author: Framing, Vioe-Okdinary.

text:
    In the matter of the appeal from the decree of the orphans court of the county of Camden dismissing the appeal from the order of the surrogate setting aside the probate of the last will and testament of Frederick G. Frank, deceased.
    [Submitted June 6th, 1921.
    Determined July 21st, 1921.]
    Tinder 3 Comp. Stat. p. 3S8S §§ SOI, 202, 203, the orphans court is without jurisdiction to entertain an appeal by a decedent’s widow from an order of the surrogate revoking and setting aside his decree admitting decedent's will to probate, together with the letters issued thereon, on the ground that the decedent was a resident of another state at the time of his death. Any appeal from such order of the surrogate should have been to the prerogative court.
    On appeal from a decree of the orphans court of Camden county.
    November 4th, 1918, the surrogate of Camden county ad-1 mitted to probate the last will and testament of Frederick G. Frank and issued letters of administration mm lestcmmio mnexo to Anna C. Frank, the mother of the deceased. The order of probate was based upon the ordinary proofs contained in a verified petition filed by the said Anna C. Frank, which petition contained, among other things, the statement that the residence of the deceased was in Camden county at the date of his death.
    November 26th, 1918, Esther Frank, widow of the deceased, filed a petition with the surrogate of Camden county praying for revocation of the probate' on the ground that the averments contained in the petition of the mother of testator to the effect that decedent was a resident of this state at the time of his decease were false; that at the time of his death decedent was a resident of Philadelphia, Pennsylvania; that the averments of the petition touching the residence of decedent were fraudulently made for the purpose of avoiding probate in the State of Pennsylvania where the laws were less favorable to the petitioner.
    November 26th, 1918, an order was made by the surrogate requiring the persons in interest to appear before him on a date named and show cause why the probate of the will should not be revoked and the letters of administration nan testamento annexo issued thereon set aside.
    After refusing a motion to dismiss the petition for revocation the surrogate heard the testimony of witnesses touching the charges contained in the petition, and on January 22d, 1919, entered an order which recited, among other things, that the proofs established that decedent was a resident of Pennsylvania at the time of his death, and that the court was induced to exercise jurisdiction of probate by reason of the statements contained in the petition for probate and in the affidavit verifying the same .that decedent was domiciled in tire State of New Jersey; it was accordingly ordered that the decree admitting the said will to probate and the letters issued thereon to Anna C. Prank be “revoked, set aside, made null and void and for nothing holden.”
    Prom that order an appeal was taken to the orphans court.
    December 23d, 1920, the orphans court made an order dismissing the appeal on the ground that the court was without jurisdiction to entertain the appeal.
    Prom that order of the orphans court an appeal.has been taken to this court.

      Mr. Joseph Bede Tyler, proctor for Annie C. Frank, appellant.

      Mr. T). Tm.eman Stackhouse, proctor for Esther Frank, respondent.
   Framing, Vioe-Okdinary.

The single question which has been presented to this court for consideration herein is whether an appeal could he taken to the orphans court from the order of the surrogate revoking the order of probate and the letters issued by him thereon. The orphans court held, and respondent in this appeal contends, that any appeal from that order should be to the prerogative court.

Prior to the act of March 26th, 1917 (P. L. 1917 p. 293), the surrogate could not entertain a petition to vacate an order of probate which-had been made by him. Mellor v. Kaighn, 89 N. J. Law 543. It is here conceded that that act conferred that power.

The provisions of the revised Orphans Court act of 1898, touching appeals from the surrogate (P. L. 1898 pp. 715, 793), are sections 201, 202 and 203 of 3 Comp. Stat. p. 3888. Section 201 relates to- “proceedings of a surrogate in proving an inventory or granting letters 'of administration or of guardianship.” The appeal there given- is to the orphans court. The learned judge of the orphans court held that the provisions of that section were inapplicable to the appeal. Section 202 provides :

“Proceedings of surrogates respecting the probate of wills shall be subject to appeal to the orphans court by any person' interested, or other person legally representing him, and to proceedings thereon, as if the will had not been proved.”

This section was held by the orphans, court to relate only to cases in which probate had been granted by the surrogate. Section 203 provides: “All proceedings of surrogates, from which an appeal is not provided for in the last two sections, shall be subject to appeal to the prerogative court,” &c. It was accordingly held by the orphans court that any appeal in this matter should have been to the prerogative court.

The contention of the parties herein has been thus directed to the inquiry whether the provisions of section 202 embraces only cases in which the surrogate has affirmatively granted probate, or whether the provisions also contemplate cases in which he has denied probate either in the first instance or by a subsequent order of revocation.

It is pointed out in the matter of Coursen's Will, 4 N. J. Eq. 408 (at p. 414), that- prior to the act of December 16th, 1784, establishing the orphans court (Pat. L. p. 59), the jurisdiction exercised by tlie ordinary’s surrogates not only included granting probate of wills but also hearing and deciding disputes touching their validity and disputes touching the right of administration, and that the act of 1784 in creating the orphans court transferred from the surrogates to the orphans court the powers theretofore exercised by the surrogates in hearing and determining such disputes. By section 15 of that act it is provided that surrogates shall take the depositions, to wills, &e.,

“in cases only where no difficulty, objection or dispute shall arise thereon, but in all cases whatsoever where doubts arise on the face of a will, or a caveat is put. in against proving a will, and wherever disputes happen respecting the existence of a will, the fairness of an inventory or the right of administration, the surrogate shall issue citations’’

to the orphans court, “and all proceedings of surrogates, not brought as aforesaid before the orphans court, shall in like manner be subject to appeal to the prerogative court.” No appeal was given in any case from the surrogate to the orphans court.

It seems impossible to conclude that under that statute the appeal contemplated from the surrogate to the prerogative court in matters of probate of wills included only orders affirmatively granting probate. The surrogate was privileged to deny as well as to grant probate, and the language of the act gave an appeal to the prerogative court from “all proceedings of the surrogates, not brought as aforesaid before the orphans court” — that is, not sent to the orphans court by citations issued by the surrogate in cases in which “doubts arise on the face of the will, or a caveat is put in against proving a will, or in which disputes happen respecting the existence of a will.” The petition for probate, and its accompanying proofs, might well be inadequate in many respects; such petition or proofs might even disclose that deceased was a non-resident. In such circumstances the surrogate who holds a regularly established court and exercises judicial functions (Mellor v. Kaighn, supra; In re Whitehead’s Estate, 85 N. J. Eq. 114; Crawford v. Lees, 84 N. J. Eq. 324, 338) would necessarily adjudicate the matter of his own jurisdiction and deny probate, and from that determination an appeal would clearly lie to the prerogative court under the broad and comprehensiye language of the act above quoted. Plume v. Howard Savings Institution, 46 N. J. Law 211; Crawford v. Lees, supra.

The Orphans Court act of June 13th, 1821 (Rev. 1821 p. 776), contains essentially the same provisions, the language of section 21 being that

“all proceedings of surrogates, not brought as aforesaid before the orphans court, shall, in like manner, be subject to an appeal to the prerogative court by any persons interested, or other person legally representing them.”

The revised Orphans Court act of April 16th, 1846 (Rev. Stat. p. 205). in section 16 adopts the same language above quoted, giving an appeal to the prerogative court from “all proceedings of the surrogates not brought as aforesaid before the orphans court” — that is, not brought before the orphans court by citations in cases of doubts on the face of the will, caveats filed or disputes respecting the existence of a will.

This right of appeal to the prerogative court from all proceedings of surrogates not brought to the orphans court by citations appears to have remained unchanged by legislation until the act of March. 17th. 1855. P. L. 1855 p. 342. By section 2 of that act an appeal to the orphans court was given to any person aggrieved by any order or proceeding of a surrogate in proving an inventory or granting letters of administration. The language of this section clearly includes only the affirmative action of the surrogate in proving an inventory or granting letters. Section 11 of that act provides:

“That all proceedings of surrogates respecting the probate of a will of a person dying after this act takes effect, and not brought before the orphans court by virtue of the sixteenth section of the act to which this is a supplement [section 10 of the act of April 16th, 1846, above quoted], shall be subject' to an appeal to the orphans court by any person interested, or other person legally representing him, and to proceedings thereon as if the will had not been proved.”

While the previous legislation already referred to touching appeals from the surrogate to the prerogative court contained no expressions in any way suggesting restrictions or limitations to its operation, the concluding language of section 11 of the act of 1855, in harmony with section 2 of that act, is quite to the contrary. Standing alone, the expression “proceedings thereon [in the orphans court] as if the will had not been proven” clearly contemplates an appeal from an affirmative order of probate made by the surrogate, and I think it also, appears reasonably obvious from a consideration of the entire act'that the legislative intent here discloséd is to afford an appeal to the orphans court from orders of probate only, notwithstanding the generality of the previous words “all proceedings of surrogates respecting the probate of a will.” A denial of probate by the surrogate based upon non-residence of the deceased might appropriately be»considered as “proceedings of the surrogate respecting the probate of a will,” but the subsequent direction that in the exercise of the appellate jurisdiction of the orphans court conferred by that section that court should proceed “as if the will had not been proven,” especially when the section is considered in connection with section 2 of the act, clearly manifests a legislative intent that the appellate jurisdiction there conferred upon the orphans court was only in cases in which the surrogate had granted probate. Considering the section as one conferring an appellate jurisdiction not theretofore existing, and also- as creating that jurisdiction in connection with the second section of the same act which beyond the field of all possible doubt only authorized appeals to the orphans court from affirmative orders of the surro- ■ gate granting letters of administration and proving inventories, ■it seems impossible to recognize a legislative intent extending beyond the scope already stated.

