7; Seyfried v. Stoll, 56 N. J. Eq. 187. No receiver has as yet been appointed. The judgment creditors erroneously thought themselves enjoined from having one appointed by the injunction in this suit. There is still time to have the appointment made. That would be purely perfunctory. If a point is to be made of the absence of a receiver, I will suspend the decree until the chaotic condition of the pleadings and procedure in this suit- is cleared up. Otherwise, a decree may be entered discharging the complainants and awarding the fund in' the manner indicated.


text:
    Anna Margulies, petitioner, v. Joseph Margulies, defendant.
    [Decided December 29th, 1920.]
    The continuity of a husband’s willful and obstinate desertion of his wife is not interrupted by his draft into the army.
    On petition for divorce.

      Mr. Charles M. Myers, for the petitioner.

      Mr. Edward Schoen, for the defendant.
   Backes, V. C.

This petition for divorce, filed April 28th, 1920, charges the defendant with “willful, continued and obstinate desertion for the term of two years.” The desertion took place April 14th, 1918. Shortly thereafter the defendant was drafted into the army and served eight months. The proofs show, unmistakably, that the desertion, was willful and obstinate throughout, and the only question is whether the involuntary military service interrupted the continuity. During the short married career of the young couple, and up until the desertion, the defendant treated his wife brutally, and1 after his discharge, and up until the commencement of this suit, he ignored her utterly. While in the service he experienced no change of heart.

Willfulness and obstinacy are conditions of mind, and if constant for a period of two years after the abandonment, physical restraint of the deserter during that time is an immaterial incident. As was said by Chancellor McGill in Hyland v. Hyland, 55 N. J. Eq. 35: “The gravamen of the desertion contemplated by the third section of our Divorce act, is not the mere physical absence of one of tbe married couple from the other, but such absence in a prescribed condition of mind—a willful and obstinate absence. The continuance of the offence, if the indicated condition of mind continues to exist in the deserter, is not interrupted by his deprivation of physical freedom.” In Hews v. Hews, 7 Gray (Mass.) 279, the defendant was imprisoned a number of times during the running of the statutory period of desertion, and in the intervals between the several confinements he did not return to his wife nor contribute anything towards her support. A divorce was granted, the court holding that there was an intent to separate, not for a period, but perpetually, and that the desertion was independent of the imprisonment.

The cases in the English divorce court hold tire test to be the intent of the deserter, and that physical restraint, during the period of absence, is of no consequence.

In Drew v. Drew, 13 P. D. 97, the husband left to escape arrest. He was brought back and sentenced to penal servitude. It was found that the circumstances under which he left constituted desertion, and it was held that the desertion continued, notwithstanding that he was in custody and prevented by his imprisonment from returning to his wife.

In Wynne v. Wynne (1898), P. D. 18, the husband absconded tó avoid a criminal charge. The court held that over and above his main object, which was to hide1, there was also the other object, to desert his wife, and, quoting from Drew v. Drew, “that he was obliged to fly from his creditors does not exclude the idea, that he also intended to desert his wife. * * * The evidence leads to this conclusion, that a.t the time he endeavored to avoid being arrested he also availed himself of that opportunity to desert his wife.”

In Townsend v. Townsend, 3 P. & D. 129, the imprisonment was held not to support a divorce on the ground of desertion, for the reason that the original withdrawal was with the knowledge and consent of the petitioner.

Distinction is also to be noted between cases where the imprisonment is the cause of the separation and where the imprisonment occurs after the desertion.

Section 31 of the Divorce act (Comp. Stab. p. 2041) is simply declaratory of legal principles, except that it introduces a modification, that contrition during restraint does not interrupt the continuity of the desertion. It provides that

“Willful and obstinate desertion shall be regarded, held and construed to be ‘continued’ within the meaning of this act, notwithstanding that after such desertion has or shall have begun, the deserting party has or shall have been imprisoned in this or any other state or country upon conviction by due process of law for a crime, misdemeanor or offence, not political, committed in this or any other state or country, or for any other reason, shall have been under restraint, either by due process of law or his or her voluntary act.’’

Whether sendee in. the army, after the desertion commences, is through conscription, i. due process of law, or enlistment, the statute is entirely dispositive of the defendant’s contention that the period of restraint is not to be reckoned as part of the two years of desertion.

There will be a decree of divorce.


author: Backus, Y. C.

text:
    Robert A. Warren v. Thomas Warren.
    [Submitted January 3d, 1921.
    Decided January 27th, 1921.]
    1. A money decree of this court has by statute the force and effect of a judgment at law, and a decree for alimony fastens as a lien on the lands of the husband as it accrues, and such lien attaches to the husband’s share of the proceeds of such land sold in a partition suit and paid into court.

      %. A wife seeking to enforce her lien for alimony under a divorce decree of this court, is not barred by laches where the husband absconded and for twenty years concealed himself from his wife, and when she discovered him he begged for more time, which was granted, and when any effort by the wife to recover of him before he came into his inheritance would have been futile.

