author: Walker, Ordinary.

text:
    In the matter of the estate of Hannah Atkinson, deceased.
    [Decided November 10th, 1921.]
    1. Añ unnoted and unexplained alteration apparent upon the face of a will is presumed to have been made after execution, and the burden of proof is upon any party asserting the contrary to show that, the alteration was in fact made before the execution of the testament.
    2. An. unnoted and unexplained alteration apparent- upon the face of a will, made after execution, is entirely inoperative, and in such case the testament should be admitted to probate with the alteration stricken out.

      3. H. A. duly executed her last will and testament and a codicil thereto; at the end of one of the items in the codicil, and at the bottom of the first page, she wrote with her own hand the following: “Give sally the guint lookins glass Hannah Atkinson” (meaning, doubtless, give Sallie Haines — the only “Sallie” mentioned in the instruments — the gilt looking glass). Both subscribing witnesses to the codicil testified that at the time of its execution only the last page thereof, on which was the signature of the testatrix, was exhibited to them, and that neither of them saw the first page upon which the interlineation appears; there was no other testimony. — Held, that the interlineation must be held to have been made after execution, and is therefore void. Held, further, that the will and codicil be admitted to probate, with the interlineation stricken from the codicil.
    On petition for probate of will and codicil thereto.

      Mr. I-Iarold B. Wells, for the petitioners.
   Walker, Ordinary.

The will of Hannah Atkinson, late of the county of Burlington, deceased, and a codicil thereto, are offered for probate in this court. They are in typewriting. Both the subscribing witnesses to the codicil, in which occurs the alteration hereafter referred to, were examined and testified that at the time of its execution only the last page thereof, on which was the signature of testatrix, was exhibited to them, and that neither of them saw the first page on which an interlineation in manuscript in the testatrix’s handwriting, which they knew, appears as follows: “'Give sally the guint- lookins glass Hannah Atkinson” (meaning, doubtless: .Give Sallie Haines1 — the only “Sallie” mentioned in the instruments — the gilt looking glass). The question is, Was the alteration made before or after the execution of the codicil, and if afterward, what is the effect of it ? There is no testimony on the subject of the alteration except as above stated.

In Ward v. Wilcox, 64 N. J. Eq. 303, Magie, ordinary, in considering an alteration apparent upon the face of a will, and which was unnoted by anything appearing on the instrument, held, that, assuming that that raised a presumption that the alteration was made after execution, such presumption in the case before him was overcome by evidence that it was made before execution; and (at p. 309) he observed that in the circumstances it was unnecessary to decide what effect would have been produced if such presumption had been left unrebutted. Affirmed on the opinion of the ordinary. 65 Ibid. 397. It has, however, been since decided, both in this court and in the court of last resort, that an unnoted and unexplained alteration apparent upon the face of a will is presumed to have been made after execution, and that- the burden of proof is upon any person asserting the contrary to show that the alteration was in fact made before execution. Smith v. Runkle, 97 Atl. Rep. 296. Essex county orphans court, per Martin, J.; affirmed, prerogative court, Ibid. 305, per Walker, ordinary; affirmed, court of errors and appeals, per curiam, 98 Atl. Rep. 1086. There were three appeals altogether, and the questions raised were comprehended in the decision of tire orphans court (97 Atl. Rep. 296), and also in my opinion affirming that court (Ibid. 305). Each appeal was treated separately by the court of errors and appeals. The one above referred to (Smith v. Runkle, 98 Atl. Rep. 1086) was on the question involved in the 'case at bar; and the others (Godley v. Smith, Ibid. 1085, and Smith v. Scholfield, Ibid. 1087) were on other' questions.

In Smith v. Runkle, the point left undecided by Magie,. ordinary, in Ward v. Wilcox, as to what effect is produced where alteration after the execution of a will is shown, is also undecided; and that because in Smith v. Runkle, as in Ward v. Wilcox, the presumption was rebutted and the alteration was shown to have been made before execution. There is this difference between the two cases: In Smith v. Runkle, Judge Martin observed that there was no direct and positive evidence to show when the alteration of the will was made, whether before or after its execution or that of the codicil, and he held, as a fact, that the alteration (half sheet) was prepared and annexed to the will prior to the execution of the codicil, and that the execution of the codicil re-published and re-executed the will, citing authorities. The principle is the same whether ait alteration is made before the execution of a will, or, if made afterward, is made before the execution of a codicil which re-publishes the. testament with the alteration in it. ’

Now, as to the open question, namely, the effect of an unnoted and unattested alteration made upon the face of a will after its execution.

In the Matter of Prescott, 4 Redf. (N. Y. Sup. Ct.) 178, it was held:

' “Where the testator, after the execution of his will, makes erasures and interlineations therein, without intending to revoke, and without re-executing the same, the will will be admitted to probate as originally executed.”

In Gardn Wills (1916) it is stated (at p. 234) :

“If made after execution additions are inoperative unless the will is re-executed, or unless there is a further execution with reference to the particular alterations.”

In 1 Alex. Com. Wills (1917), it is laid down (at p. 768) :

“The general rule may be stated that no obliteration, addition, interlineation or alteration of or to a will, by the testator subsequent to the execution of the instrument, is effective to alter the dispositions originally made, provided the will as it originally stood can be deciphered, or, with the aid of extrinsic evidence, can be supplied.”

In 40 Cyc. the text-writer states (at p. 1097) :

“Alterations made subsequent to the execution of the will are generally held not to revoke the will or to impair its validity as a whole, especially where the alterations made are of an immaterial nature and do not change the legal effect of the provisions of the will,”

and (at p.1196) :

“An addition to, or alteration of, a will does not operate to revoke it unless made animo revocandi, and that intention, to be effective, must be evinced in the mode prescribed by the statute.”

The principle laid down by the above-mentioned authorities, to the effect that an unnoted and unexplained alteration apparent upon the face of a will, made after execution, is inoperative, is so apparently sound and entirely consonant with right reason that I deem it unnecessary to examine the numerous authorities cited by the text-writers in its support. •

Our statute of wills provides bow any written revocation of a testament, or any part thereof, may be made. See Comp. Stat. p. 5870 § 25.

Mrs. Atkinson, in her will, after devising certain real and personal property, provides that all of the residue of her property, real and personal, is to be converted by her executors and distributed among certain-named legatees. In the codicil (in which the intérlineation occurs), after ratifying' and confirming her will save as altered in the codicil, she makes specific bequests to certain persons. At the end of the seventh item the interlineation in her handwriting appears, as follows:

“Give sally the gumt lookins glass Hannah Atkinson.”

As above remarked, there is no evidence whatever as to when this addition was made; and it must, therefore, under our decisions, be held to have been made after execution. The looking-glass referred to in the addition is not otherwise specifically disposed of, and, therefore, passes to the executors in trust under the residuary clause in the will. There is nowhere apparent an intention to impair the validity of any provision of the will or codicil by or through the addition made by testatrix.

The result reached is, that in admitting the will and codicil to probate the words interlined in manuscript in the codicil, namely, “Give sally the guint lookins glass Hannah Atkinson,” must be stricken from the instrument.

Order for probate accordingly.


source: Caselaw Access Project

author: Buchanan, Vice-Ordinary.

license: Public Domain

text:
    In re estate of Luther Kountze, deceased.
    [Decided November 23d, 1920.]
    1. Under the 'Transfer Inheritance Tax act of this state (P. L. 1909 p. 325, as amended, P. L. 191J¡ p. 267) the tax imposed upon the specific devise, or bequest, by the will of a non-resident decedent, of certain kinds of property located within this state, is to be computed under the provisions of section 1 of that act, and not tinder section 12.

      2. Under the said statute, where a non-resident decedent, by his will, transfers property located in this state, part by specific devise or bequest and part otherwise, the tax under the provision® of the “ratio clause” of section 12 can be computed only upon that portion of the New Jersey pi-operty, not specifically devised or bequeathed. . ■
    3. Under the said statute, where a non-resident decedent, by his will, transfers property located in this state, part by specific devise, or bequest, and part otherwise, (a) the ratio between the value of decedent’s entire estate, wherever situate, and the value of the New Jersey property not specifically devised or bequeathed, is fixed as the ratio which shall exist between the entire tax to which the decedent’s entire estate would have been subject if he were a resident of New Jersey and the tax which shall in fact be assessed on the transfer of the New Jersey property not specifically devised or bequeathed; (Z>) in determining the value of decedent’s “entire estate” for such purpose, the value of the New Jersey property not specifically devised or bequeathed is not to be deducted or excluded, either in arriving at the “entire estate’’ member 'of the proportion or in arriving at the “entire tax” member of the proportion.
    On appeal from assessment of transfer inheritance tax.

      Mr. John M. Mills, for the appellants.

      Mr. William Newcorn, assistant attorney-general, for the state.
   Buchanan, Vice-Ordinary.

The comptroller of the treasury assessed transfer inheritance taxes aggregating^,306.33, in respect of the transfers under and by, the provisions of the will of Luther Kountze, deceased. The appeal which has been taken therefrom is based upon three grounds.

The first ground is that the ta-x upon the residuary estate was computed without first deducting from said residuary estate the amount of the estate tax ($694,949.70), to which the estate was subject under the provisions of the act of congress in that bebalf. That this was erroneous is established by the decision in Re Roebling’s Estate, and is conceded by the state.

The second ground is an indefinite, general allegation that the provisions of the Transfer Inheritance Tax act, “in so far as they relate to the property of non-resident decedents, are in violation of the constitution of the State of New Jersey and of the constitution of the United States,” and that, hence, the tax imposed thereunder is void. Whatever appellants may have had in mind in this behalf need not be considered, inasmuch as no mention was made thereof in the oral argument, or on the brief, and the point will be deemed abandoned.