This statute of 1855 remained unchanged until the revision of the Orphans Court act of March 27th, 1874. Rev. of N. J. p. 753. In that revision, the language of the second section of the act of 1855 was re-enacted. The provisions of the eleventh section of the act of 1855 were, in substance, adopted in the revision of 1874 in the following language:

“Proceedings of surrogates respecting (lie probate of wills shall be - subject to appeal to the orphans court by any person interested, or other person legally representing him, and to proceedings thereon, as if the will had not been proved.”

A third section touching appeals was added in the revision of 1874 as follows:

“All proceedings of surrogates, from which an appeal is not provided for in the two last sections, shall be subject to appeal to the prerogative court by any persons interested, or other person legally representing them.”

This section appears to have originated in that revised act This new section appears to measurably give recognition to the view that only affirmative orders of the surrogate were contemplated by the preceding sections.

These three sections last referred to were retained in the same terms in the revised Orphans Court act of 1898 (P. L. 1898 pp. 715, 793) and are the three provisions now in force touching appeals from surrogates, and ar,e sections 201, 202 and 203 of 3 Comp. Stat. p. 3888, as already stated.

A decree will be advised affirming the decree entered in the orphans court.


source: Caselaw Access Project

author: .Beam ins, Vick-Ordinary.

license: Public Domain

text:
    In the matter of the estate of Thomas Buzby, deceased, who died testate.
    [Submitted November 17th, 1921.
    Determined January 24th, 1922.]
    1. Under a will bequeathing the residue of a testator’s personal estate to his wife, and after her death or marriage “to such persons as would by law inherit the same,” the persons referred to are those who would take under the statute of distributions at the marriage or death of the wife.
    2. A limitation over to the “heirs-at-law” or ‘.‘next of kin” of a testator after a life estate refers to persons who are heirs-at-law or next of kin at the time of the testator’s decease, even though the life tenant should be one of them, or should be the sole person to take, the natural presumption to the contrary being insufficient to control the legal and fixed meaning of the technical words as necessarily referring to the testator’s death, in the absence of provisions in the will fixing some other time.

      On appeal from a decree of the orphans court.

      Mr. William II. Clevenger, for the appellant.

      Messrs. Leap, Sh aryl ess cG Way, for the respondent.
   .Beam ins, Vick-Ordinary.

This appeal involves the construction of the fifth paragraph of the will of Thomas Buzby, deceased. That paragraph is as follows:

“5th. I give and bequeath unto my beloved wife Mary M. Buzby during her natural life or while she remains my widow, all and singular the residue of all my personal estate of whatsoever kind I may be possessed of. at the time of my decease, and after her death or marriage, to such person or persons as would by law inherit the same.”

The single question which has been controverted is whether the gift of the corpus of the personal property referred to in the paragraph above quoted is to be understood as a gift to the persons who were next of kin of testator at the time of his death, or to the persons who would stand in that relation to testator at the decease of the life- tenant, who has recently died.

In no other part of the will is there to be found any provision which can be said to materially aid this inquiry.

It is a well-recognized rule that such words as “such persons as would by law inherit the same” are interpreted in reference to the kind of property, whether real or personal, which is the subject of testamentary disposition. Accordingly, the gift to such persons as would by law inherit the same must be here understood to refer to the persons who would take under the statute of distribution at the time intended by testator. Trenton Trust Co. v. Donnelly, 65 N. J. Eq. 119, 124; Leavitt v. Dunn, 56 N. J. Law 309; Meeker v. Forbes, 84 N. J. Eq. 271.

Touching the primary issue above stated it wras recognized in Tuttle v. Woolworth,, 62 N. J. Eq. 532, that where a life estate is given to. a person, and the limitation over is to the “heirs-at-law” or “next of kin” of testator, the limitation over will be understood to refer to the persons who weré heirs-at-law or next’ of kin of testator at the time of his decease, even though the life tenant should thereby take as one of the heirs or next of kin, or even be the sole person to take under such limitation over; the reason underlying that determination being that what is referred to as the natural presumption to the contrary is not sufficient to control the legal and fixed meaning of the technical words “next of kin” or “heirs-at-law,” as necessarily referring to testator’s death, in the absence of directions in the will fixing some other time.

The same general view was adopted in Oleson v. Somogyi, 90 N. J. Eq. 342, although the time of the decease of the life tenant was there determined upon as the time intended by testator, notwithstanding the use of the technical words “heirs-at-law” and “next of kin” of testator in the limitation over. The view there made the basis of the decision was that even slight indication of testator’s intent to refer to his heirs or next of kin at the termination of the life estate should overcome any presumption to the contrary arising from the use of the technical words.

In the recent case of American Builders Corporation v. Galligan, 93 N. J. Eq. 51, the gift over was to “such persons as would by law inherit the same.” The language there adopted by testator is identical with that in the present case. The absence of the technical words in the gift over was there held to distinguish the case from Tuttle v. Woodworth, supra, in that it removed the impelling force of the purely technical words already referred to, and it was there broadly held that a devise over after an estate for life “to such persons as would by law inherit,” imports heirs living at the death of the-life'tenant. It was also, there held that the use of the word “would” further imported the death of the life tenant as the timo referred to by testator; Briden v. Hewlett, 2 Myl. & K. 90, being cited to that effect.

The decision in American Builders Corporation v. Galligan, supra, obviously controls the determination of this case.

A decree will be advised in accordance with these views.


author: Bacichs, Vice-Ordinary.

text:
    In the matter of the probate of the last will and testament of Charles Feder, deceased.
    [Decided July 21st, 1921.]
    In a will contest, evidence examined and held not to show that the will was the product of undue influence on the testator.
    On appeal from the Passaic orphans court.

      Mr. Louis O. Morten, Mr. Francis Scott and Mr. Robert II. McCarter, for the appellants.

      Mr. William B. Gowrley, for the respondent.
   Bacichs, Vice-Ordinary.

This' appeal is from a decree of the orphans court of Passaic county admitting to probate the last will and testament of Charles Feder, deceased. The contest was waged upon the usual grounds of incompetence and undue influence. After a voluminous record, which I have carefully read, counsel for the caveators withdrew, in the court below, the charge of incompetence. The learned trial judge concluded that the will was not the product of undue influence, and his reasons leading to that result are fully stated in bis opinion, in which I concur, adding that there are other and important incidents in evidence to which he could have alluded favorably in sustaining his views and judgment.

The concluding paragraph of the opinion. “Moreover, proponent, Rebecca Rhode, has successfully met. and overcome the burden of showing that neither she nor her husband exerted any undue influence upon the testator,” gave me some concern, and T searched the record for its justification, apprehensive that in my perusal I had overlooked some salient testimony that shifted the burden of proof. I called counsels’ attention to it and they attempted to- support it by supplemental testimony before me. Now, after argument, I am satisfied that the troublesome sentence was a judicial slip. There was no- relation of trust and confidence between the parent and the favored child (Mrs. Rhode), nor ascendency nor dominance on her part, as to raise the presumption of undue influence within the principles laid down in the Sparks’ Case, 63 N. J. Eq. 242; In re Anastasia Davis, 73 N. J. Eq. 617, and In re Cooper's Will, 75 N. J. Eq. 177. Although Mr. Peder had reached a great age, he retained to a remarkable degree the mental virility of his youth, to such an extent that he was able until the last to carefully watch over his fortune. He quit business early, and wisely, to husband what he had gathered through years of toil. Although affable in intercourse, and tactfully acquiescent, yielding when his comforts were at stake — an old man’s privilege — he was, nevertheless, keenly sensitive to slight, resentful of meddling with his affairs, and hardheaded when his sense of right and his resolutions were opposed. The incidents that were brought out at the trial— and there were many, as tending to establish undue influence on the part of Mrs. Rhode, and they were all more or less of an oppressive character — if true, would have met with censure and reaction. The testator was a “pay guest” in his daughter’s bcane. She was attentive to her aged father, of course, but there is nothing in the proofs even tending to- show that she dominated his affairs. He had a male nurse, and the latter’s “back stairs” gossip is far from satisfying me that Mrs. Rhode controlled her father’s conduct, or made any effort in that direction. That sire wanted her father to make a will is beyond question. That she never sought a preference for herself is equally beyond .question, under the proofs. Indeed, to the contrary, it is. shown that her aim was to have him make an “equality will,” one that dealt equably with the six children. That she ever approached her father is negated by two bits of proof. Her husband reproached her for not making the effort, and she asked the male uurso to suggest to her father that he make a will. Why, if she herself were influential with him, or attempted to control his mind, should she ask the servant? The will was drawn bv the testator’s own lawyer, to whom alone he confided-his wishes, and upon whom he imposed professional secrecy as to its contents;' it was the unconstrained act of the testator.

