author: Backus, V. C.

text:
    Emil Hauser et al., complainants, v. Kraeuter & Company, Incorporated, defendant.
    [Decided May 29th, 1925.]
    Where great industrial works are segregated in an appropriate locality, and are circumspectly carried on, during working hours, noise, characteristic of the enterprises, must be endured by those who by choice or of necessity live in the vicinity.
    Oil bill, &C.

      Mr. Harry A. Augenblich, for the complainants.

      Mr. Merritt Lane, for the defendant.
   Backus, V. C.

Kraeuter & Company are tool manufacturers in Irvington. Their forge shop contains twenty-eight drop hammers, varying in size from four hundred to two thousand pounds, falling weight. The noise from the hammers is claimed to be a nuisance to habitation. Vibration is also charged, but it is established that, sensibly and materially, there is none. The noise is of the intensity to be expected from a dozen and more heavy drop hammers, all in action. That the complainants, and complaining witnesses called by them, are annoyed and distressed in their homes there can be no doubt. Nor can there be any question that their non-complaining neighbors, some living in as close and others in closer proximity to the source, are not bothered, and suffer no inconvenience. The difference, in effect, is apparently due to difference in temperament, physical and nervous condition, and the circumstances under which the noise is experienced. The factory, with present methods, has been in operation since 1917. It is in a locality which for many years has been devoted to foundries, smelters, forges, saw mills, railroad yards, mills and elevator factories', stove and range factories and the like, and which long has been known as “Enterprise Hill.” The industries are contiguous. This mill center was recently zoned by the municipality for heavy industries, and while the municipal action is not influential, it is indicative of the character of the neighborhood. The locality was promoted industrially before the coming of the houses now surrounding the mill section, which, mostly, are of the type usually found in factory districts, and, as a rule, are occupied by the families of workers. The case is not one of factory invasion of a residential neighborhood, but, one where the defendants were invited by the industrial character of the place, dedicated to heavy industries, to locate their plant, and where the prospect held out, as it were, assurances of immunity from complaint of discomfort customary from mill and factory annoyance.

Where great industrial works are segregated, as they are here, in an appropriate locality, and are circumspectly carried on, during working hours, noise, characteristic of the enterprises, must be endured by those who by choice or of necessity live in the vicinity. It is unfortunate that such dwellers are denied the comforts afforded in communities more remote from factory districts, but their misfortune in this respect is purely social, not legal, and not cognizable in equity. The maxim “So use your own as not to injure another” is not infringed in such neighborhoods, if the business is not a nuisance per se, or the noise is not greater than ordinarily comes from carefully carrying on a lawful trade. That the noise from the defendant’s factory is greater and more constant than that which comes from other noisy plants in the group, and possibly is the major contributor to the concert of noises coming from the mill section, is not a distinction that makes for the extinction of their works, as a nuisance, if the noise is no more than necessarily made in cautiously conducting the business. It is conceded that the noise is not inconsistent with the nature of the works, and it may be added that the works are perfectly consistent with the surroundings. Equity is always reluctant to interfere on the ground of nuisance with a lawful trade lawfully carried on, and it would have to be an annoyance of exceptional aggravation to move the court to enjoin an industry in a factory district at the instance of householders adjacent to the district. It would seem that in such surroundings the maxim is more nearly apposite as between factory owners than as between them and neighboring dwellers. Wallace & Tiernan v. United States Cutlery Co., 97 N. J. Eq. 408; 3 N. J. Adv. B. 1904. This is borne out by the present-day policy of governmental segregation of manufactures in our larger municipalities, and it must be regarded as the accepted rule, in the spirit of the age of -briskness activity and in the interest of public welfare, that the householder in and near industrial centers subordinates himself and submits to the discomforts incident to industrial life.