The third contention is that the comptroller erred in regard to the taxes in respect of New Jersey property specifically devised and bequeathed, in that he did not assess such as simple taxes upon the value of that property alone, but assessed them at a certain proportion of the tax to which the estate would have been subject had decedent been a resident of New Jersey and all his property situate in this state.

The statute under the authority of which, it is claimed, the tax in question is assessed is P. L. 1909 p. 325, as amended by P. L. 1914. p. 267. The provisions of that act which impose taxes on the transfer of property by the will of .a non-resident decedent are found in section 1 and section 12 thereof.

Under section 1 the tax is imposed upon the transfer (by will of a non-resident decedent) of certain kinds of property located within this state, at a certain rate per centum upon the value of the property so transferred. That rate,’in the case of a wife, son or daughter, is one per cent, on the amount in excess of $5,000 up to $50,000; one and one-half per cent, on the amount between $50,000 and $150,000; two per cent, on the amount between $150,000 and $250,000, and three per cent, on any excess over $250,000.

In the present case, the property whose transfer is taxable under section 1 — i. e., the property located in "New Jersey— amounts to $310,139.37. Of this the will specifically gives to the widow $90,953.96; to the son $163,135.62; to the daughter $20,-898.29, leaving a balance of $35,151.50 not specifically devised or bequeathed.

Under the provisions of section 1, then, the taxes to rvliich these transfers to widow, son and daughter would he subject, would be as follows:

Widow Amount of Transfer, $90,953.96

$5,000.00 at 0%

45,000.00 1% $450.00

40,058.90 m% 014.31

$90,953.90 $1,064.31 tax '

Son Amount of Transfer, $163,135.62

$5,000.00 at 0%

45',000.00 “■ 1% $450.00

100.000.00 “ 1 %% 1,500.00

13,135.02 “ 2% 202.71

$163,135.02 $2,212.71 tax'

Daughter Amount of Transfer. $20,898.29

$5,000.00 at 0%

15,89S.29 “ 1% $158.98

$20,898.29 $158.9S tax

The $35,151.50 of New Jersey property, which, is not specifically given bythe will, falls into the residue of the estate, and I will defer for the time, being the consideration of.the tax imposed upon its transfer. ■ ■

The only other portion of tbe statute containing provisions for the imposition of a tax upon the transfer of property under the will of a non-resident decedent is the so-called “ratio-tax” clause, being the last clause of section 12, which reads as follows;

“A tax shall be assessed on the transfer of property made subject to tax as aforesaid in this state of a non-resident decedent, if all or any part of the estate of such decedent, wherever situated, shall pass to persons or corporations taxable under this act, which tax shall bear the same ratio to the entire, tax which the said estate would have been subject to under this act if such non-resident decedent had been a resident of this state, and all his property, real and personal, had been located within this state, as such taxable property within this state bears to the entire estate, wherever situated; provided, that nothing in this clause .contained shall apply to any specific bequest or devise of any property in this state.”

I think it is sufficiently clear that the provisn at the end means that the clause or paragraph shall not apply to any specific testamentary gift of New Jersey property; that as to any such testamentary gift the tax is not imposed under the provisions of this paragraph of .section 12, but is .left to be computed under section 1. . ■

'I think it is equally clear that that. is. precisely what was held bjr this court in Lawyers’ Title and Trust Co. v. Comptroller, 95 Atl. Rep. 1003.

There is one difference between that which was done in the assessment under review in that case 'and that which was done in the assessment in the present case. Here, as there, the .comptroller took the total aggregate value of all property, both in and out of New Jersey, passing to the beneficiary; deducted the statutory exemption of $5,000 and computed what the tax would be on the balance under the provisions of section 1. In determining what proportion of the sum so' ascertained should be levied as the actual tax, he used, in the Lawyers’ Title and Trust Co. Case, the ratio between the value of decedent’s entire estate and the value of the property situate in New Jersey. This is the ratio specified in section 12. In the present case he used the ratio between the value of the aggregate property (wherever situate) passing to the beneficiary and the value of the New Jersey property specifically devised or bequeathed to that beneficiary. I cannot see the slightest justification for this .procedure. It is true, there is no express prohibition in the statute against it, but it is elemental that there must be plain statutory authorization, and none such exists.

The tax imposed by the statute upon the transfers by the will under consideration, therefore, is a total aggregate tax of $3,436, under section 1 of the act, upon the new Jersey property specifically bequeathed or devised (as hereinbefore particularized);. and a tax upon that portion of the New Jersey property not specifically bequeathed or devised, which is valued at $35,151.50. This latter tax is to be computed under the last clause of section 12.

To determine the amount of the “entire estate” for the purpose of applying this ratio clause, there should be deducted from the amount of the gross estate ($4,876,770.66) the deductions and exemptions of $423,475.16 as allowed by the comptroller, and the amount of federal estate tax of $694,949.70, leaving an “entire estate” of $3,758,345.80. Appellant contends that there should also be deducted the $274,987.87 — the value of the New Jersey property specifically devised and bequeathed — but such contention, to my mind, is not borne out by the language or meaning of the statute.

Neither should this last-mentioned sum be deducted in arriving at th'd value of the “entire estate” for the purpose of computing the “entire tax which the said estate would have been subject to,” &c.

The assessment must be set aside and the tax reduced in accordance with the views herein expressed.


author: Gummeee, Chief-Justice.

text:
    Benjamin C. Garrett, administrator, v. Esperanza Mining Company et al.
    [Decided November 14th, 1921.]
    A broker who had a contract to sell the mining property of a corporation for a stated commission to be paid by the corporation, and who procured a purchaser, which acquired the property by purchasing all the stock of the corporation, has no equitable right to require the purchaser to pay the commission after the vendor’s failure to do so, in the absence of any agreement to that effect by the purchaser, merely because the vendor has parted with all its property so that it cannot be forced to pay the commission.
    On appeal from a decree of tbe court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in &1 N. J. Eq. 168.

      Mr. J. T-F. Rufus Besson and Mr. Maximilian T. Rosenberg, for the appellant.

      Messrs. Collins & Corbin and Mr. Louis Marshall (of the New York bar), for the respondents.
   The opinion of the court was delivered by

Gummeee, Chief-Justice.

The bill of complaint in this cause was filed by one Harris, who died pendente lite. Upon his death his administrator, the present appellant, was substituted in his place. By it the complainant seeks to recover from the defendants the Esperanza Mining Company and the Guggenheim Exploration Company, or one of them, the sum of $202,500, alleged to have been earned as a commission by one Barnar, a mining broker, in bringing about the sale to them for $2,025,000 of the mining property of a Mexican corporation known as the Compania Minera la Esperanza y Anexes, and hereafter called the Mexican company. Prior to the filing of the bill Barnar assigned his claim to this commission to Harris, and it is for the purpose of enforcing Barnar’s alleged rights that the bill is filed.

The case set out in the bill and attempted to be proved by the complainant was that Barnar was employed as a broker by the Mexican company to obtain a purchaser for the company’s property ; that the employment was under a written contract, by the terms of which he was to receive a commission of ten per cent, in case he was successful in bringing about a sale; that thereupon Barnar, acting as broker, for the Mexican company, entered into negotiations with the Guggenheim Exploration Company, the purpose of which was to bring about the purchase by that corporation of the Mexican company's property; that as a result of the negotiations the Guggenheim company caused an investigation to be made into the character of the Mexican company’s property for the purpose of ascertaining its value and the desirability of acquiring it; that after completing this investigation it concluded to purchase the property, and did so through the instrumentality of a New Jersey corporation which it caused to be organized for the purpose, and known as- the Esperanza Mining Company; that this latter company made the purchase, not directly, but through the acquisition of the stock of the Mexican company by exchanging therefor its own stock, share for share, the value of the stock so exchanged being $2,025,000; that as a result of this transaction the possession and control of the Mexican company’s property passed into the hands of this New Jersey corporation, which also became the equitable owner thereof through its holding of the stock; and, finally, that the Mexican company defaulted in the payment of the commission which it had obligated itself to pay.

The theory upon which the bill is filed, as stated in the brief of appellant’s counsel, is, that the Mexican company having parted with its property to the Esperanza Mining Company, so that it has no property which can be reached by the complainant, the Esperanza Mining Company, the present owner of the property, having taken title with notice of the claim of Barnar, has become liable to pay this debt of the Mexican company to the extent of the property acquired by it; and that it holds the same charged with a trust in favor of the complainant as Barnar’s assignee.

In the court of chancery a large amount of testimony was taken, the purpose of which was to show whether or not Barnar was the producing cause of the sale which was actually consummated; and, after a careful consideration and analysis of it, the learned vice-chancellor concluded that the purchase had been brought about through agencies with which Barnar was in no way connected, and that, therefore, he had not earned the commission which the complainant seeks to recover in this litigation. In the view of the case which we take we do not find it necessary to consider and weigh the testimony. The claim of Barnar to the commission must rest fundamentally upon the proposition that the sale as consummated was brought about through his efforts; for it is only upon the theory that a broker is the producing cause of the sale and purchase that he is entitled to recover commissions agreed by the vendor to be paid to him for bringing it about.

For the purpose of -our decision, we assume, contrary to the finding of the vice-chancellor, that Barnar was the producing cause of the sale and purchase, and that, therefore, he had earned his commission. But, this fact being assumed, it is difficult for us to understand upon what theory lie can compel the very parties whom he induced to purchase the property at an agreed-upon price to pay ten per cent, in excess of that sum merely because the vendor, who contracted to pay his commission, has failed to do so, and, by parting with the title and control of the very property which was the subject-matter of the negotiations, rendered itself unable to meet that obligation. So far as we are aware, it has never before been suggested that a broker who has been employed ty the owner of the property to obtain a purchaser therefor, under an agreement that, in ease the broker produces a purchaser able and willing to bu3r at the vendor’s figure, the latter will pay a stipulated commission, can hold the purchaser responsible for the performance of the vendor’s contract in that regard in case the latter defaults in the payment of the commission, and, b3r combing the very property which was the subject-matter of the negotiations, divests himself of assets to which the broker could otherwise look for his compensation. The object of the broker is to produce a satisfactory purchaser, able and willing to pay the price at.which the vendor has agreed to sell, and, when he has succeeded in doing this, the purchaser is entitled to the bargain which he has been induced by the broker to make — that is, to have the property conveyed to him upon the payment of the agreed-upon price; and when he has done this and has received a conveyance, neither the vendor nor the broker has any legal or equitable right to insist that the purchaser shall pay in addition to the purchase price such commissions as the vendor has agreed to pay to the broker.