The judgment below will be affirmed.


author: Backer, Vice-Ordinary.

text:
    In the matter of the estate of Perceval Annin, deceased.
    [Argued and decided January 17th, 1922.]
    1. Since the orphans court and thci prerogative court have concurrent jurisdiction of the probate of wills, proceedings in the matter of the probate of a will in the latter court will be stayed on motion of the proponent of a later will in the orphans court.
    2. Where such proceedings are so stayed, an administrator pendente lite appointed by the orphans court should be allowed to take the estate into custody pending litigation in that court with directions, if the will is sustained, to yield the funds to the executor receiving letters testamentary, and if not sustained, to surrender them to the administrator pendente lite appointed by the prerogative court.
    On motion to stay proceedings.

      Mr. Walter L. McDermott, for the motion.

      Messrs. Conil tG Smith (Mr. William A. Smith), contra.

   Backer, Vice-Ordinary.

Perceval Annin died December 23d, 1921, leaving two testaments, one bearing date August 18th, 1916, the other February 1st. 1921. The later will is absolutely repugnant to the earlier one. The earlier will was offered for probate in this court by the executor therein named seven days after death, December 30th, 1921. On the eleventh clay after the deceased died (January 3d, 1922), the later will was offered for probate to the surrogate of Hudson county by the executor therein nominated, and caveats having been filed, citation issued out of tbe orphans court of the comity January 6th. Citations issued out of-this court January 12th. On January 3d an administrator pendente Hie was appointed by this court, and on January 10th the orphans court also appointed one.

The proponent in the orphans court now moves to stay the proceedings in this court and to suspend the duties- of the administrator pending the contest in the orphans court. The orphans court and the prerogative court have concurrent jurisdiction of the probate of wills, and as the orphans court has taken cognizance of the testament last executed, no useful purpose can be served by probating the earlier one at this time- in this court. That function should await the outcome of the contest in the orphans court, for, if that document is sustained as the last will and testament of the deceased, the judgment, automatically, will bring the inquest in this court to an end. If, on the other hand, the orphans court refuses probate, the inquiry into the execution of the will presented here may then proceed to- judgment. A stay will conserve energy and expense.

The administrator pendente Hie appointed by the orphans court ought, under the circumstances, to be allowed to- take the estate into custody pending the litigation in that court. If the testament is sustained bjr the orphans court, he will yield the funds to the executor receiving letters; if it is not, he will surrender them to the administrator pendente lite appointed here. I grant the motion and will advise an order accordingly.


author: Gummere, Chief-Justice.

text:
    S. M. Braunstein, Inc., v. McGrory Stores Corporation.
    [Decided March 6th, 1922.]
    1. Unless a lease contains a provision restraining the lessee from underletting the demised premises or assigning the lease, the lessee is entitled to do either at his own pleasure, notwithstanding the landlord’s objection.
    2. Under a provision in a lease that “this agreement of lease shall bind and apply to the heirs * * * and assigns of the respective parties,” an assignee of a lease is empowered to make any alterations or improvements that the lessee was arithorized to make.
    On appeal from a decree in chancery.

      Mr. Clarence L. Cole, for the appellant.

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

Gummere, Chief-Justice.

On November 1st, 1915, one Samuel Braunstein, who was the owner of a certain store and premises in Atlantic City, leased the same to the Braunstein-Blatt Company for a period of twenty years. The lessee entered into possession at the beginning of the term, and conducted on the premises a general department store until 1921, when it assigned the lease to the defendant and surrendered possession to the latter. The defendant operates a “chain” of five and ten-cent stores in this and other states, and after it entered into possession of the leased premises it began making alterations therein for the purpose of rendering them suitable for the carrying on of that business therein. Prior to the assignment of this lease to the defendant the present complainant purchased the leased premises from Braunstein, and, having learned that the lease had been assigned and that the defendant purposed making material alterations to the store, notified the defendant that the assignment'of the lease was invalid; and, further, that it would not permit the intended alterations to be made. Being informed by the defendant that it proposed to carry out its plans, in disregard of the notice given it, the complainant filed its. bill seeking- to enjoin such action. After hearing the case on bill and answering affidavits, the learned vice-chancellor, to whom the matter had been referred, refused to allow a preliminary injunction, and from the order of disallowance the present appeal has1 been taken.

The first contention before us is that the attempted assignment of the lease by the Braunstein-Blatt Company to the defendant was invalid, for the reason that no such power had been conferred by the lease itself. But this contention, we think, is without-merit, and for two reasons: In the first place, the rule is entirely settled in this state that, unless a lease contains a provision restraining the lessee from underletting the demised premises, or assigning the lease, the lesseé is entitled to do the one or the other at his own pleasure, notwithstanding the objection of the landlord. Field v. Mills, 33 N. J. Law 254; Farmer v. Davies, decided at the present term. An examination of the lease involved in the present case discloses that it contains no restriction against the lessee’s right to assign. In the second place, it is to be noted that it is made apparent by the tenth item of the lease that both parties contemplated the probability of an assignment thereof during the running of the term and by implication provided for the making of it. That item reads as follows:

“It is agreed between the parties hereto that this agreement of lease shall bind and apply to: the heirs, executors, administrators, successors and assigns of the respective parties thereto.”

-It is next argued that, even if the power to assign the lease be conceded, the assignee was without legal right to malee material alterations in the demised premises. In considering this point, the provision just cited should be borne in mind; that is (in legal effect), that the various provisions of the lease should apply not only to the parties thereto, but also to their respective assigns. The question, therefore, is whether there is anything in the body of the lease which authorizes the lessee to make changes of the character contemplated by the present defendant, for, if there is, then, as we have already indicated, it inures to the benefit of the assignee. The question is answered by a inference to the seventh item of the lease, which declares:

“That the said party of the second part” (the lessee) “may make all such alterations, or improvements as it may find necessary and beneficial to it in the operation of its said business conducted in the said premises; provided, however, that if any of the appurtenances hereby demised be removed, they shall be replaced at the expiration of this lease.”

It is not seriously contended that the proposed changes will destroy the protection afforded by the proviso, nor is it suggested that the contemplated alterations are not reasonably necessary to the defendant in the operation of its business to be conducted in the leased property, or will make it impossible to restore the premises to their original condition at the termination of the lease.

The lessee being entitled to the benefit of the proviso contained in the seventh item of the lease, and the proposed alterations not being in violation of the proviso inserted therein for the protection of the lessor, we conclude that the order appealed from should be affirmed.

For affirmance — The Chief-Justice, Swayze, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbaci-i, White, HepPENHEIMER, WILLIAMS, GARDNER, VáN BuSKIRK — 13.

For reversal — None.


author: Gummerb, Chibe-Justice.

text:
    Bertha Tehsman v. Reinhold Tehsman.
    [Decided March 6th, 1922.]
    1. A husband’s separation from and neglect to care for and support his wife constitute an abandonment within the Divorce act, section 26, though the wife in the meantime recovers a decree for separation and separate maintenance in another state.
    2. In an abandoned wife’s suit for separation under section 26 of the Divorce act, a foreign decree by a court having jurisdiction of the parties and subject-matter, granting her a separation and an allowance for support, is conclusive evidence of the husband’s abandonment from the date therein fixed.
    3. In an abandoned wife’s suit for separate maintenance, the court of chancery may allow a weekly sum for her support from the date of the filing of the bill.
    4. In an abandoned wife’s suit for separate maintenance a letter from the defendant to the complainant, after a foreign decree granting the complainant a divorce a mensa et thoro, expressing a desire to resume marital relations, was properly excluded, such repentance, even if honest, being too late.

      On appeal from a decree in chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 76.

      Mr. J. Emil Wdlscheid, for the appellant.

      Mr. Ci. Earl Brugler, for the respondent.
   The opinion of the court was delivered by

Gummerb, Chibe-Justice.

The bill in this case was filed by Bertha Tehsman against her husband for support and maintenance under the statute (Divorce act, Rev. of 1907 § 26; Comp. Stat. p. 2033). The proof showed that the parties were married in Brooklyn in 1914; that they lived, together in the city of New York until March, 1916, when the complainant left her husband’s home on account of the latteEs extreme cruelty to her; that almost immediately afterward she brought suit in the supreme court of the State of New York for a divorce a mensa et thoro; that the suit was defended by the husband and that judgment was entered therein in favor of the wife on June 9th, 1916, and that alimony in the sum of $10 per week was awarded her for her support and maintenance. Shortly after that time the defendant removed to this state and has lived here ever since.

The bill was filed July 15th, 1918, and the final decree was entered April 21st, 1921. By it the complainant was adjudged to be entitled to the relief provided by the section of the statute above referred to, and the defendant was directed to pay her the sum of $10 for each and every week from the date of the decree until the further order of the court, and also a like sum for the period which had elapsed between the filing of the bill and the entry of the final decree, amounting in all to $1,110. From this decree the defendant has appealed.

The principal ground upon which the appellant seeks to reverse the decree is that the court of chancery was without jurisdiction to make it, for the reason that whatever rights the complainant had against the defendant for separate support and maintenance were merged in the New York judgment, and that for this reason the facts which are heretofore • set out did not warrant the making of that decree. The fallacy of this contention is made apparent by a reference to our earlier decision in tire case of Freund v. Freund, 71 N. J. Eq. 524. In that case we held that where a husband had finally separated himself from his wife and neglected to care for and support her, his act constituted an abandonment within the meaning of the twenty-sixth section of our Divorce act, although the wife, in the meantime, had recovered a decree for separation and separate maintenance against him in another state. We also held that where in a suit brought by an abandoned wife for separate maintenance, under our statute, she pleaded a foreign decree granting her a separation from her husband and a weekly allowance for support, and it appeared that the court rendering; such decree had jurisdiction of tire parties and the subject-matter, such decree was conclusive evidence of the husband’s abandonment from the date therein fixed and was sufficient to establish the allegation thereof set out in the bill of complaint filed in the case then under review. We also held that it was within the discretion of the court of chancery to allow a weekly sum for the support of the wife, to run from the date of the filing of the 'bill.