      3. T.he second marriage of a divorced wife does not ipso favto terminate her alimony.
    4. Where $5 a week was granted to a wife in a divorce decree for support of a wife and daughter, the subsequent marriage of the daughter did not automatically modify the decree.
    On petition, &c.

      Messi's. Iloman & Buchanan, for the petitioner.

      Mr. Charles E. S. Simpson, for the respondent.
   Backus, Y. C.

The lands involved in the above-entitled partition suit were sold and the complainant’s distributive share of the proceeds was paid into court.

The petitioner, Almira M. Loudenslager, formerly the wife of the complainant, applies to be made a party to the suit, and prays that she be paid the amount due her from, the complainant for alimony awarded by this court by the decree divorcing the couple.

The divorce was granted June 11th, 1895, with an allowance of $5 a week for the support of the wife and the infant child of the marriage. No part has been paid. Upon the institution of the divorce suit the complainant fled the state and his whereabouts were unknown to the wife until the year 1915, when she sought and found him in New York. In the interview, at that time, he induced her not to prosecute her claim for payment of the arrears of alimony by the sale of his interest in his father’s estate, which he had then recently inherited (the lands in the partition suit), by a promise that upon the settlement of the estate he would give his daughter $10,000. He admits the promise but with the explanation that the gift was to- be testamentary.

The petitioner remarried, October 23d, 1901; the child, a daughter, married January 31st, 1912. The complainant resists the payment of the arrears of alimony out of the funds in court, on the ground that the petitioner is in laches in enforcing her claim, and if this be not a bar, that it should not be allowed beyond the petitioner’s second marriage, and, at most, not beyond the daughter’s marriage.

The decree for alimony, as the alimony accrued from time to time, fastened as a lien upon the lands of the complainant when he came into his inheritance, by virtue of section 44 of the Chancery act (Comp. Stat. p. 425), which gives to decrees of this court the force, operation and effect of a judgment at law in the supreme court, and now attaches to the proceeds paid into court. An abstract of the decree was filed in the supreme court clerk’s office to preserve the priority of the lien over subsequently acquired interests. In Vreeland v. Jacobus, 19 N. J. Eq. 231, Chancellor Zabriskie said that a. divorce decree “is a judgment, so far as the counsel fee and costs are concerned, but is not a judgment so as to bind lands so> far as the cmmmity is ’ concerned”—that is to say, it does not bind lands presently for prospective alimony. In that case the surplus money in a foreclosure suit had been paid into court and the wife sought, as against a subsequent judgment creditor, to sequester and have the surplus invested and applied in payment of the alimony as it would thereafter accrue. In Close v. Close, 28 N. J. Eq. 472, the question was one of priority as between an execution on an alimony decree and an execution on a junior judgment at law which had been delivered first to the sheriff. The court held that as between the rival executions the one first delivered to the sheriff had precedence, and any provision in the divorce decree declaring the alimony a lien upon land to be ineffective. That' is, if a lien at all, it is by force of the statute and not by virtue of the decree declaring it to -be a lien. In the course of his remarks, Mr. Justice Dixon, who spoke for the court of errors and appeals, said of the statute: “This statute was not intended to embrace all decrees and to charge all the lands of all defendants with their performance, but applied only to such decrees as resembled judgments at law in the pecuniary obligations they imposed and made them equivalent to such judgments in their effect.” Alimony decrees do not, of course, resemble judgments at law, in the pecuniary obligations they impose, at the time of their pronouncement, but they take on that form as the alimony from time to time accrues, and attach to the land bjr virtue of the statute. It was so regarded by the court of errors and appeals in the later case of Stoy v. Stoy, 41 N. J. Eg. 370. That was a foreclosure suit in which the alimony decree was set up as a subsequent lien to the mortgage Under foreclosure. Vice-Chancellor Bird overruled exceptions ’ to a master’s report allowing alimony that had accrued subsequent to the docketing of the decree in the supreme court and up to the date of the master’s report. Just how the docketing of the decree was of any importance does not appear. In passing upon tire question the learned vice-chancellor said: “Now, the decree of the court is that the defendant, or other party against whom it is made [in suits for divorce it may be against complainants], shall pay a certain sum per week, each and every week, which is just as definite or absolue as the accruing of interest, and I cannot imagine any reason why it should not become a lien as it accrues as does interest. I shall so advise.’’ The judgment was unanimously affirmed.

The objection that the petitioner is in laches is without merit in fact. The complainant absconded and for twenty year’s concealed himself from his wife, and when at last she came upon him he begged for more time and it was granted. Besides, any effort by the petitioner to recover of the complainant before he came into his present inheritance would have been absolutely futile. The complainant does not stand in a favorable position to raise the question of laches, and there is nothing in the petitioner’s conduct, by way of delinquency, to invoke the bar.