We hold, therefore, that when a broker proves that he has induced the purchaser to acquire the property of his principal by paying the agreed-upon price, he thereby demonstrates that he has no claim upon the purchaser for the payment of the commission which the vendor has agreed to pay, unless the purchaser himself has contracted to pay this commission in case of the default of the vendor to do so; and that, consequent^, the purchaser takes the property free from any trust imposed upon it for the benefit of the broker to the extent of the latter’s unpaid commissions.

The decree below will be affirmed.

For affirmance — The Chief-Justice, Swayze, Trencmard, Parker, Bergen, Minturn, Kalisci-i, Black, White, I-Tep-PENHEIMER, WILLIAMS, GARDNER, AOKERSON, VAN P)US-KIRK — 14.

For reversal — None.


author: Teenci-iakd, J.

text:
    Marie E. Ziesel, complainant and respondent, v. William Ziesel, defendant and appellant.
    [Submitted July llth, 1921.
    Decided November 14th, 1921.]
    1. A father, unless his parental authority has been taken away by the courts, is the one to decide the extent of the education of his child, beyond what is required and provided by the, school system of the state, and is under no legal duty to send his son to a boarding school, no matter what his financial circumstances may be.
    2. Where ijlie father and mother are divorced, and the custody, maintenance and education of the son have been committed by the court of chancery to the mother, and where the father’s annual net income is only $4,500, an order requiring him, against his objection, to pay to the mother $520 annually for the support and maintenance of such sixteen-year-old son, and $9S0 annually for his board and tuition in a boarding school, is excessive, and will be reversed, in so far as it represents expenses of education in a boarding school rather than in a public" high school, in view of the fact that the father believes, with some showing of reason, that attendance at a public high school is adequate and preferable for his son for present purposes, and in view of the further fact that the father has a second wife and daughter to support.

      On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, who delivered orally the following opinion:

      “1 am a little in doubt. It seems to me that an allowance of $1,500 a year, under all the circumstances, would not be very far from right. That ought to be sufficient to provide for the board of the boy and a fairly liberal expenditure for his education. If $10 a week were allowed for the support of the boy it would be $520, and then if $800 were allowed for the education in addition it would be a total of $1,320, which would be only a little less than $1,500. Eight hundred dollars is cutting down education to a pretty small amount, as charges are made at this time by must colleges, and I do not believe there is any doubt that Dr. Ziesel can afford to pay $1,500 without crippling him. 1 think that the net income of the doctor is not far from $4,500. I think this item of $2,400 for money borrowed could be excluded from the gross receipts, and in like manner the item of $1,847.29 for repairs and alterations could be excluded from the expenditures, which would leave him, approximately, the amount I stated, $4,500. With that and the expenses he must bear, I should think $1,500 for the support and education of the son would be reasonable. It may not be as much as would be desirable, and it may be more than the doctor cares to pay, but it would not be far from right. In making expenditures for the boy’s education the doctor is building a monument for himself that is more desirable even than the pursuits in scientific investigation that he is following; however commendable that research may be, there can be nothing in the nature of a legally-imposed duty — and should be a corresponding pleasure — greater than that of the support of your own issue, and that word 'support’ should, in all appropriate circumstances, include appropriate education. I think the doctor, himself, on mature reflection touching the duties of a parent to his offspring, would be inclined to concede that $1,500 a year allowance is not too much. The income of his wife — Ms first wife — is limited; she might not have anything left after her own year’s expenditures .are made. I do not think $1,500 is an unreasonable -amount. I will make the allowance. I think it was reasonable to employ an accountant by counsel for complainant, and to make the investigation which was made, and that the expense thus incurred should be paid by the defendant, as well as the master’s costs, o£ course. And I think $75 counsel fee will be proper.”

      Mr. Lewis Starr, for the appellant.

      Messrs. Leap, Sltarpless & Way, for the respondent.
   The opinion of the court was delivered by

Teenci-iakd, J.

This, as will be seen, is an appeal from an •order of the court of chancery requiring the appellant to pay for the support, maintenance and education of his minor son, Edward Ziesel.

The facts and circumstances giving rise to the order under review are these:

The parties to the action, Dr. and Mrs. Ziesel, were married January 27th, 1889. Three children were born, of whom Edward, the one concerned here, is the youngest. They were divorced in Pennsylvania December 21st, 1914. No provision was made in that decree for the support and maintenance of Edward. Apparently, the parties removed to Wildwood, New Jersey, and in the early part of 1916 Mrs. Ziesel filed a bill m the court of chancery for the support of Edward, the minor child, and no question was raised as to the jurisdiction of the court. On July 10th of that year a decree was entered in that proceeding awarding the care, custody and education of Edward to Mrs. Ziesel, and requiring Dr. Ziesel to pay $5 per week to Mrs. Ziesel for his support, maintenance and education, and leave was granted by the decree to either party to apply thereafter for such variance or modification thereof as changing circumstances might render equitable and just. In November, 1920, Mrs. Ziesel petitioned for a greater allowance, saying that Edward had attained the age of sixteen years and was a “second year high school student;” that his father’s income was from $10,000 to $15,000 per year; that she desired to send the boy to a preparatory school, which she named, where the board and tuition was $1,000 per year. ' It was on that petition that the court of chancery made the order now under review requiring Dr. Ziesel to pay to Mrs. Ziesel for the support and maintenance of Edward $10 per week, arid an additional sum of $980 annually for his education.

We are of the opinion that such order cannot be sustained.

It appears that Dr. Ziesel is a dentist, having offices in Wild-wood, in this state, and in Philadelphia, Pennsylvania; that he is doing much research work in connection with his profession; that prior to the divorce he settled upon Mrs. Ziesel approximately $40,000 of property in Wildwood, from which she has an income of about $2,600 a year, and that the other two children of the marriage are of age and self-supporting. It further appears that after the parties were divorced the doctor married again and has one child by that marriage; and, while, he is not living with his second wife, he is obliged to support her and his daughter by that marriage.

The learned vice-chancellor found as a fact, and we think rightly, that the annual net income of Dr. Ziesel was approximately $4,500, out of which, of course, he had to pay for the support of his second wife and his daughter, and also such sum as may be awarded in this proceeding for the support and education of his son Edward.

Now, Dr. Ziesel seems to find no fault with the order so far as it relates to support and maintenance. His objection is to that part of the order relating to allowance for education, and his objection really is to the expense of- board and tuition at a boarding school, his contention being that attendance at a high school is adequate and preferable for his son for present purposes. The doctor testifies that he has always insisted upon a public school education for his children; that “this preparatory school [selected by the mother] does not rank as high as the average public high school,” and in this connection it is to be noted that he further testifies that Edward had “voluntarily” left another boarding school in which; quite recently, he had been placed by his mother, but whether with or without the consent of his mother does not appear.

It is not questioned that the court of chancery has power to make a proper order touching the education of the son such as “the circumstances of the parties and the nature of the case” shall render “fit, reasonable and just.” Comp. Stat. p. 2035 § 25.

The order under review seems to be predicated upon some legal duty of a father to send his son to a boarding school if he can do so without “crippling him,” and this the vice-chancellor thought the present order would not do, and hence he required an expenditure of one-third of the father’s income for the support and education of this one son, made up in large part of boarding school expenses.

But a father is under no legal duty to- send his son to a boarding school, no matter what his financial circumstances may be. True, many a father does it at a sacrifice to himself and other members of his family, but he does so voluntarily. That may be a commendable thing to do. No doubt the vice-chancellor bad .such instances in mind. But after all, if a father sees fit to content himself with a common public school and high school educa-tion for his son, the law ordinarily will» require no more of him. If Edward, the son, were living with his father instead of the mother, no court would compel him to send the son to any boarding school or even a private day school. He would be compelled by statute (Comp. Stat. p. 4775 § 153), and those administering it, to educate the child, but the state provides free schools, where all its sons and daughters may be thus educated and the law ordinarily requires no more than this. Á father, unless his parental authority has been taken away by the courts, is the one to decide the extent of the education of his child, beyond what is provided by the school system of the state. Streitwolf v. Streitwolf, 58 N. J. Eq. 570. If the father were dead and the minor son had property, his education would be paid for out of his income under the direction of the court of chancery, on a basis of what was proper and customary for one in his station in life: but that is not this case.

A case somewhat in point is that of Streitwolf v. Streitwolf, supra. There, in a. suit brought by the wife for a limited divorce on the ground of extreme cruelty, alimony pendente lite was awarded her. She subsequently applied Tor additional alimony pendente lile, to enable her to meet the expenses for tuition and books, at a law school, of her son, then in his twentieth year, who lived with her, and was chiefly supported by her. .No- order had been made giving the custody of the. son to either, parent. The application was granted, against the objection of .the' husband, who testified that he thought -his son' unfitted for the law and wished him to go into business. On" appeal to this court it was held that the order giving' additional aliinon3r pendiente lite to enable the wife, against the judgment of her husband, -to secure for the son a professional education, should, be reversed.-

Of course, in the present case, it appears that, the father and mother were divorced, and that the custody5 maintenance and education of the son had been committed-by the court-t.o the mother. ■ But where,, as here, it appears-that-the'father’s-annual net income was only $4,500, we’ think, that an, order requiring him, against his objection,-to pay to the. mother $520 annually for the support and maintenance of- such sixteen-year-pld son, and. $980 annually for his board'and tuition in-a boarding school, is excessive, in so far as, it represents expenses for-education in a boarding- school rather than in -a- public high school, in view of the fa'ct that the father believes, with- some showing of reason, that attendance at a public high school' is adequate and preferable for his son for'present purposes, and in.view of the further fact that the father lias a second wife and daughter to. support.