The learned vice-chancellor, before whom this case was heard,, followed the law laid down by this court in the Freund Case.

It is further argued as a ground for reversing this decree that the learned vice-chancellor refused to admit a letter written by the defendant to1 the complainant some six months after his removal to this state, in which he expressed a desire to resume marital relations with her. The avowed purpose for which this letter was offered was to show that after its reception the defendant was no longer responsible for the continuance of the separation existing between him and his wife, and that for this reason the complainant was not entitled to the benefit of the twenty-sixth section of our Divorce act. In our opinion the letter was-properly excluded. Assuming that it was written in good faith and showed an honest repentance on the part of the husband for his cruel treatment of the complainant, his repentance came too late to be of any avail to him so> far as his legal responsibility to-support his wife in a state of separation was concerned. The decree of the New York court established her right to live apart from him for the rest of her life if she wished to do so, notwithstanding any effort on his part to bring her back, and his tardy repentance not existing until after that decree was entered cannot operate to deprive her of the right thereby conferred upon her.

The decree appealed from will be affirmed.

For affirmance — The Ci-iiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbaoi-i, .White, PIeppeni-ieimer, Williams, Gardner, Ackerson, Van Buskirk — 15.

For reversal — None.


author: Gummere, Chiee-Justioe.

text:
    Thomas J. Prindiville v. Johnson & Higgins, a corporation.
    [Decided March 6th, 1922.]
    One who has accepted dividends and salary from a corporation with full knowledge that its articles of incorporation contain fundamental provisions that are in violation of the laws of the state will be denied equitable relief against such illegal provisions, since he does not come into court with clean hands.
    On appeal from a decree in chancery advised by Vice-Chancellor Backes, and reported in &£ N. J: Fq. 515.

      Mr. Roiert II. McCarter and Mr. Henry Wvllman (of the New York bar). On the brief, Mr. Roydll Victor and Mr. Eustace Seligman (also of the New York bar), for the appellant.

      Mr. John B. Hardin. On the brief, Mr. F. W. M. Guicheon, Adrian H. JMrlcin and Hersey Bgginton (of the New York 'bar), for the respondent.
   The opinion of the court was delivered by

Gummere, Chiee-Justioe.

The bill in this case was filed by the appellant, Prindiville, a stockholder in the Johnson & Higgins Company, to compel it to pay him certain dividends upon his holdings of capital stock, notwithstanding the fact that such payment is prohibited by the charter of the compan}'', and to restrain the payment of what he claims to be excessive salaries to the officers of the corporation.

The facts involved in the litigation are fully set forth in the opinion promulgated by the learned vice-chancellor, and it is not necessary to restate them in detail. Briefly, the ease attempted to be established by the appellant was this: Johnson & Higgins, a copartnership', was, in 1899, carrying on a very lucrative insurance business in the city óf New York, and also in many of the principal cities of the United States. In that year the members of this copartnership, for the purpose of escaping the personal liability of partners, and getting the protection and advantages conferred on corporations and the owners thereof by the laws of ^New Jersey, concluded to, and did, incorporate under those laws, using the name of Johnson & Higgins as the name of the corporation. In order to retain the benefits of the partnership', and at tire same time escape liability as partners, they inserted in their articles of incorporation provisions which were not only in violation of our Corporation act, but were also contrary to the laws of this state, for the reason that they were in illegal restraint of trade, and were prohibited by its public policy. In 1911 Prindiville became a stockholder in this corporation, organized, as he now asserts, in violation of our laws, with a full knowledge of the terms of the charter contract under which his stock was issued, and which, as he now asserts, constitute the violations' of law above referred to. Immediately thereafter he was elected one of the officers of the corporation, and continued as such officer until 1919, when he left the service of the corporation, largely because of the fact that he was dissatisfied with the amount of his salary, which was less than was being paid to- certain other of the officers of the company. During the period of his service he received from time to time, as salary and as dividends on his stock, various sums of money,, amounting in the aggregate to between $450,000 and $500,000, as his share of the proceeds of what he now claims was a scheme to violate the laws of the state.

The learned vice-chancellor, before whom the case was heard, after a consideration of the merits, concluded that the charges made by the complainant were not justified in fact- or in law, and*! that the corporate scheme which he now attacks was a valid exercise of the powers conferred upon corporations by our statute, and, as a result of this conclusion, a decree was entered dismiss-} ing the bill.

We are unwilling to consider the meritorious questions decided by the vice-chancellor. The complainant, according to the averments of his bill and the undisputed facts set out in the answer and developed by the proofs, came into the court of chancery for the purpose of having it there declared that a scheme, in the execution of which he was an active participant and the recipient of very large sums of money, was a fraud upon our1 statute, a violation of our public policy, and, therefore, null and void, and sought to have an adjudication in his favor, based upon these facts, in order that he may now enjoy benefits which can only come to him as a result of such an adjudication. Stated, shortly, his position is this: Having for some eight years participated in the carrying out of this fraudulent scheme and reaped the benefits thereof, he now seeks, either for his own personal benefit or as the self-constituted representative of the state, to have this fraudulent scheme ended and our state laws and policies vindicated.

So far as the vindication of our laws and policies is concerned, it is enough to say that the state does not need his aid for any-such purpose, and that his assumed status as a representative of the state cannot be recognized.

If we consider him as a mere individual, seeking to repudiate for his own personal advantage a fraud upon the state in which he was so long a participant, it is entirely settled that the court of chancery is not open to him for any such purpose. It is a maxim of equity that a court of conscience will not even listen to a suitor who comes into that tribunal with unclean hands, and this doctrine is applicable whenever it appears that the litigant seeks to be relieved of the consequences of a fraud in which he has been an active participant. The courts of this state have steadfastly refused to lend their aid to a wrong-doer either by the enforcement of an illegal contract or by relieving the wrongdoer from the obligations thereof; and this thejr do, not out of regal’d for the defendant in the action, but because of their unwillingness to> use the powers which were granted to them for the furtherance of lawful ends in aiding schemes which are in their nature venal, or for the purpose of relieving parties from the liabilities which such schemes create. Watson v. Murray, 23 N. J. Eq. 257; Todd v. Rafferty, 30 N. J. Eq. 260; Minzesheimer v. Doolittle, 60 N. J. Eq. 394; Gregory ads. Wilson, 36 N. J. Law 315; Hope v. Linden Park Association, 58 N. J. Law 627; Wyckoff v. Weaver, 66 N. J. Law 648.

For the reasons stated, the decree dismissing the bill will be affirmed.

For affirmance — The Chibe-Justice, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbacii, White, I-Ierpenheimer, Williams, Gardner, Ackebson, Van Buskirk — 15.

For reversal — None.


author: Swayze, J. White, J. Gummere, Chiee-Justicb Mtnturn, J.

text:
    Keuffel & Esser, complainant-respondent, v. International Association of Machinists, defendants-appellants.
    [Decided January 26th, 1922.]
    1. In suits to restrain picketing during strikes, whether or not intimidation exists, is a question of fact, and the presence of twenty-five or thirty pickets may constitute intimidation when a single picket would not.
    2. The law recognizes the right of members of trade unions to combine in order that they may deal with tlicir employers on terms approaching equality, but employes must be left unmolested in order that their conduct may be controlled by their reason.
    3. In a suit to restrain a trade union and a district business agent from picketing during a strike, the agent who took part in forming, fomenting or aiding to make -an effective organization for illegal purposes was not relieved from liability by letting others do the active intervention.
    4. Picketing by a great number of pickets during a strike, held subject to injunction on the ground of intimidation of those who desired to become employes, although no acts of violence were committed.
    On appeal from a decree of the court of chancery.

      Mr. Merritt Lane, for the complainant-respondent.

      Mr. Marie A. Sullivan, for the defendants-appellants.
   The opinion of the court was delivered by

Swayze, J.

This is a motion on bill and affidavits for injunction to restrain defendants, employes of complainant, from improper interference in complainant’s business during a strike, and also to restrain Bauseh, who describes himself as business agent of District No. 15 of the International Association of Machinists, from like interference. A preliminary injunction was issued. Speaking generally, it restrained the defendants on the same lines as the defendants in Jonas Glass Co. v. Glass Bottle Association, 77 N. J. Eq. 219, were restrained. From the order, so far as this restraint is concerned, no appeal is taken. The appeal is from so much of the order as restrains the defendants from parading in the neighborhood of the plant of complainant, bearing placards or otherwise indicating that a strike is in progress at complainant’s plant; and from picketing the place of business of complainant. The object of the appeal, avowedly, is to secure a decision as to the legality of picketing when unaccompanied with violence, molestation of others, annoying language or conduct — in short, what is sometimes called peaceful picketing. Parading in the neighborhood /of complainant’s plant with placards indicating that a strike is in progress is similar in its legal character to picketing.