The practice of the English ecclesiastical courts not to ordinarily enforce arrears of alimony extending beyond a year, as observed by Mr. Justice Pitney, in Lynde v. Lynde, 64 N. J. Eq. 736, 753, is not applicable in cases where the arrears are due to the willful defiance of the decree by the husband. In DeBlaquiere v. DeBlaquiere, 3 Hagg. Ec. 322, cited in the Lynde Case, the husband petitioned to reduce the alimony and the wife countered to enforce arrears- The arrears arose from reduced payments on the installments. The court refused to interfere because of inconvenience, and the acquiescence on the part of the wife in the diminution, of the alimony, from which Dr. Lushington said it was clear that she never intended to call for the arrears. And in Wilson v. Wilson, cited in the footnote to the DeBlaquiere Case, the court refused to enforce for more than one year, holding that “if the wife is aggrieved she should make her application .within a reasonable- time, otherwise the court will infer she has made some more beneficial arrangement”—acquiescence. But it is clearly inferable from these authorities that if the default is due to the short comings of the- husband,'in which the wife has no share, the court will not hesitate to compel a compliance with the terms of the decree. In other words, relief will be granted if the wife shows sufficient cause for the delay in appealing to the court.

The second marriage of a divorced wife does not ipso facto terminate the alimony. 2 Bish. M., D. & S. 418; Gordon v. Baker, 132 Ill. App. 587; Casteel v. Casteel, 38 Ark. 477; Montgomery v. Offult, 136 Ky. 157; Linton v. Hall, 149 N. Y. Supp. 385; Cohen v. Cohen, 150 Cal. 99. Nor did the marriage of the daughter automatically modify the- decree. The award was to the wife, not to the wife and' daughter. The duty to support the daughter was not thereby shifted to the mother; the necessity of it was imposed upon her by the waywardness of the father, and the award was simply to ease her burden. The release from that burden-, by the daughter’s marriage, did not remit, pro tanto, the wife’s alimón}^, and the relief therefrom accrued to her advantage, not to that of the refractory husband.

I am referred by complainant’s counsel to Franck v. Franck, 107 Ky. 362, as a case “on all fours” with the one at bar, and a.n authority for his contention that the petitioner should not bo allowed alimony after her remarriage. The wife there obtained a decree in 1879; she remarried ten years later. In 1896 she applied to the chancellor, who determined the amount due at that time, but refused to enforce the decree beyond the second marriage. The facts in that case show that the husband was at all times accessible. The chancellor refrained from following the practice of the ecclesiastical courts of England, allowing one year’s arrears only, but refused to- go beyond the date of the second marriage because of the wife’s delay, and the appellate court rested its affirming judgment, in a measure, upon the theory that had the husband applied to the chancellor, at the time of his wife’s second marriage, to terminate- the alimony, the chancellor would have sustained his motion—a theory that seems to me to be wholly inadmissible where the husband is contumacious.

The effort to check the running or to modify the divorce decree is misdirected in these proceeding's. I must enforce that decree, as a lien, as it is here presented. Both cases are in this court, it is true, but I must, nevertheless, treat them as though they were in different tribunals. If a motion for relief from the force of the alimón)' decree were pending in the divorce suit, and an application to suspend judgment in the present proceeding were made, I would, of course, await the determination of that litigation. But it seems to me the complainant would be in no better position on such a motion than he is here.

Upon an application to modify, in the divorce suit, the complainant would receive scant consideration until he purged himself of the contempt. Rigney v. Rigney, 62 N. J. Eq. 8. Had he obediently complied with the alimony decree, and then, upon his wife’s second marriage, applied for a modification, it would have been disposed of on its merits as to amount; or, if then, had he shown an honest desire and inability to comply with the alimony decree, his plea would have been received' with at least some degree of sympathy. But, as he has spurned the decree and defied the power and authority of the court throughout, his supplications would fall on deaf ears and relief would be withheld.

The enforcement of the arrears, to date is but equitable under the circumstances. The complainant’s conduct towards his wife, during their cohabitation of a few years, was despicable and shocking, as the testimony in the divorce suit here offered in evidence show's. The alimony, a mere pittance, was fixed at $5 a week because Warren was a vagabond. Even this dry-bread allowance he denied his wife and infant, who were utterly destitute, and whom he shamefully abandoned. When the petitioner was able she went to work to support herself and the baby, and struggled for years until she married the man whose name she now bears. The complainant stayed out of ready reach of process to enforce the alimony, and the only, respect he has shown for the decree is the effort to avoid its execution in the partition suit. In rearing the child to womanhood, her education, and fitting her out for marriage the petitioner spent over $5,000, all of which the father, the complainant, would have borne had he been mindful of his obligations, not to mention proper support of his wife. And when it is taken into consideration that the petitioner is deprived of dower in the lands in question, by reason of the decree of divorce, it can be readily calculated that she is out of pocket, though she get all of the arrears. If the enforcement of the decree for arrears rests in sound discretion, as some of the authorities seem to hold, then justice requires, in view of all of the circumstances, that the discretion be exercised in favor of the petitioner. I will so advise.