The decree will be reversed and the record remitted to the court of chancery for further proceedings, in accordance with the views herein' expressed.

For wffwmm.ce — None.

For reversal — Ttie Chibe-Justice, Swayze, Trenciiard, Parker, Ber&en, Minturn, Kalisoit, Black, White, HepPENHElMEB, WILLIAMS, GARDNER, ACKERSON, VAN BüSKIRK —14. -


author: Parker, J.

text:
    Wilfred S. Dowling, petitioner-appellant, v. Theodora Dowling, defendant-respondent.
    [Submitted July 11th, 1921.
    Decided November 14th, 1921.]
    The rule applied in English v. .English, 27 N. J. Eq. 579, and Spence v. Spence, 7J¡ N. J. Eq. 786, held inapplicable to a case where petitioner’s petition is dismissed on the ground of res judicata.

    On appeal from a decree dismissing petition for divorce advised by Vice-Chancellor Fielder. 1

      Mr. Palmer Bra drier, for the''appellant. "
   The opinion of the court was delivered by

Parker, J.

Petitioner prayed a divorce on the grounds of adultery and desertion. The ease was heard by Vice-Chancellor Fielder, who filed written conclusions holding that neither' charge was satisfactorily made out on the evidence, 'and, accordingly, dismissed the petition. In that conclusion, after due examination of the evidence and appellant’s brief, the only one submitted, we concur, and for substantially' the same reasons that are given by the learned vice-chancellor. A recital of the facts would answer no useful purpose.

The respondent filed a cross-petition against her husband on the ground of constructive desertion; but, it appearing to the vice-chancellor that she had brought an earlier action for divorce on the ground of adultery, in which her petition had been dismissed, and that at the time of filing her petition in that suit her right to a divorce for desertion, if any, was complete, the vice-chancellor held that that claim should have been made in her former suit and that she was barred from making it in the present one. But he seems to have considered, on the authority of Spence v. Spence, 74 N. J. Eq. 786, a chancery decision based on English v. English, 27 N. J. Eq. 579, in this court, that the dismissal of her petition should be “without prejudice, however, to any future action she may desire to institute against her husband for divorce on the ground of desertion.” This clause, contained in his conclusions, was inserted in the decree, and appellant claims that he is aggrieved by it, in. that it largely nullifies the dismissal of the wife’s cross-petition by permitting her to apply again at any time without restriction of the grounds of such application. This point seems to be well taken. It is true that in the cited cases the dismissal was without prejudice, but this was to guard against the very rule of res judicata applied by the learned vice-chancellor in the case at bar. It seems unlikely that he intended to dismiss a petition on such a ground and at the same time to reserve the right to file a similar one based on the same facts a.t any time in the future. The expressed object, in English v. English and Spence v. Spence was, while holding the facts then submitted insufficient, to- reserve the right of using them in connection with other facts which may afford the ground of a subsequent suit. This rule we deem inapplicable to the present case. The wife, on September 23d, 1916, when she sued on the ground of adultery, either had a cause of divorce for desertion or she had not; assuming that she had, she did not then assert it, and has properly been held barred from asserting it in the present action. Such cause, if any, is therefore finally disposed of. And for the very reason of res judicata invoked by the vice-chancellor, any matured cause of divorce which respondent could have embodied in her counter-claim in the present action should also be held barred; hut otherwise as to a cause that could not have been asserted in the present suit. The restrictive clause in the decree of dismissal of the counter-claim should consequently be modified to read: “Without prejudice, however, to any future action she may desire to institute -against her husband for divorce for any cause arising after the filing oE the cross-petition in this suit.”

The decree should be modified in this respect, and in all other respects will be affirmed.

For affirmance — The Ci-iiee-Justice, Swayze, Trench are, Parker, Bergen, Minturn, Kalisch, Black, White, HepPENHEIMER, WILLIAMS, GARDNER, AOKERSON, VAN BuSKIRK —14.

For reversal — None.


text:
    Fidelity Trust Company, assignee, &c., complainant, v. J. H. Halsey & Smith, Ltd., defendant.
    [Submitted July 11th, 1921.
    Decided November 14th, 1921.]
    1. Whether counsel to a receiver have a status to appeal from the award of a counsel fee as inadequate, gucere.

    2. An award of compensation to counsel of a receiver rests in the sound discretion of the court and is presumably correct, and such award will not be reversed on appeal unless there is a plain abuse of discretion.
    On appeal of Austen H. McGregor, receiver of J. H. Halsey & Smith, Ltd., and Hugh B. Eeed and Eobert D. Eeynolds, partners, counsel to said receiver, from an order advised by Vice-Chancellor Foster fixing the compensation of said counsel.

      Messrs: Reed & Reynolds, for the receiver and counsel.

      Messrs. Smith & Slingerland, for the receiver of T. P. Howell & Company, a creditor of defendant.
   The opinion of the court was delivered by

Parker, J.

’ The appeal attacks the award of the compensation awarded by the court to counsel to the receiver of J. H. Halsey & Smith, Ltd.,' as inadequate. The appellants are the receiver himself and Beed & Beynolds, his counsel. The order appealed from allowed the receiver for his total compensation $2,500 instead of $6,500, asked by him, and to the counsel $5,000 instead of $10,000, for which they, as said counsel, applied. Both the receiver and the counsel figure as appellants in the notice and petition of appeal.

We encounter an important difficulty at the outset, in the question whether said counsel have any standing as appellants. Are they legally "aggrieved” by the order in the sense intended by section 111 of the Chancery act (Comp. Stat. p. 450) ? We know of no reported case in this state in which counsel have been recognized as appellants in a case of this kind, although awards of counsel fees have been considered on appeal on the ground that they were excessive. Hitchcock v. American Pipe and Construction Co., 90 N. J. Eq. 576. In other jurisdictions, appeals bjr counsel have sometimes been considered. Stone v. Omaha Fire Insurance Co. (appeal of Morsman, Nebraska), 86 N. W. Rep. 468; Myers v. Mutual Life Insurance Co. (appeal of Bartholomew, Indiana), 75 N. E. Rep. 31; Anderson v. Steger (Ill.), 50 N. E. Rep. 665, was a case where the attorney in a divorce action appealed from the legal ruling that he was not entitled to any counsel fee.

Passing this point, which was not argued or raised by counsel, and passing also the question whether the receiver is himself aggrieved by a supposedly inadequate allowance to his counsel, we have considered the matter on the merits. The vice-chancellor said that he did not intend to be regarded as holding that the amount asked was unreasonable, but that he considered the award made by him under the circumstances was reasonable. The inconsistency is more apparent than real. Both amounts may be reasonable, or any intermediate amount. The fundamental rule is that the amount lies in the discretion of the court, having regard to all the circumstances; that the action of the court is presumptively correct, and will be upheld if it does not plainly appear that there has been an abuse of discretion. 34 Cyc. 466; Trustees v. Greenough, 105 U. S. 527; Stuart v. Boulware, 133 U. S. 78. There can be little doubt that counsel performed much efficient service with good results, and it may well lie that a larger allowance would have been fully justified, but, on the other hand, counsel are fully aware that in serving an officer of the court they ■ must look to the discretion of the court for their reward, and that in a large proportion of administration suits the fees cannot measure up to what a solvent client should pay. We are quite unable to say that there was any abuse of discretion in this case, and the order brought up will therefore be affirmed.

For affirmance — The Chief-Justice, Sway.ze, Trench ard, Parker, Bergen, Minturn, Iyalisci-i, Black, White, HepPENHEIMER, WILLIAMS, GARDNER, AcKEKSON, VAN BüSKIRK —11,

For reversal — None.


author: .Bergen, J.

text:
    William Gierth, complainant-respondent, v. Fidelity Trust Company et al., defendants-appellants.
    [Argued June 23d, 1921.
    Decided November 14th, 1921.]
    1. Complainant had a large deposit in a trust company of which he lost all recollection resulting from a mental condition caused by illness, and an officer, or head of a department of the trust company having charge of depositor’s accounts, knowing of complainant’s abnormal mental condition, and concealing his relation to the trust company, induced complainant to contract to, and pay him a large part of the deposit, nearly one-half, to reveal its location. When the depositor learned the facts he filed a bill in equity to compel the party to restore the fund. — Held, that under the circumstances the defendant had by superior knowledge and artful silence obtained an unfair advantage over the complainant whose mentality was, to the knowledge of the defendant, abnormal, and that defendant’s acts were constructively fraudulent; that equity has power to give affirmative relief from such an exorbitant and unconscionable bargain, and compel restitution.

      2. Under recent statutes and rules governing the court of chancery, mul'tiiariousness, as an objection to a pleading, has been substantially done away with.
    On appeal from an order of the court of chancery.

      Mr. William A. Brooks and/.Messrs. Pomerehne ,& Laible, for the complainant-respondent.

      Messrs. Lumi, Tamblyn & Colyer, for the defendants-appellants.
   The opinion of the court was delivered by

.Bergen, J.