Since the present case was argued, the supreme court of the United States has decided the general principle underlying the present facts in a case that has been pending for several years, since, at latest, 1916. Tri-City Central Trades Council et al. v. American Steel Foundries, 238 Fed. Rep. 728; American Steel Foundries v. Tri-City Central Trades Council et al., United States Sup. Ct. Advance Sheets No. 2, October term, 1921, not yet officially reported. The authority of that high tribunal is of such weight as to be practically controlling on us in a class of cases in which it must often, and may always, have the full force of a binding authority. It would be unwise in us to assume to sit in review even if the reasoning of the opinion did not commend itself to our minds, as in fact it does. It is true that that case was within the terms of the Clayton act, and this case, as far as the record shows, is not, but the chief-justice discussed the case also as a matter of common law as well as a matter governed by the Clayton act. We start, therefore, with the ruling in that case as the foundation of our decision. It decided that the employer had the right to the access of Ms employes to his place of business and egress therefrom without intimidation or obstruction, and the employes recent or expectant had the right to use peaceable and lawful means to induce present employes and would-be employes to join their ranks. The legality of any particular conduct depends on the facts of the particular case. Picketing may or may not be lawful depending on whether or not it has an immediate tendency to intimidation of the other party to the controversy (to which we add, “if he has ordinary firmness of mind”), or an immediate tendency to obstruct free passage such as the streets afford, consistent with the right of others to enjoy the same privilege. Thus men may accost one another with a view of influencing action but may not resort to persistent importunity, following and dogging. The number of the pickets may of itself malee the picketing unlawful, since it may amount to intimidation. Every one knows that threats of bodily harm may be made, by a mere show of force without violence of language or breach of the peace, and’that mere numbers may intimidate. The real question is, Does the conduct under existing facts amount to intimidation ? twenty-five or fifty pickets may, when a single picket probably would not. If information alone were wanted in the pending case, all the information necessary for the defendants to enable them to prosecute their efforts to convert the complainant’s employes would have been obtained by a few men. The use of twenty-five or fifty or two hundred as in' fact used, was clearly unnecessary, and could not have been intended for any lawful purpose. In view of the testimony as to what actually went on, the vice-chancellor properly held that the conduct of the defendants was an illegal interference with the complainant’s property rights..

They were enjoined from personal molestation of persons willing to be employed by complainant with intent to coerce such persons to refrain from entering such employment. They do not appeal.

They were enjoined from loitering or picketing in’the streets or on the highways or public places near the premises of the complainants or near any premises with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by complainant, or causing the employes of the complainant to refrain from or refuse to remain in the employ of complainant. They do not appeal.

They were enjoined from violence, threats of violence, insults, indecent talk and abusive epithets, annoying language, acts or conduct, practiced upon any person without their consent with intent to coerce them to refrain from entering the employment of complainant. They do not appeal. •

They were enjoined from attempting to cause any persons employed by complainant to leave such employment by intimidation or annoying such employes by annoying language, acts or conduct. They do not appeal.

They were enjoined from going either singly or collectively to the house of any of complainant’s employes for the purpose of intimidating, urging, annoying or coercing any or all of them to leave its employ. They do not appeal.

They were enjoined from interfering with, hindering or obstructing complainant’s business, and in the operation of complainant’s plant in any manner in inducing or compelling, or attempting to induce or compel 'by threats, intimidation, force or violence any of the complainant’s employes to leave complainant’s service, or to refuse or fail to perform their duties as such employes. They do not appeal.

They were enjoined from in any manner and by any means 'molesting or interfering with complainant’s employes, or any of them, in going to or returning from their daily work. They do not appeal.

We have mentioned enough of the defendants’ conduct which they confess by their failure to appeal. The injunctions against parading and picketing must be read in the light of such admitted conduct. There can, as Chief-Justice Taft said, .be no such thing as peaceful picketing in such surroundings and the evidence shows how mere picketing by overwhelming force runs into intimidation and breach of the peace. The law now recognizes the right of members of trade unions to combine in order that they may deal with their employers on terms approaching equality. On the same principles employes must be left unmolested in order that their conduct may be controlled by their .reason, unaffected by the vis melus of great numbers, which corresponds to the vis major of physical force. It might, perhaps, be claimed that the terms of the injunction from which an appeal was taken were unnecessary, in view of the extent of the other restraint, but they were necessary to present the different question of the right to restraint when the situation is such that what would otherwise be peaceful persuasion, becomes in the actual fact a system of terrorism. It was in this view that the terms appealed from were added; we think prbperly added.

We have referred to the conduct of the defendants at length and specifically because an injunction was issued against Bausch, and it may he argued that he did! no more than the trade unions were conceded the right to do in the American Steel Company Case above cited. The proof sufficed to show that Bausch was directing the strikers and endeavoring to secure more members for the union with a view to compel the complainants to unionize their shops. He denies that he actively intervened; but he accepted their invitation to aid in forming an effective organization. We think a man who takes paid in forming, fomenting or aiding an effective organization for the illegal purpose for which this organization was in fact used, cannot escape liability by letting others do the work of “active intervention.” He aided in forming, fomented and aided an “effective organization” which at once committed unlawful acts, for which it was properly enjoined, as it admitted by failing to appeal. Had he desired to keep within the bounds of the law, the way to do it was to withdraw when his associates (perhaps, in view of the martial character of picketing, we may properly say “his forces”) began their violations of law. It does not follow that because aiding in an effective organization may under some circumstances be legal, that will be the case under different circumstances. A very good illustration is to be found in a case that arose during the recent war. Schenck v. United States, 249 U. S. 47, 52.

“We admit,” said -Mr. Justice Holmes, speaking for the court, “that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from-an injunction against uttering words that may have all the effect of force.” In the later case of Abrams v. United States, 250 U. S. 616, 627, the same judge, although differing from the majority on the case then in hand, said he did not doubt that by the same reasoning that would justify punishing persuasion to murder, the United States may constitutionally punish speech that produces, or is intended to produce, a clear and imminent danger, that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. We need go no further than Chief-Justice Taft’s opinion for an illustration. Speaking of that case he says: “All information tendered; all arguments advanced and all persuasion used under such circumstances were intimidation. They could hot be otherwise. It is idle to talk of peaceful communication in such a place and under such conditions.” In our present case, the evil .to be prevented is the intimidation of workmen — prevention of their free action undisturbed by intimidation. In the existing situation Bauseh’s conduct tended immediately and directly to unlawful conduct of men associated with him in a common enterprise.

The order for injunction must be affirmed, with costs.

White, J.

(concurring).

As has been pointed out it is in effect admitted that the “picketing” in this case abounded in almost all conceivable elements of intimidation, but it is urged that these elements might have been, although they in fact were not, absent, and that, therefore, “picketing” as such should not have been enjoined. This contention raises in my mind the query, “What is the essential and fundamental purpose and effect of ‘picketing’ as practiced in strike controversies?” for, obviously, it is the intended and actual consequence of the practice which is decisive rather than the ordinary meaning of the name as otherwise used. “What we call a rose, by another name would smell as sweet.” and a practice which is intended to, and which does, reasonably cause men of average courage to fear immediate or subsequent bodily injury or death for themselves or their families, or destruction of their homes, or even persecution of their children, as the result of their disregard of a strike order, is none the less intimidation, although called by a name claimed ordinarily to have a peaceful meaning. Personally, I have no doubt that strike “picketing” is intimidation, and that its only efficacy and its only purpose is through the fear which it engenders. As is well known, a crowd has a doubly efficient psychology. It excites its own members when moved by a common purpose, to unreasoned exaltation and excesses of attack, and at the same time (largely because of the atmosphere of this well-known fact) frightens its victims into what would otherwise be quite unjustified depths of terror.

This, as I understand it, is the essence of the opinion by Chief-Justice Taft, speaking for the supreme court of the United States, in American Steel Foundries v. Tri-City Central Trades Council (decided December 5th, 1921), wherein he says: “The name ‘picket’ indicated a militant purpose, inconsistent with peaceable persuasion. The crowds they drew made the passage of the employes to and from the place of work one of running the gauntlet. Persuasion or communication attempted in such a presence and under such conditions was anything but peaceable and lawful. When one or more- assaults or disturbances ensued, they characterized the whole campaign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to- lawful methods to be pursued, however sincere. Our conclusion is that picketing thus instituted is unlawful and cannot be peaceable and may be properly enjoined by the specific term because its meaning is clearly understood in the sphere of the controversy by those who a.re parties to it.” Citing Barnes v. Typographical Union, 232 Ill. 425; Franklin Union v. People, 220 Ill. 355; Philip Henrici Co. v. Alexander (1918) Ill. App. 568; Vegelahn v. Guntner, 167 Mass. 92; Jonas Glass Co. v. Glass Association, 72 N. J. Eq. 653; S. C., 77 N. J. Eq. 219; Jersey City Printing Co. v. Cassidy; 63 N. J. Eq. 759; Frank v. Herold, 63 N. J. Eq. 443; Goldberg v. Stablemen’s Union, 149 Cal. 429; Pierce v. Stablemen’s Union, 156 Cal. 70; Local Union, No. 313, v. Stathakis, 135 Ark. 86; Beck v. Teamster’s Union, 118 Mich. 497; In re Langell, 178 Mich. 305; Jensen v. Cook and Waiters Union, 39 Wash. 531; St. Germain v. Bakery and C. Workers Union, 97 Wash. 272; Jones v. E. Van Winkle Gin and Machine Works, 181 Ga. 336; Union, Pacific Co. v. Ruef, 120 Fed. Rep. 102; Atchison, Topeka and Santa Fe v. Gee, 139 Fed. Rep. 582; Stephens v. Ohio, State Telephone Co., 240 Fed. Rep. 759.