This is an appeal from an order made by the chancellor refusing to dismiss the complainant’s bill of complaint, and the only matters argued are that the hill does not disclose sufficient facts to sustain it, and that it is multifarious. The bill avers that complainant had deposited to his credit with a trust company, in 1912, $22,505, which remained in that condition until 1916, when complainant was stricken with an illness which caused a total loss of memory of this deposit; that in 1920 Ealph M. Kutz represented to the complainant that he had knowledge that the latter had over $25,000 on deposit in a certain financial institution and offered to reveal that knowledge if he would agree to pay him $10,199.53, and that such a bargain was made, whereupon Kutz induced the complainant to draw three checks on the Fidelity Trust Company of Newark, New Jersey, against this deposit for the sum agreed on, and pass them over to Kutz, who collected the money and deposited $8,000 of it to the order of Edith K. Evan, a relative of his, with, a banking or brokerage company doing business as C. I. Hudson & Company; that Kutz concealed, from the complainant the fact that he was in the service of the Fidelity Trust Company as chief accountant in charge of the accounts of depositors, and that when complainant discovered this, within three days after making the contract with Kutz, he went to the Fidelity Trust Company and informed it of what had happened and thereafter the trust company refused to honor any further checks drawn by complainant, who then filed his bill of complaint making the trust company, C. I. Hudson & Company, Kutz and Edith K. Eyan parties, praying that an account be taken of the amount due from each of the defendants to him, and that it be decreed that tlie moneys which complainant alleges were illegally taken and withheld. from him be restored. A motion was made on behalf of Kutz and Edith K. Eyan to dismiss the bill of complaint, which was denied, from which action of the court Kutz and Edith K. Eyan have appealed.' In dealing with this motion we must treat it as a demurrer, and if the facts averred state an equitable case for relief against appellants, the order of the chancellor should be affirmed.

The inferences to be drawn from the facts charged are that when the complainant made this agreement and paid the money his mind was in an abnormal condition, which is to be inferred from the fact that he had absolutely, because of his illness, lost all memory of so large a deposit in a financial institution located in the city where he lived, without any reason other than his illness ; that Kutz was either an officer or the head of a department in the Fidelity Trust Company which gave him knowledge of the deposit, and also that he knew of the complainant’s illness and loss of memory, otherwise he could not have accomplished his scheme to secure nearty one-half of the deposit; that he concealed from the complainant all knowledge of his connection with the financial institution where the money was lodged, and declined to reveal it until the complainant had agreed to pay him nearly one-half of the amount on deposit. It is not pretended that the trust company would have had any right to malee any such bargain, and the only question remaining is whether one of its officers who obtained such knowledge because of his confidential relations with the trust company, and the account of this depositor, can avail himself of the bargain which he made with the depositor. That such conduct by a bank official holding a semi-confidential position to a depositor is contrary to fair dealing and good morals cannot be doubted. If the conduct of Kutz was not an actual fraud it is certainty, what is denominated, a constructive fraud.

That learned jurist, Chief-Justice Beasley, said, in Erie Railroad, Co. v. Delaware and Western and Morris and Essex Railroad Co., 21 N. J. Eq. 283, that equity "will never lend its active, aid to a party who, by superior knowledge and artful silence, has gained an unfair advantage over another. Such triumphs are deemed unconscionable and are opposed to the general principles of law.” That the defendant Kutz, by superior knowledge and artful silence, gained an unfair advantage over the complainant cannot be rightfully disputed. Occupying the position he did in relation to the complainant’s account with the Fidelity Trust Company, if he had been upright in his dealings with complainant, he would have informed the customer of the situation and not have taken advantage of his superior knowledge and of the abnormal condition of complainant’s mental^, clue to his illness, which must have been known to Kutz when he induced the complainant to make this exorbitant and unconscionable bargain. Such conduct justifies the implication of fraud and authorizes a court of conscience to set it aside. Hyer v. Little, 20 N. J. Eq. 448, 460 Fraud in equity includes all willful or intentional acts or concealments by which an undue or unconscionable advantage over another is obtained. Pom. Eq. Jur. § 873. Under the facts stated in the bill the conduct of the defendant Kutz was a fraud on the complainant, for, if he told him the facts, namely,' that he was the officer of the trust company in charge of the complainant’s account, and that he knew as such officer that the complainant had that amount of money to his credit with the trust company which he had forgotten, it is not to be supposed that -the complainant would have made any such unconscionable agree-, ment. That equity has power to give affirmative relief in a proper case in order to satisfy its conscience and effectuate justice cannot be doubted when necessary to accomplish that result, provided the court has jurisdiction of the parties and the subject-matter. So far as Edith K. Ryan is concerned, she is a mere trustee for Kutz, and was used by him as a means of secreting the money, or to render it niore difficult for the complainant to follow it, and she has no greater rights than he has.

In answer to the objection that the bill is multifarious, it is only necessary to say that the claim set up is against the fund originally in the hands of the trust company, part of which is yet in its hands and part in the hands of the other defendants, and all of. the holders of said fund may be made parties under the statutory rule of the court of chancery adopted in 1915 (P. L. 1915 p. 187), which provides:

“Any person may be made a defendant who either jointly, severally or in the alternative is alleged to have or claim any interest in a controversy, or in any part thereof, adverse to the complainant; or who it 'is necessary or proper to make a party for the complete determination or settlement of any question involved therein.”

This rule applies to the present controversy, and, therefore, the objection referred to has nothing to rest on. In fact, it is hardly to he doubted that under the statute and rules now governing' the court of chancery the old-time objection of multifariousness. has been substantially done away with.

The order appealed from is affirmed, with costs.

For affirmance — Ti-ie Ci-xiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, White, HepPENI-IEIMER, WILLIAMS, VAN BuSKIRK-12.

For reversal — None.


author: Bergen, J.

text:
    Anna M. Hurley, appellant, v. David Pottash et al., respondents.
    [Argued June 23d, 1921.
    Decided November 14th, 1921.]
    At a sheriff’s sale in the execution of a decree of foreclosure of a mortgage, which was regular in every particular, the complainant’s decree being about $14,250, the holder of the decree bid $7,200, and being the highest bidder the property was struck off to him for that sum. Subsequent to the sale, another person offered to bid on a resale $15,000. and confirmation of the sale was refused. — Held, that a judicial sale made without -irregularity or fraud, not affected by accident or mistake, will not be set aside for mere -inadequacy of price, and that under the circumstances stated the inadequacy, if any, was not so gross as to raise an inference of fraud, the subsequent bid offered being but a trifling sum over the amount of complainant’s decree, and where a suit for any deficiency between the decree and price bid- opens the sale and allows the mortgagor a right to redeem.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Learning.

      Messrs. Carr & Carroll, for the appellant.

      Mr. Willis T. Porch• and Mr. David O. Watkins, for the respondents.
   The opinion of the court was delivered by

Bergen, J.

This is an appeal from an order of Vice-Chancellor Learning refusing confirmation of a foreclosure sale a-nd directing a resale of the mortgaged premises. The facts appearing in the record are that the complainant held a mortgage given by the defendant on a portion of his real estate on which, with interest, there was due $14,250. There ivas als-o a second mortgage given to another person on the premises for $20,000 which had been assigned as collateral security to the Integrity Trust Company. The sheriff of Gloucester county, as directed by the execution, issued according to the decree of foreclosure, sold the property to one Oscar B. Redrow, the owner of the decree, for $7,200, and reported to the chancellor the sale as required by statute, and it is this sale which the vice-chancellor refused to confirm. The purchaser assigned his bid, and the mortgagee assigned the mortgage and decree to the New Jersey Housing and Contracting Company, which paid the complainant the full amount due on the decree.

During the foreclosure proceedings the mortgagor was adjudicated a bankrupt, and the complainant, agreed to, and did, consent to have the sheriff acljonrn the sale in order that the trustee in bankruptcy might offer the property at public sale, which he did, but no price could be obtained satisfactory to the bankruptcy court, and thereupon the sheriff sold' it to the highest bidder. There were a number of persons attending the sale, among them being the representative of the creditors of the mortgagor who bid for the property. After the property was struck off to Eeclrow, tlie trustee in bankruptcy opposed the confirmation of the sale, and to induce a refusal produced a proposed bidder who offered to bid at a resale $15,000 which would cover the complainant’s decree. We are of opinion that under these circumstances confirmation should not have been refused upon the ground of inadequacy of price unless it was so gross as to justify an inference of fraud. In Morrissee v. Inglis, 46 N. J. Eq. 306, this court laid down the rule that “judicial sales made without irregularity or fraud and not affected by accident or mistake, will not be set aside for mere inadequacy of price. * * * Nothing would more evidently tend to discourage and prevent bidding than a judicial determination that such a bidder may be deprived of the advantage of his accepted bid, whenever any person is willing to give a larger price.” To the same effect is Hoffman v. Godfrey, 79 N. J. Eq. 617. It is not contended that there was any irregularity or fraud, nor is there any proof of any accident or mistake sufficient to abrogate the rule thus established by this court. It is, however, argued in support of the vice-chancellor’s order that the trustee in bankruptcy now has an offer of $35,000 for the property, and that the inadequacy is so great as to shock the conscience of the court. There is no proof of the actual value of the mortgaged premises, but we are asked to infer it from the offer of $35,000, which would be sufficient to satisfy the complainant’s as well as the second mortgage. We cannot infer from the offer, that the value of the mortgaged premises is $35,000, for the offer includes all the real estate of the bankrupt, some of which was not embraced in complainant’s mortgage, as well as all goods, merchandise, machinery, raw and finished products and effects, and was made subject to the condition that the real and personal property for which the offer was made be free and clear of any liens and encumbrances except that tlie lien of the Integrity Trust Company is to remain on the property and to be applied on account of the purchase price. This offer is not for the mortgaged premises but for all the property of the bankrupt, and of the Clayton Shoddy and Cotton Mills. It is not a cash offer and a resale could not be ordered on such terms. The offer is based upon an assumed value of $18,-000 for .the mortgaged premises, which is about $3,000 in excess of complainant’s mortgage, and that value is only estimated. The only unqualified offer to bid at a resale of the mortgaged premises is about $750 beyond the amount due on complainant’s mortgage, and as he was the purchaser, he, in effect, took the premises to protect his debt, and, under such circumstances, the inadequacy in price was not so gross as to permit an inference of fraud.

It is next urged in support of the order appealed from that when the property was offered for sale it. was announced by complainant and the sheriff that no machinery was to be included in the sale. The affidavits of three persons who were present at the sale support that statement. This is denied under oath by the sheriff, the solicitor, and by four other persons who were present at the sale and interested in it, and they all testify that no such statement was made, and the preponderance of the evidence sustains this denial. The refusal to confirm the sale seems to be entirely in the interest of the second mortgagee, who had ample opportunity to attend the sale and bid the amount of complainant’s decree, because the amount of the two mortgages equals the offer to the trustee in bankruptcy and he will not realize one penny for the other creditors from the offer, which includes much property not subject to the mortgages. In addition to this it does not appear what the interest of the Integrity Trust Company was subject to which the intended offer was made, but, assuming that it was the full amount of the second mortgage, the holder of it had full opportunity to attend the sale and bid.

Tt is also urged that the housing company, the present holder of the decree, lias threatened to present a claim to the trustee in bankruptcy for the deficiency between the amount bid and the complainant’s decree. This is not pertinent to the present controversy, but if it should he presented it would have to be made within six mouths after the sale under our statute requiring the suit to be brought within that period for a deficiency when the same debt is secured by bond and mortgage. P. L. 1881 p. 184 If such a claim should be presented within the required time a debatable question would then arise whether, under Smith v. Crater, 43 N. J. Eq. 636“, it would not be the bringing of a suit on the bond, and whether if the claim should be allowed in bankruptcy it would not be an adjudication amounting to a judgment, the rendering of which would allow the mortgagor, or his representative, the trustee in bankruptcy, to come in within six months and redeem the property, which would, of course, accomplish all that the objectors to the confirmation would be entitled to, but that question is not before us. Of course, the quantity of machinery which the mortgage sale passed cannot be determined in this case, for it may well be that no machinery of value passed by the sale as fixtures. Nor are we concerned with the threatened proof of claim in the bankruptcy court for the deficiency, for that may never materialize.

The order refusing confirmation and directing a resale is reversed and the record remitted to the court of chancery that the ' sheriff's sale be confirmed.

For affirmance — Black, Williams — 2:

For reversal — The Chief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Wi-itte, Heppeniieimer, Yan Buskirk — 10.


author: Kalisch, J.

text:
    Ralph B. Gable, complainant-appellant, v. Clara J. English and Clara J. English, executrix of O. H. Adams, deceased, defendant-respondent.
    [Submitted June term, 1921.
    Decided November 14th, 1921.]
    1. Where a contract is sought to be established through the medium of letters between a prospective seller and a prospective buyer of real estate, it must clearly and unequivocally appear from the correspondence that the offer to sell, with the terms thereof, were unconditionally accepted, in order to constitute a valid contract enforceable by a bill for specific performance.
    2. Where the vendor, in a letter to the purchaser, offered to sell him the land for a specified amount upon specifications, and thereafter gave the purchaser at his request an option to buy the land within a specified period, the purchaser’s letters, written during such period, asking the vendor to send him for his inspection an agreement between the vendor and a third party concerning an alley, and stating that he will be ready at the appointed time to make a payment on the purchase of the land, but would, nevertheless, like to go over the agreement in question very carefully — Held, not. the unqualified acceptance required to create a contract which may be specifically enforced.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Edwin F. Miller, for the appellant.

      Mr. Lewis Siarr, for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

Where a contract is sought to be established through the medium of letters between a prospective seller and a prospective buyer of real property, it must clearly and unequivocally appear from such correspondence that tire offer to sell with the terms thereof were unconditionally accepted by the prospective purchaser, in order to constitute a valid contract which may be enforced by a bill for specific performance in .a court of equity. Potts v. Whitehead, 23 N. J. Eq. 512; Runyon v. Wilkinson, Gaddis & Co., 57 N. J. Law 420; Empire Rubber Mfg. Co. v. Morris, 73 N. J. Law 602.

In the present case the complainant filed a bill for specific performance in the court below, praying that the defendant be specifically decreed to convey' to the complainant certain real property situate in the borough of Vineland. The basic fabric of the bill is composed of certain letters which passed between the parties to this controversy, the complainant insisting that ■such correspondence constituted a valid contract between himself and the defendant, obligating her to convey the property to him.

The learned vice-chancellor in an oral deliverance held that there was no unequivocal acceptance by complainant of the defendant’s offer contained in her letter prior to the time that she withdrew such offer, and hence the bill was dismissed.

We think the result reached by the vice-chancellor was warranted by the proofs in the cause.

The only mooted question as presented to us by counsel of the respective litigants is, Was there an rmqualified acceptance of the terms of sale by the complainant? . .

The solution of this query must be determined by the offer to sell, made by the defendant in her letter to complainant of January 30th, 1919, in which she states the offer to sell in these terms: “I will sell to you for $5,000, $1,000 cash, and the balance of $4,000 on a mortgage for three years at 5 per cent. If renewal is desired at the end of the three j^ears, it will be a-t 6 per cent.and the final letter of July 22d, 1919, written to the defendant by complainant, which letter reads:

“I wish you would be good enough to send me, for inspection, the agreement between you and Mr. Tower concerning the alley between 542 and the post office building. I shall be ready at the appointed time to make payment on the purchase of 542 Landis avenue, but I should, nevertheless, like to go over the agreement in question very carefully.”

Between the dates of the two letters above quoted, the complainant, on February 19th, 1919, wrote to defendant requesting an option on the property for four or five months in order to enable the former to sell a property which he owned, and also asked for information as to the amount of rent yielded by defendant’s building. Five days later the defendant by letter furnished the complainant with the information requested and stated: “I am willing to give you an option on the building until August first [1919] ; or, if you decide before this date, it will be agreeable to me.” Thus, for a period of four months the complainant was afforded an opportunity to decide whether he would be willing to purchase the defendant’s property on the terms contained in her offer to sell. If the complainant had come to the decision to purchase the property on the defendant’s terms, his purpose could have been accomplished by writing “I accept your offer.” This he did not do. ITis letter suggests a studied effort to prevent binding himself to take the property on the terms of the offer to sell. While it is true that he writes “I shall be ready at the appointed time to make a payment on the purchase of 542 Landis avenue,” he precedes this statement by asking for inspection the agreement between the defendant and a Mr. Tower concerning the alley between 542 and the post office building, and follows the offer to make a payment by saying that, nevertheless, he should like to go over the agreement very carefully. It is difficult to comprehend of what avail it would have been to the complainant to go over the agreement very carefully, unless it was to ascertain whether there was any burden on the property, and if so to withhold his acceptance. Moreover, he does not say in his letter that he will be ready to pay at the appointed time $1,000 in cash, but that he will make a payment on the purchase of the property, which, obviously, is too indefinite a ¡n-omise to permit us to say that both parties will be presumed to have understood that the payment of $1,000, neither more nor less, was intended. But even if such a presumption is fairly warranted, it falls short of an acceptance by the complainant of the defendant’s terms of sale, as contained in her offer, for there is an utter absence in the complainant’s letter of any assent by him to the terms of the defendant’s offer, namely, to pay the sum of $5,000 for the property, and to give defendant a purchase-money mortgage, in the sum of $4,000, at five per cent., payable in three years, and if a renewal is desired at the expiration of the three years, the complainant to pay six per cent. Now, as it was essential in order to establish the making of a contract between the parties that there would be proof of an unequivocal acceptance by the complainant of all the terms contained in the defendant’s offer to sell, the failure of such proof could properly lead to no other result than a dismissal of the complainant’s bill.

The decree is affirmed, with costs.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, ' Minturn, Ivaliscit, Black, White, HepPENHEIMER, WILLIAMS, GARDNER, ÁCKERSON, VAN BuSKIRIC —14.

For reversal — None.


author: Williams, J.

text:
    Andrew J. Cartan, petitioner-appellant, v. Sarah Cartan, defendant-appellee, and Patrick J. Devlin, intervening defendant.
    [Submitted July 11th, 1921.
    Decided November 14th, 1921.]
    1. To justify a decree for divorce on the ground of adultery, the evidence of the defendant’s guilt must be clear and satisfactory. A full and explicit denial of the charge by the defendant, and her alleged partieeps criminis, should be regarded as decisive in a case of doubt.
    2. Letters written to a person, though evidence against him for some purposes, are not evidence of the truth of their contents unless besides the mere possession of the letters there is testimony from which acquiescence in the truth of their contents can be inferred.

      3. Where a husband in a petition for divorce on the ground of adultery charges his wife with separate acts of adultery on one thousand eight hundred and five consecutive days, and upon demand for a bill of particulars cuts that down to eight, mostly indefinite, and upon the hearing to one alone, when practically all that time he and his wife had been living together as an ordinarily happy married couple, such action is. to say the least, censurable.
    On appeal from the court of chancery.

      Messrs. Wilson & Smock, for the petitioner-appellant.

      Messrs. John, 8. Applegate & Son, for the defendant-appellee.

      Mr. Jacob B. Lefferls and Mr. Merrill Lane, for the intervening defendant. -
   The opinion of the court was delivered by

Williams, J.

This is an appeal from a decree of the court of chancery of New Jersey advised by Hon. John E. Foster, vice-chancellor, denying an absolute divorce on the ground of adultery sought by Andrew J. Cartan, petitioner, against his wife, Sarah Cartan, defendant.

The petition was filed December 13th, 1918, the answer of the defendant denying the charges of adultery not until June 18th, 1919, the delay being due to attempts on the part of the solicitors of the parties to effect a reconciliation.