The present ease is illustrative of the foregoing idea. Only one hundred and forty out of the seven hundred employes went out on the order for the sjnnpathy strike here involved, but after two days “picketing” by fifty to two hundred “pieketers” (largety imported), all except twenty-five.of the other five hundred and sixty failed to “show up” at their work. The day after the “picketing” was stopped by the order here appealed from, however, we are advised 'by counsel that all the employes, except the original one hundred and fortjr, came back to work, and this, although (according to the affidavits) a large number of them had been called by name and told by “pieketers” that if they went back to work they would “get theirs,” or “be sony,” or “receive bodily violence.” They apparently were not scared by the verbal threats of the individuals after the backing of the crowd was withdrawn, but they were afraid to run the gauntlet of the hostile army of “pieketers” standing or parading at and near their entrance to-the factory.

For the foregoing reasons I am unable to concede that “picketing” (properly so called), as applied to strike controversies, is ever free from intimidation and obstruction, and I therefore think it is here properly enjoined under the specific term.

Gummere, Chiee-Justicb

(dissenting).

I concur in the view expressed in the majority opinion that the proofs before the vice-chancellor fully justified his conclusion that the conduct of the defendants constituted an illegal interference with the complainant’s property rights, and that the latter was entitled to an order restraining the defendants from further continuing such unlawful conduct. My dissent is based upon what seems to me to be the unwarranted scope of the order appealed from. It contains fifteen different restraining provisions, the validit3r of most of which, as is pointed out in the majority opinion, is not challenged by the appellants. For the purpose of making plain the reason for my dissent, I need only refer to three of those involved in the appeal, nameljr, No. 4, No. 9 and No. 10. They are in the following words: (4) “From loitering or picketing in the streets or on the highways or public places near the premises of the complainant, or near any premises, with intent to procure the personal molestation and annoyance of persons employed, or -willing to 'be employed, by complainant, or causing the employes of the complainant to refrain from or refuse to remain in the employ of complainant.” (9) “From parading in the neighborhood of the plant of the complainant bearing placards or otherwise indicating that a strike is in progress at complainanfs plant.” (10) “From picketing the place of business of complainant.”

It is conceded in the majority opinion that picketing may or-may not be lawful, depending on whether or not it has an immediate tendency to intimidation of the other party to the controversy (or his employes or those seeking employment with him), or an immediate tendency to interfere with their right of free passage, such as the streets afford, and prevent them from exercising and enjoying that right as fully as do others who enjoy the same privilege. I concur in this view, and approve the order appealed from, so far as it restrains such picketing as has the immediate tendency just indicated; and this the fourth provision of the order does, as I read it. The tenth provision, however, goes much further, and restrains the defendants absolutely from picketing, without regard to whether or not such action would have a tendency to intimidate the complainant or its employes or persons seeking employment with it, and without regard to whether or not it would interfere with their full and free use and enjoyment of the public streets. That it has this effect seems to me too plain for argument; for it is an entirely settled principle of construction that, in ascertaining the meaning of a judicial order or decree, every provision thereof is to be given effect, or, stated in another way, that no provision thereof is to be annulled by so construing it as to- malee it a mere repetition of an earlier provision therein, unless that purpose be made manifest by the words used. The fourth provision of the order deals with the matter of unlawful picketing, and, under the rule of construction to which I have referred, the tenth provision must be interpreted as dealing with a method of picketing not embraced within the restraint imposed by the earlier one; in other words, a method that is not unlawful.

It is to be borne in mind that the purpose of an injunction is not to punish for past offences or violations of the law, but to protect in the futura those who have suffered from such violations against a continuance thereof. The learned vice-chancellor, as I have ready stated, properly found that the method of picketing adopted by the defendants constituted an unlawful invasion of the rights of the complainant, of its employes and of persons seeking employment with it, and he .was entirely justified in directing' an injunction preventing any further violation of those rights bjr a continuance of the unlawful methods which had 'been adopted and put in operation by the defendants. But he was not, as I think, justified in going further — that is, in.restraining the defendants in the future from the exercise of their legal rights in a peaceful and orderly manner by prohibiting further picketing, even though done in a lawful way.

And what I have indicated with relation to the matter of picketing is also, true with relation to the restraining of the defendants from further parading in the neighborhood of the complainant’s plant, bearing placards containing a statement that a strike was in progress at that plant, without regard to whether or not the parading shall be done in such a way as to have a tendency to intimidate the complainant, its employes or persons desiring emplojrment with it, and without regard to whether or not it would have a tendency to interfere in any way with the full and free use and enjoyment of their respective rights in the public streets. It is not unlawful per se for a body of men to march through the public streets in a quiet and orderly manner (unless ¡prohibited by some municipal ordinance), even though the paraders carry banners or placards of the character indicated in this provision of the order, unless the placards themselves naturally have a tendency to intimidate the owners of the plant, the employes who continue at work therein or persons desirous of seeking employment at such plant; and that they have such a tendency is not shown by the affidavits in the case.

Considering the order appealed from too broad in the respects which I have indicated, I am constrained to dissent from the view of the majority of my brethren, and vote to- reverse it for the purpose of modification along the lines which I have expressed.

I am authorized to state that Mr. Justices Trenchard and Black and Judge Van Buskirk concur in the views expressed in this opinion.

Mtnturn, J.

(dissenting).

The employes of complainant’s plant at Union Hill, being dis-' satisfied with the terms of their employment, refused to return to work, and sent for Victor Bausch, one of the defendants, to consult and advise with. He advised them to draw up- a statement of their demands as to horn’s and wages, and submit it to their employer, the complainant, for consideration. A committee of employes waited upon complainant for that purpose, but the complainant refused to listen to them. The strikers then resorted to the complainant’s plant at Hoboken, by sending some of their number with circulars to distribute among the employes, calling their attention to the fact of the Union Hill strike for “higher wages” and against “intolerable conditions,” and urging them] to attend a public meeting at a public hall at 107 Washington street, Hoboken, under the auspices of the International Association of Machinists, at which one of the Union Hill employes would be the principal speaker, and Bausch would also speak.

This meeting was attended by over three hundred men and women, only twelve of whom were identified with any labor union. The hall itself is located about one mile and a half from the Union Hill plant, in another municipality, and is located over six city blocks from the Hoboken plant. As a result of' that and a subsequent meeting, another committee of complainant’s workmen was appointed to wait upon complainant, and to present a request for ten per cent, increase in wages. As in the former instance, the complainant refused to confer with the committee. When this report was made to the employes at the meeting, a resolution was passed unanimously declaring a strike a-t the Hoboken plant. As a result of this declaration the employes who struck lingered about the streets adjacent to the plant, observing those who entered1 and left the place, for the purpose, as the hill of complaint alleges, of intimidating and coercing them to quit their employment. Affidavits accompany the bill which show that efforts at intimidation were practiced in many instances, and the learned vice-chancellor then properly granted a preliminary injunction to suppress that illegality. George Jonas Glass Co. v. Glass Blowers Association, 77 N. J. Eq. 219.

The' restraining order is directed not only against the employes but against Bausch and the labor organization, and this appeal is taken only by these two defendants. In their behalf Bausch presented an affidavit denying the truth of the allegations of the bill as to himself and the association, and alleging that neither he nor the association did any picketing, and that the association had nothing to do with calling the strike, or formulating the demands of the employes. Upon the presentation of that issue of fact the injunction as against these two defendants should not have gone.

The rule is settled, since the determination of this court, speaking by Chief-Justice Beasley, in Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299, that when the equity of the complainants’ bill is disproved by the answer and affidavits, a preliminary injunction is not proper. In that case, as in this, the injunction went not upon the allegations of the pleadings, but upon the sworn statements annexed thereto. “The general rule,” says the distinguished chief-justice, “subject to but few exceptions, is that if the facts constituting the claim of the complainant for the immediate interposition of the court are controverted under oath bjr the defendant, the court will not interfere at the initial stage of the cause.” Instances of the application of this rule by this court have been frequent, the latest case being Brunette v. Montclair, 87 N. J. Eq. 338, where Mr. Justice Trenehard, speaking for the court, reiterated the doctrine and amplified it to the extent of declaring that “a preliminary injunction will not be granted merely to allay the fears and apprehensions of individuals. They must also show the court that the acts against which they seek protection are not only threatened but will in all probability be committed to their injury.”

The bill in this ease charges that the active picketing was done by the other defendants, who have not appealed, and charges only against these two appellants an active propaganda to induce the complainant’s employes to join the labor union. Neither the association nor Bausch approached the plant, or were at all active in picketing. Upon that subject, under these decisions, we must accept the affidavit of Bausch as true. The injunction, therefore, as against these appealing defendants should not have been ordered at this stage of the proceedings. The appeal is directed to the provisions of the restraining order wherein it prohibits them —first, parading in the neighborhood, bearing placards, and secondly, picketing the loms in quo. As to the first provision of the restraint prohibiting walking the streets, it is unnecessary to repeat the views I expressed in this court, at the last term, in thé case of Bijur Motor Appliance Co. v. International Association of Machinists, 114 Atl. Rep. 802. The facts in this case, however, do not warrant such a provisional restraint, because neither the bill nor the affidavits shows any such action upon the part of any of the appealing defendants; and the answering affidavit of Bausch shows that neither he nor the association approached the premises nearer than the public halls. As against the association such a mandate would necessarily be futile, and must prove to be mere brutum- fulmen, because not possessing the legal characteristics of a corporation, it has neither a body to be cuffed nor a soul to be consigned to an inferno. In any event, it was simply the formal vehicle through which Bausch as its representative addressed the employes, urging them to 'become members, with which advice they apparently complied in large numbers.