The petition was dismissed in the court of chancery for failure of petitioner to sustain the truth of the allegations in his petition.,

The petitioner charges defendant committed adultery with Patrick J. Devlin “on the first clay of January, 1914, and on each day of each month of the said year 1914, and of the years 1915, 1916, 1917 and 1918, to the date of the verification hereof” (December 11th, 1918), “in the city of New York, at the borough of Matawan aforesaid, and at various places in the county of Monmouth and elsewhere in the State of New Jersey.”

A bill of particulars was demanded by tbe defendant and furnished April 21st, 1919, in which petitioner abandons the averments of his petition as to time and place of the adulterous acts, and in the place thereof specified one adulterous act committed by the parties in the city of New York, November 23 d, 1914. the precise place being unknown; two others committed in the borough of Matawan in the latter part of May or June, 1916, the precise dates being unknown, but the acts of adultery being committed in or near an outbuilding located in the back yard of petitioner’s home; also on two- other occasions in the summer or early fall of 1915, and on three other occasions in the spring of 1916, in or near said.outbuilding or other places on or near said premises.

The defendant, Patrick J. Devlin, filed Ms petition to intervene and was admitted as a party defendant October 6th, 1919, and filed his answer denying the charges of the petitioner. He also demanded a bill of particulars, which was furnished him October 22d, 1919. This bill is the same as the one furnished the defendant, Sarah Cartan, with the exception that as regards the occurrences in the latter part of May or June, 1916, there is added the following: “The nights aforesaid were Saturday nights. One of these nights the petitioner, with such information as he now has, believes to have been the night of May 27th, 1916.” There is also an additional charge at the residence of the petitioner in the forepart of March, 1916.

On the trial of the cause application was made on the part of the defendant, Sarah Cartan, to amend the answer filed by her, so as to include the defence of condonation — in that the petitioner condoned said supposed act of adultery in that with knowledge he continued matrimonial cohabitation with said defendant between May 1st, 1918, and September 1st, 1918,-at the house of the petitioner and defendant in the borough of Matawan, and that during such cohabitation and ever since the defendant has treated the petitioner with conjugal kindness. The amendment was allowed and filed December 17th, 1920.

The solicitors of the petitioner-appellant in their brief state that the issues under the pleadings and proof stand thus: “The petitioner charges adultery and the proof is directed especially to an offence which he says occurred on or about the 27th of May, 1916, in an outbuilding on the premises then owned and occupied by him and his family in the borough of Matawan. The wife and the alleged paramour stoutly deny this charge, and the wife, in addition, sets up as already indicated, the defence of condonation.”

And the vice-chancellor in his opinion says: “Notwithstanding these charges of almost daily acts of adultery, the issues presented by the proofs confine the controversy to a single act of adultery claimed to have been committed about May 27th, 1916, in the outbuilding mentioned in the pleadings and to the question of condonation.”

The petitioner might be justified in making the extravagant charge of - adultery daily from January 1st, 191b, to December 11th, 1918, if the defendant had left him and gone to live with the alleged paramour, and had lived with him as man and wife during that whole period; but we cannot conceive how a husband, can charge his wife with separate acts of adultery on one thousand eight hundred and five consecutive days, and, upon a demand for a bill of particulars, cut that down to eight, mostly indefinite, and upon the hearing to one alone, when practically all that time he and his wife 'had been living together as an ordinarily happy married couple. The solicitors for petitioner state that it is quite common in divorce proceedings to allege that adultery occurred on consecutive clays or numerous' occasions, even though it should be determined later to confine the testimony to one or two specific incidents. In the present case it is beyond dispute that at the time the husband filed his petition he had no reason to believe that his wife had committed adultery on any of tire occasions charged, in the petition or in the bill of particulars, except on May 27th, 1916. The attempt to destroy the character of his wife by the absolutely unfounded charges in the petition, reiterated to some extent in the bill of particulars, we think justifies the conclusion that he had an ulterior motive in instituting this litigation. Why he sought to destroy the character of his wife for virtue and morality in the place where they lived cannot be discovered from tire testimony, but that this was his primary purpose we are justified in believing from the outrageous and unsupported charges spread upon the records of the court of chancery, and such action is, to say the least, censurable.

The petitioner attempts to prove that on May 27th, 1916, his wife and Devlin were seen to go separately to the outbuilding back of petitioner’s house, a little after nine o’clock in the evening, and that they remained there from half to three-quarters of an hour, and we are asked to find from this fact that she and Devlin there committed adultery. We very much doubt the truthfulness of the witnesses by whom this alleged meeting is attempted to be proved, in Mew of the absolute denial of the defendant and Devlin.

To justify a decree for divorce on the ground of aclulteiy, the evidence of the defendant’s guilt must be clear and satisfactory. A full and explicit denial of the charge by the defendant and her alleged particeps criminis should be regarded as decisive in a case of doubt. Reid v. Reid, 17 N. J. Eq. 101.

The witnesses who testified for the petitioner as to the incident of May 27th, 1916, were Bens Cartan, petitioner’s brother, Mrs. Bens Cartan and Norman Tice, brother of Mrs. Bert Car-tan, petitioner’s sister-in-law. The vice-chancellor in his opinion sets out fully the facts of che case and also had the benefit of seeing the witnesses and hearing them testify. After reviewing the testimony he says: “The record in the case is so replete with charges, counter-charges and contradictions that pages could be occupied in their mere recital; and while it is assumed that the testimony of the parties is naturally colored by their interests, the prejudice and unfriendliness of Bens Cartan, Mrs. Bens Cartan, Mrs. Bert Cartan and Norman Tice against Devlin and his wife and Mrs. Cartan, the defendant, or one or more of them, is clearly established, and is hardly denied. Mrs. Bens Cartan, in effect, accuses Devlin of having made improper advances to her; Mrs. Bert Cartan practically admits a criminal intimacy with Devlin, and is incensed at Mrs. Devlin for calling her a ‘whore’ because of this relation. The defendant, Mrs. Caftan, accused Bens Cartan, in the presence of his wife, of improper relations. with other women, and he states that she and Devlin corresponded with each other in an apparently friendly way, which was both hypocritical and deceitful; and Nonnan Tice, about the spring of 1918, had a lawsuit with Devlin, which produced an unfriendly feeling on his part, and this feeling was intensified by the information he received of Devlin’s relations with his sister Mrs. Bert Cartan.

“The bias of these witnesses, who are the parties by whom the charge of adultery is sought to be established, coupled with the concealment of their knowledge of the offence, even on the advice of counsel, for over two years, and the continuance of their intimate, social and business relations with the defendants during all that time, taken in connection with the peculiar conduct of the petitioner after information of his wife’s guilt was furnished him, shown by his occupancy of the same house with her, his support of her, his failure to disclose to her until October the knowledge of her guilt obtained by him in May; his willingness to send her to Florida, making the arrangements for her trip and paying her expenses; the service of process in this suit upon her the night before her departure for the south, after they had supper together; his offer to accompany her to the train the following morning; his frequent visits to. the house and association with her during the day and evening after her return from the south; the vague and uncertain allegations of his petition, and of the bills of particulars concerning the times and places, when and where the repeated acts of adultery were alleged to have been committed, when in fact he knew that, his witnesses at the time when these papers were filed and served had told him that they had seen and therefore actually knew the offence had been committed in the outbuilding in May, 1916, if it in fact had been committed — these features in the case, emphasized by his acquiescence, without remonstrance, in the affection or intimacy he states he observed manifested by tire defendants for each other during the past thirteen, years, affected as they are by the presumption of condonation, due to his continued residence in the same house with his wife for months after he learned of her guilt; and the proof, such as it is, of cohabitation after May, 1918, tending to establish actual condonation, leaves the record in a most unsatisfactory condition, and has produced upon my mind, under the guarded discretion with which I have carefully considered eveiy feature of this most troublesome case, such a state of doubt that I am unable to say that I believe the entire story told by any of the parties or their witnesses regarding the intimacy and criminal conduct of the defendants, or in the con-donation of their offence by the petitioner; or, in fact, what part of their respective stories, if any, I do believe.”

We are not in the same state of doubt as the vice-chancellor expresses in regard to the charge of adultery.

Consideration of the case satisfies us that the petitioner has absolutely failed to prove anything which would justify a court in branding this woman as an adulteress, and that the vice-chancellor was therefore right in dismissing the petition.

There were three letters offered in evidence from Devlin to the defendant, Mrs. Cartan, which the petitioner claimed to be tantamount to a confession of guilt. One was not sent at all; the other two she tore up, she says. Devlin testifies he wrote them from dictation of Rens Cartan. They are couched in language that may suggest that she confesses adultery to her husband or almost anything else. She is requested to go to her husband and “ask him to forgive you for everything.” But they are not evidence of her guilt, in the absence of proof that she ratified any statements therein contained.

“Letters written to a pex-son, though evidence against him for some purposes, are not evidence of the truth, of their contents unless besides the mere possession of the letters there is testimony from which, acquiescence in the truth of their coxxtents can be inferred.” State v. MacFarland, 83 N. J. Law 474

The defendant in her amended answer sets up condonation. As before stated, we are satisfied that the petitioner has failed to prove the charge of adultery, and unless a wife has broken her marital vows, there can be no such thing as condonation. Conseqxxently, we should not pass on the question of whether the husband had condoned his wife’s alleged infidelity, because there can be xxo such thing as condonation of an offence which has not been committed.

The decree appealed from will be affirmed, with costs.

For affirmance — The Chibe-Justice, Swayze, 'Trenoitard, Parker, Bergen, Minturn, Iyalisch, Black, Wi-iite, BLep-PENHEIMER, WILLIAMS, GARDNER, ACKERSON, 'VAN BuSKIRK —14.