Who was Valentine Bausch? When the exodus from the Union Hill plant began, the employes sought him as a Moses, to advise and lead them from the hill top, not into a promised land, but into Hoboken, and then the trouble began. He is pictured to us in all the pungent putridity, of a labor agitator. Were he a religious or a political agitator, it may be assumed that he would not be accorded the prominence with which the bill invests him; but even as a labor agitator he could invoke the companionship of Lincoln, Wendell Philips and Henry Ward Beecher, not to speak of the immortal Gracchi of Republican Rome. His crowning vice, however, seems to be that he is a Socialist agitator, who associates with a political pariah named Victor Berger, who was expelled from, congress, for the American offence of holding wax-views that differed from the views of the majority of his colleagues. But since the Socialist body constitutes a legally existing political party in the nation and state, and since the dawn of historj', great men have associated with Pharisees and sinners, Bausch seems to be not a fit subject, for legal or political excoriation in these times. But the atmosphere of the bill is not sufficiently lurid without the introduction of another celebrity, Patrick Muso. If it were not for the meticulous description of his industrial activities contained in the bill, we would be inclined, from his terpsichorean nomenclature, to assume that he was a lineal product of a league of nations, in which an apostle of the faith militant, combined with the Muses in sponsoring him. But we are disillusioned in this respect by the information that the only distinction he enjoys is that “he is the business agent of Local 351. International Association Machinists,” and that he was convicted for contumacious conduct by the court of chancery ixx another case, “and was sentenced toi three months in the Mercer county jail.” Facilis descensus Averni.

The head aixdi front of the offending-of these men seems to be that they discussed and advised with the employes in neighboring halls the merits of their industrial demand and the legal modus oferandi for attaining it. This offence, in the contemplation of the bill, seems to be comprehended in the generic offence of “picketing;” axxd, generally, they are enjoined from consulting, parading, visiting or advising the employes against continuing in their employment.

In this situation we are asked to define “picketing,” so that counsel may be in a position to advise their clients regarding their constitutional rights as citizens. This, manifestly, we cannot attempt, since we must deal with each case upon the facts as it is presented.

- Some judges have attempted a definition, and as a result we axe presented with an illogical and confusing medley of obiter dicta, that attempt to define the illegality of what may be a perfectly legal and constitutional act. One learned judge simply hurdled the inquiry by petitio pñncipii, declaring that all picketing is illegal. It might as well be said that all illegal picketing is illegal and the logical circle is thus complete. As well might it be declared that all debating or athletic sports, or boxing exhibitions, are illegal, because some of the participants are occasionally injured, as a result of the contests. This ipse dixit is occasionally followed as a precedent, to the utter abandonment of all consideration of our constitutional guarantees. The fact, of course, is as has been observed by Lord Bacon, that an opinion is as good as the reason upon which it is founded. Cessat ration,e cessat ipsa lex.

There are, however, in this state, satisfactory and reasoned views in the light of personal rights, our legal fundamentals and the constitutional guarantees which extend to every citizen, regardless of employment. , Notable among these is that of Vice-Chancellor Stevenson in Fletcher v. International Association, &c., 55 Atl. Rep. 1077; Vice-Chancellor Pitney in Frank v. Herold, 63 N. J. Eq. 443; Vice-Chancellor Reed in Cumberland Co. v. Glass, &c., Association, 59 N. J. Eq. 49, and Vice-Chancellor Green in Mayer v. Journeymens Association, 47 N. J. Eq. 519.

The trend of legislation indicating the popular will is in the same direction. Thus we have the act of 1883 (at p. 36, Comp. Stat. 2344) entitled “An act relative to combining and encouraging other persons to combine,” which makes it not unlawful for persons “to persuade, advise or encourage by peaceable means any person or persons to enter into any combination for or against leaving or entering into the employment of any person, persons or corporation.” This act was held in the Jonas Glass Company Case to relieve such an act of the character of a conspiracy, so as to be the subject of indictment, but was held to afford no justification for an illegal attack upon the property of another. The so-called “Clayton act” (U. S. Stat. 38 chap. 323 L. 1914 §§ 20, 38; Barnes Federal Code; § 7963) is to the same effect, and it is therein declared inter alia: “Nor shall such organizations or the members thereof be held or construed to be illegal combinations or conspiracies in restraint of trade under the anti-trust laws.”

President, now Chief-Justice Taft, when sitting as United States circuit judge in Phelan's Case, 62 Fed. Rep. 803, declared: “The employes have the right to organize into or join a labor union which would take action as to the terms of their employment. The officers they appoint, or any other person they choose to listen to, may advise .them as to the proper course to be taken in regard to their common employment; or if they choose to appoint any one, he may order them, on pain of expulsion, from the union, peaceably to leave the employ of their employer because any of the terms of the employment are unsatisfactory.”

This recital of a sensible, constitutional, legal rule of action in these industrial disputes requires no explanation and no illumination, and, obviously, eliminates the necessity for a more definitive expression upon the subject, either for-courts or litigants.

The recent adjudication by the United States supreme court in the Tri-City Central Trades Council Case, referred to in the majority opinion, simply elaborates and elucidates this conception of a sensible and constitutional role, declared by the writer of the opinions in both cases.

The conclusion we1 have reached in this case, it will be observed, but serves to mark another step' in the cycle of judicial legislation which, beginning with an appropriate effort to curb agitation of a forceable character, has concluded with an edict which will be construed to put an end to peaceable and constitutional economic agitation. Thus, in Brennan v. United Hatters, 73 N. J. Law 749, ignoring constitutional limitations peculiar to American government, and basing our conclusion upon a line of English cases, evolved from class conditions, in a land where no constitutional limitations exist, we conceded that the feudal right of property in the man, and! his labor, still subsists in the hands of a master. The logical effect of .that enunciation has been to prevent by injunction an organization of workingmen (1) from interviewing their co-laborers on the way to work, or in their homes, or “in the neighborhood” of the plant; (2) from walking or parading on the public streets “in the neighborhood” of the plant; (3) from visiting co-laborers in their homes or contributing to a fund to sustain indigent or sick agitators, or from contributing to' a fund to continue a strike; (4) from loitering on the streets “in the neighborhood” of the plant, and (5) by this adjudication from hiring a public hall and there publicly discussing a workingman’s grievances; and thus we have Prometheus bound.

Nothing further would seem to be necessary to complete the chaplet of judicial legislation, unless it be the invocation of the provisions of the statute of laborers (23 and 24 Edw. III), under which the laborer was effectually conscripted to the sendee of the master, and to that end was hounded as a helot and labeled with the brand of Cain.

In every other walk of life the peaceful activities condemned by these adjudications are .quiescently tolerated, if not approvingly recognized.

In an age when the workingman occupied the legal status of a villain or serf, and thus became an appurtenance of the freehold, the legal procedure invoked here was neither impracticable nor unworkable; but in an age of popular enlightenment and in a social order where men are theoretically free and equal, and occupy a legal status of sovereignty, in which schools, libraries and the daily press liberally disseminate an education which fructifies in an enlightened manhood, regardless of avocation, the duration of such an archaic system may be estimated by the passive willingness of an enlightened electorate to tolerate it. For, it is indubitable as a philosophic deduction from the progress of law, as well as from the progress of mankind, that an artificial legal status which thus attempts to environ human endeavor, instead of palliating an existing evil will, deplorable as it may seem, inevitably operate like the deliverance in the Dred Scott Case, to precipitate a popular demand for a radical remedy; and the danger of it is, as history attests, that in the evolution “the man with the hoe” very often assumes the not inconspicuous role of a Samson manacled in the temple.

The decree appealed from, so far as it seeks to enjoin the two appealing defendants- from exercising the right of free speech in a public hall, should be reversed.

For affirmampe — Swayze, Parker, Bergen, Kalisch, Katzenbach, White, Williams, Gardner, Ackerson — 9.

For reversal — The Chiee-Justice, Trenchard, Minturn, Black, Van Buskirk — 5.


author: Swayze, J.

text:
    Margaret Patterson, complainant, v. J. D. Loizeaux Lumber Company, a corporation, et al., defendants.
    [Decided March 6th, 1922.]
    1. Where the contract of sale of property to a married woman required her to give a. mortgage for the purchase price, which she could not do without her husband joining, the wife does not show ability to perform where the husband did not join in the bill for specific performance, and profess his readiness to execute the mortgage.
    2. In a suit for specific performance of a contract for sale of land to the complainant, evidence held to show that the complainant, while in default in making the payments called for by the contract, knew that the vendor was attempting to sell the property to others, and expressed no objection to the proposed sale, so that the contract was abandoned, and she was not entitled to specific performance, especially where specific performance would require the vendor to accept a vendor’s lien instead of the mortgage called for in the contract.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in 92 N. J. Eq. 569.

      Mr. Robert Neiaton Crane, for the complainant.