For reversal — None.


author: Ackerson, J.

text:
    Abraham Foster, petitioner-respondent, v. Levinia Foster, defendant-appellant.
    [Submitted March 1st, 1921.
    Decided June 23d, 1921.]
    1. Where a wife drove her husband from their home with an iron poker, with which she struck him, at the same time calling him abusive names, after which, on the same day, she had him arrested for assault and battery, which charge was dismissed for failure of proof, and she thereupon left their home, but later returned while he was away at his usual summer employment in the country and took absolute possession of the home and changed the lock on the door so that the husband on his return found himself locked out and unable to use his key and his request for a key to fit the new lock was not heeded and his efforts to effect a reconciliation were repulsed — IIeld, that the husband was entitled to a divorce on the ground of willful, continued and obstinate desertion.
    2. A divorce will not bo granted on the uncorroborated testimony or admissions of parties to the suit; in the case stib judice there is corroboration by third party witnesses of every element in the proofs necessary to sustain the decree.
    On appeal from a decree nisi in chancery advised by an advisory master.

      Mr. George A. Douglas, for the appellant.

      Messrs. McDermii £ McDermit, for the respondent.
   Tlie opinion of the court was- delivered by

Ackerson, J.

This is an appeal from a decree nisi in chancery, granting petitioner a divorce from his wife, the defendant, on the ground of desertion. Tlie defendant contends that she did not desert her husband, but that he deserted her, and, therefore, the petition should have been dismissed. Both parties are colored and fifty-six years of age; were married at Dansville, Virginia, September 3d, 188-1, and have had four children, two of whom are living, one a daughter, twenty-nine years of age and married, and tlie other, a daughter, twenty-six years of age and single.

The matrimonial voyage of these parties seems to,have been a rough and stormy one from the very outset, and quarrels and domestic disturbances were frequent. The defendant was an habilve of fortune tellers and, by these seers of the occult art, was advised to watch her husband; that he had poisoned her sister and was trying to get rid of her, which, being formulated by the defendant, .apparently without any foundation, into charges against petitioner, resulted in further disturbances, following which the parties seem to ha-ve ceased occupying the same bedroom, although continuing to live in the same house. Petitioner claims this condition existed because his wife, following these charges, did not want him to sleep with her, while she says it originated because her husband claimed to have a cold and his physician ordered him to sleep alone. But- whatever may have been-the original cause of this domestic condition, it had existed for over twelve years before the alleged desertion complained of, and seems, from the evidence, to- have been mutually consented to, and, therefore, has small bearing upon this case.

Only a few years before their final separation, the petitioner purchased a home in another neighborhood, across the railroad from’where they had been living in a rented house, and he did this, he says, because he wanted to encourage his wife and bring about domestic, happiness, if possible, and he expressed hi® desires to his wife in the following language:

“Now, Lou, I have bought a home. I want you to lay down the devil on this side of the railroad and take up the Lord on the other side, and live like you ought to live, with a man, and your husband. I am sick and tired of it, this way, and she went over there and we lived very nicely for several months, and then she started her devilment again over in this house, and I did everything I could to please her, but there wouldn’t nothing please her.”

The defendant denies that her husband made this statement to her, but it is not denied that for several .months after moving into the new house their relations were much more pleasant, but that thereafter the old friction returned with renewed- vigor. The fact, however, that he bought this new home for $1,200, part on a mortgage which he later paid off, in spite of unpleasant domestic difficulties, gives great credence to his story and certainly shows that he was endeavoring, at this time at least, to do his part.

It appears that for several years petitioner was compelled by reason of his employment to leave his home in the latter part of April or 1st of May to go with' his employer to his country home, where petitioner remained at work until they returned in the fall, and that this was always done with bis wife’s consent. In the latter part of April, 1911, only two or three days before he was to start for his employer’s country place for the summer, the petitioner says that his wife, assisted by their daughter Bessie, drove him out of his home with an iron poker, and that his wife struck him with this poker and told him that she didn’t want him with her, and that he was a “stinkin, low down scoundrel,” and later, on the same day, swore out a warrant against him, presumably, 'for assault and battery, but his wife being unable to substantiate the charge against him, he was discharged and returned home, got his things and went to his work at his employer’s country home, and that his wife immediately left his home, but returned while he was away and took absolute possession, and when he returned the following October he could not get in, and he found that his wife had changed the lock on the door so that he could not use his key, and he was locked out, and he was therefore obliged to take up his abode in a room over the garage at his employer’s town house. A few days later he went again to his home and was admitted by his daughter Bessie, but when he asked for a key it was not.forthcoming. His wife did not appear, although she admits that she was in the house at the time, so, after getting some needed clothing, he returned to the room over the garage. Later he returned a third time to his home but could not get in. He also testified that when he first came back from the country this time, in October, he met his wife on the street, but she did not speak to him; that he tried to talk to her on other occasions, notably at their church, but that she would not permit him to do so, but would purposely turn away and avoid him. He also testified that he had asked several persons to speak to his wife for him in an effort to effect a reconciliation, and that her reply had been that she did not want him nor any of his nigger trash back. He is corroborated by Partlienia Flemming, an apparently disinterested witness, who says that at petitioner’s request she spoke to his wife, shortly after they had parted, and asked her if she wouldn’t take her husband back again, to which she replied: “No; I have changed the lock. I don’t want him or none of his nigger trash back.” Petitioner is also corroborated by his son-in-law, who says that he called at petitioner’s home in May, 1911, shortly after he had gone to his summer’s work, and talked with defendant, and that she said she had driven her husband away and never intended to live with him again. All of these statements were repeated to petitioner. Another witness, admittedly a friend of both parties, testified that he called at their home a year or so after their separation, a fact which was unknown to him when he called, and after telling him that her husband was not living with her, defendant said that she didn’t care whether he returned home again or not — didn’t care whether he ever came back. Defendant, of course, denies making any of the foregoing statements, but admits that she talked with the three last-mentioned witnesses at the times stated by them, and we can see no good reason why these persons, who had no apparent interest in this suit, should deliberately perjure themselves, and their testimony is not shaken.

Defendant admits that she quarreled with her husband a few days before he went away to his work the latter part of April, 1911, because, she says, he wanted to put her out of the house, and she also admits that she swore out a warrant against him at tin's time and that after a hearing he was discharged. She further admits that after he went away to his work in the country, she changed the lock on the door of their home, but gives as her reason that the key fell into the stove and was burned so that when she found it in the stove it broke off so she couldn’t use it, and as they only had the one key she was obliged to get a new lock. On cross-examination she was asked how the kejr happened to get into-the fire, and she replied:

“The Lord only knows; I don’t know. It might have been on account of peeling the potatoes, and putting the peelings in the lire; I don’t know. We started to hunt for the key, just as you often will hunt for things, and we started cleaning the stove, and the key was in it.”

She also said that a Mr. Stewart, who roomed with them then, tried to fix the old lock but couldn’t, and later she testified that he put the old lock on the cellar door. It is significant that Mr. Stewart was not called as a witness regarding the lock and key, nor his absence explained; nor is it explained how the old lock without a key could possibly be used any more effectively on the cellar door than on the door from which it was removed; nor is a satisfactory reason given why a new key was not obtained or made for the’ old lock instead of replacing it with a new one at this particular juncture when such action could so easily be misunderstood. Defendant also admits that she had the use of the entire house without charge ever since May, 1911, and has had the income from roomers, and that her husband has paid the taxes.

Her daughter Bessie, although admitting that she was present on the occasion in the latter part of April, 1911, when her father says she assisted her mother in driving him out of the house with the aid of a poker, nevertheless, fails to say a single word about wliaf happened on that important occasion, and does not even attempt to deny her father’s assertions regarding it, although she was the onty eye-witness besides the parties themselves, ancl this was the crucial point in the case, as it marked the beginning of the period of desertion complained of, ancl her'testimony as to what happened at that time was vital to the defendant’s case. She admitted that her mother changed the lock on the door after her father had gone to his summer’s work, and that her father came to the house in October, 1911, and asked for a ke3r, but fails to tell us why one was not given to him, although he came there several times.

Defendant only called two other witnesses, her other daughter, Pearl, who was married and away from home during the occurrences which led up to this suit, and, therefore, could throw very little light on the subject, and a Mrs. Cassidy, who claimed that in June or July, two or three years before the trial, she went to the kitchen door of the house where she was working and heard petitioner say to a neighbor in the next lot about fifty yards away: “She [meaning defendant] had -better go and get herself a man, because she wouldn’t get him no more.” This testimony seems very unreliable when we consider that it was made at a time when petitioner was customarily away at his summer work, as stated in his denial, and that it was the only remark the witness heard.

While we have emphasized somewhat the testimony of the petitioner and the defendant, we are not unmindful of the wholesome rule expressed in Hague v. Hague, 85 N. J. Eq. 537; Stieglitz v. Slieglitz, 112 Atl. Rep. 310, and Garrett v. Garrett, 86 N. J. Eq. 295, that a divorce will not be granted upon the uncorroborated testimony or admissions of parties to the suit, and our conclusion in the case sub judice is not based upon such testimony alone, for we have found corroboration in the case by third party witnesses of every element in the proofs necessary to sustain the decree.

The question presented to us is purely -one of fact, and while the testimony of the petitioner is in some respects contradictory, nevertheless, our examination of the whole case leads us to the conclusion that there was sufficient evidence to justify the advisory master, who had the opportunity of hearing and observing all of the witnesses, in finding that the defendant willfully deserted petitioner, and we question whether, under the circumstances of the case, and considering the temper and disposition of the defendant, and her attitude towards her husband, as shown by the evidence, there was any duty imposed upon petitioner to make advances to his wife to terminate the separation (Hall v. Hall, 60 N. J. Eq. 469); but if there was, we conclude that he fully performed this duty, and that defendant’s desertion was not only willful but also continued and obstinate.

The decree nisi will be affirmed.

For a-ffirmance — The Ci-iIef-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, Katizenbaci-i, White, IIeppeni-ieimer, Williams, Gardner, Ackerson — 14.

For reversal — None.