      Mr. William Newoom, for the defendants.
   The opinion of the court was delivered by

Swayze, J.

This is a suit so called for specific performance. The only question is a question of fact as to which we have unfortunately reached a different conclusion from the vice-chancellor.

The contract was made by letter on February 4th, 1920. A foreclosure was then pending to perfect the title. The contract was that Mrs. Patterson should pay $30 a month until the Loizeaux Lumber Company was able to give a free and clear title. She agreed to pay them $3,700 as soon as they were able to do this. Three thousand dollars was to be raised by first mortgage on the property; $700 in cash which she was to raise by second mortgage. Apparently, she expected to raise the $3,000 on first mortgage of some third party, but this proved impracticable and finally the defendants agreed to accept her mortgage for $3,000 in lieu of that much cash. Notice was subsequently given to her that the defendants were ready to close the matter. She was, however, unable to do so and from time to time received an extension, the relations between her and the wife of Mr. Loizeaux being veiy cordial. The defendants continued urging her to comply with the contract until July, and thereupon there was correspondence, which, we think/clearly amounted to an abandonment of the contract. Meantime she was in possession of the property and was getting behind in her rent. On July 2d she wrote for a further extension of time, enclosing the June rent. On July 9th they wrote her that as no arrangements had been made about the property they were offering it for sale, as she had not completed her arrangements as she had expected, and they inquired when they could get possession. There had been inquiry at her house about the particulars as to its purchase and Mrs. Patterson explained that the purchase could hardly be called a purely business matter; that the purchase price verified that and that the defendants could have gotten a very much larger amount for the property than they were selling it to Mrs. Patterson for; that Mr. Loizeaux had been unusually kind and patient. She added that s'he was going to get the money of a Mr. Tebbs, and that her husband had called on Mr. Teb'bs the evening before and learned 'that he would have the necessary amount on Thursday night and that she would immediately call with it, again repeatedly thanking Mr. Loizeaux for his kindly interest. To this the defendants replied that they understood that the necessary amount would be given to Patterson by Tebbs on Thursday evening, and that he would immediately call at the office and that this was satisfactory. On the 15th then there was a definite date fixed for closing the transaction by agreement of both parlies. Mrs. Patterson, however, did not comply with the modified contract. What took place we can only surmise from defendants’ letter to Mrs. Patterson, stating that as she did not come in the day she was to be in, they offered the house to another party and believed it was sold; thejr added, “if he takes it we cannot go bade on our offer.” Tb this Mrs. Patterson made no objection, but on Friday, July 30th, her husband, as he says, early in the morning, finally secured the necessaiy cash by borrowing it of the trust company; that he hurried to Mr. Loizeaux’» office and tendered him the cash, which Mr. Loizeaux refused to accept. She wrote Saturday morning, July 31st, that her husband called at the office (as we understand the Loizeaux office) Friday afternoon. Mr. Loizeaux denies that he saw Mr. Patterson on that da3r, and, in view of the discrepancy between the time fixed by Mr. Patterson and the time stated by his wife, we think that Mr. Loizeaux’s recollection is more accurate. This is confirmed by another fact; Mr. Loizeaux had offered to return the $100 deposit, although he was under no legal obligation to do so,'and in this letter of July 31st she expresses her gratitude for the return of the money, as she said it was quite an item to her and of little account to him. After July 29th the negotiations terminated; he sold the property to another and she brought this suit for specific performance.

Obviously, she cannot perform. She is under obligation to give a mortgage, and this she cannot do without her husband joining. He does not even join in the bill and profess his readiness to execute the mortgage so as to put his wife in a position to comply with, the contract if in other respects it were possible.

The learned vice-chancellor thought that this difficulty could be avoided by directing that the property be conveyed to her, subject to a vendor’s lien. He recognizes that no time is specified lor the payment of the money, and it by no means clearly appears that the purchaser of the property had notice of her alleged claim. The vice-chancellor’s argument to that effect is far from conclusive; it seems much more probable, especially from the letters, that she had notice that there were prospective purchasers and that Loizeaux was trying to sell the property and she expressed no objection to the proposed sale to others. She did not mention her alleged equitable title until after the conveyance was made to the purchaser and she filed this bill.

Under these circumstances, we think that she has no equitable right under the guise of specific performance to the making of an entirely different contract after she had in effect treated her rights as at an end and had led Loizeaux to believe that he might make the conveyance to another customer.

Let the decree be reversed and the bill be dismissed, with costs, in both courts.

For affirmance — Ivalisch, Ackerson — 2.

For reversal — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Mtnturn, Black, Katzenbaci-i, White, Heppeniteimer, Williams, Gardner, Van Buskirk — 13.


author: Trenchard, J.

text:
    Frances A. Heldhauser, complainant-respondent, v. Charles Schulz, Jr., et al., defendants-appellants.
    [Argued November 16th, 1921.
    Decided March 6th, 1922.]
    1. The proceeds of the sale of real estate made by decree of the court of chancery in a partition suit, retain the character of real estate for the purposes of distribution.

      2. To entitle a wife to dower, the husband must have been seized, either in fact or in law, of an estate of inheritance in the land at some time during the coverture. If the husband have only a reversion or remainder after a freehold estate in another, the seizin is, properly speaking, in that other, and not in him, and, consequently, the wife is not entitled to dower, unless by the death of the intermediate freeholder, or a surrender of his estate to the husband, the inheritance becomes entire in the husband during coverture. And if the husband conveys away his reversion or remainder, either personally or by operation of law, during the continuance of the particular estate for life, his wife thereby loses all claim to dower therein.
    Oil appeal from an order of the court of chancery advised by Advisory Master Bayard Stockton.

      Mr. Frecl G. Sticlcel, Jr., for the appellants.
   The opinion of the court was delivered by

Trenchard, J.

'On August 11th, 1908, Barbara Schulz died intestate, leaving her husband surviving her and certain children and the children of deceased children who liad died in her lifetime.

The bill in this case was filed by one of her daughters and sought either an actual partition of certain real estate in the city of Newark, of which the mother died seized, or a sale thereof, and a distribution of the proceeds among the heirs-at-law.

The suit resulted in a sale of the premises pursuant to a decree, and an order was made for distribution, by the terms of which a. certain part of the purchase-money was ordered paid to Charles Schulz, Sr., the husband of the decedent, and was accepted by him, in lieu of his estate by the curtesy, and the remaining portion thereof was ordered to be distributed among the heirs-at-law in the proportions named in the order, with a provision that these paiunents were not to be made in the case of married heirs-at-law unless their respective wives or husbands signed a consent to such payment in writing, duly acknowledged.

An appeal from that order for distribution was taken by most of the heirs-at-law, but, meanwhile, all of their respective spouses duly consented to payment excepting the wife of Joseph Schulz, a son of the decedent, and we are now concerned with his appeal only.

He insists that he is entitled to have his distributive share paid to him without regard to whether his wife consents or not, and we are of the opinion that his position is well taken.

The proceeds of the sale of the real estate retain the character of real estate for the purposes of distribution. Riley v. Riley, 92 N. J. Eq. 465. Consequently, if the wife of Joseph had no dower interest in the real estate in question, whereof his mother died seized, then as a necessary corollary she had no dower interest in the money derived from the sale thereof.

We think she had no such dower interest.

It is of course apparent that Charles Schulz, Sr., widower of Barbara Schulz, deceased, -had an estate by the curtesy in the premises in question, which was an estate in freehold for -the term of his natural life. It is also clear that such estate cdntinued and remained in him up to the time of sale, and that their son Joseph (the appellant) was never seized of anything more than an estate in remainder after the particular life estate of'-his father.

We come now to the- consideration of the rights of the wife of Joseph, son of the decedent, in view of-the fact that he was seized of a remainder interest only.

To entitle a wife to dower the husband must have been seized, either in fact or in law, -of an estate of inheritance in the land at some time during the coverture. This rule is inflexible. If the husband have only a reversion or remainder after a freehold estate in another, the seizin is, properly speaking, in that other and not in him, since he has never had either possession or any present right of possession, and he cannot be said to have had a seizin of any sort, either actual or legal, and, consequently, the wife is not entitled to .dower, unless by the death of the intermediate freeholder, or a surrender of his estate to the husband, the inheritance became entire in the husband during coverture. And if the husband conveys away his reversion or remainder, either personally or by operation of law, during the continuance of the particular estate for life, his wife thereby loses all claim to dower therein.

That such is the undoubted rule will be seen by an examination of the cases cited in Tiff. Real Prop. 755 § 217, and Washb. Real Prop. 169 § 365. A well-considered case exactly in point is Durando v. Durando, 23 N. Y. 331. The case of Cummings v. Cummings, 76 N. J. Eq. 568, upon which the learned advisory master may have relied, is not in point, for there the husband, before marriage, being seized of the fee, granted a life estate only, and the question considered was whether he remained seized of an estate of inheritance so as to entitle his widow to dower, although he died before the determination of such life estate.

The application of the rule stated to the facts of the instant case results in the conclusion that the wife of the appellant had no dower interest in his distributive share, and, hence, the order of distribution, in so far as it required her consent to the payment thereof, was erroneous.

The order will be reversed for the purpose of such modification.

For affirmance — Parker, Bergen, Kalisch, Williams — 4.

For reversed — The Chiee-Justice, Swayze, Trenchard, Minturn, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk — 10.