An injunction restraining the defendants would inflict upon them an irreparable loss; it would result in the closing of their factory and the destruction of their business, involving an investment of $300,000 and the withdrawal from commerce of an annual turnover of a million and a half of dollars. The judgment, however, is not rested on the weight of inconveniences (Hennessy v. Carmony, 50 N. J. Eq. 616), but upon the pure equities of the case, which find support in the wealth of literature on the subject, of which some is to be found in Wolcott v. Melick, 11 N. J. Eq. 204; Cleveland v. Citizens Gas Light Co., 20 N. J. Eq. 201; Duncan v. Hays & Greenwood, 22 N. J. Eq. 25; Gilbough v. West Side Amusement Co., 64 N. J. Eq. 27; Seligman v. Victor Talking Machine Co., 71 N. J. Eq. 697; affirmed, 72 N. J. Eq. 946; Reilley v. Curley, 75 N. J. Eq. 57; Kroecker v. Camden Coke Co., 82 N. J. Eq. 373; Chambers v. Walker, 33 N. J. L. J. 23; Straus v Barnett, 140 Pa. 111; Eller v. Koehler, 68 Ohio St. 51; 67 N. E. Rep. 89; Hafer v. Guynan, 7 Pa. Dist. R. 21; Gilbert v. Showerman, 23 Mich. 448; Lindblom v. Purity Ice and Refrigerating Co. (1920), 217 Ill. App. Rep. 306; Lohmuller v. Samuel Kirk & Son Co., 133 Md. 78; Huckenstein's App., 70 Pa. 102; Rushmere v. Polsue & Alfieri, 1 Ch. L. R. (1906) 234-

The complainant has not made out a case of nuisance which calls for the drastic remedy by injunction, and the bill will be dismissed.


source: Caselaw Access Project

author: Bucitanan, Y. C.

license: Public Domain

text:
    The Bible Readers' Aid Society of Trenton, New Jersey, et al., complainants, v. Edward L. Katzenbach, attorney-general, defendant.
    [Decided April 2d, 1925.]
    1. A valid trust for charitable mid religious purposes may be created by donors who form themselves into a corporation for such purposes, under the laws of this state, and contribute or donate funds to the corporation; and such trust may he established, enforced, preserved and protected in the court of chancery.
    2. Such a public charitable or religious trust being established, the court may discharge the trustee and appoint a substituted trustee to carry out the trust.
    8. In a proceeding involving a public charitable or religious trust the attorney-general (representing the publjc or that portion of the public interested as beneficiary) is a necessary party, but need not be complainant.
    4. By P. L. 3903 eh. $13, every corporation of this state lawfully organized for religious, educational, charitable or benevolent purposes is authorized and empowered to take and hold property in trust for any religious, educational, charitable or benevolent purpose whatsoever ; lienee, every such corporation has the legal capacity to act as substituted trustee for any such religious, educational or charitable trust.
    5. A trustee of such a trust, applying for discharge, is under the duty of accounting to the satisfaction of the court or of the beneficiaries of the trust.
    On final hearing.

      Mr. Edward 31. Hunl, for the complainants.

      Mr. Edward L. Jiaizonbach, attorney-general, pro so.

   Bucitanan, Y. C.

This is a bili by the Bible Readers’ Aid Society of Trenton, New Jersey (hereinafter denominated B. R. A. S.), and the Young Women’s Christian Association of Trenton, New Jersey (hereinafter denominated Y. W. C. A.), for a decree discharging the B. R. A. S. from the trusts in that behalf named in the bill assumed and carried on by it, and appointing the Y. "W. O. A. as substituted trustee to execute and carry on, those trusts.

The attorney-general is a necessary party because the trusts mentioned are public ones for charitable purposes, and the attorney-general, representing the public, is charg-ed with the duty of caring for and protecting the same. The general practice has been for the attorney-general to file the bill either of his own motion or on the relation of some party interested, but where the interested parties, present the bill and make the attorney-general a defendant, the proper parties are before the court, and it is immaterial that the attorney-general is defendant instead of complainant. Lanning v. Commissioners of Public Instruction, 63 N. J. Eq. 1 (at p. 8).

The court of chancery has original and inherent jurisdiction over trusts, their establishment, enforcement, protection and preservation. Trusts which are voluntary in their creation—that is, by way of gift, are jnst as valid and enforceable as trusts created in exchange for consideration. Indeed, the great majority of express trusts come within the former category. So, also, a valid trust may be created, though the donor himself he the trustee-. Eaton v. Cook, 25 N. J. Eq. 55 (at p. 58); 39 Cyc. 66, 77. The fact that the purposes of the trust are hut generally and not definitely set forth, or that the beneficiaries are indefinite in person or number, will not, ordinarily, prevent the trust from being established and enforced, where the trust is a public or charitable one. McKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652 (at pp. 665, 666.)

In the present case the complainant B. R. A. S. was ineorported under the “Act to incorporate benevolent and charitable associations” (P. L. 1875), and continued under the “Act to> incorporate- associations, not for pecuniary profit.” P. L. 1898 p. 122 § 13. Under the act of 1875 the objects for which the B. R. A. S. was incorporated are inter alia,:

“To promote religion by local missions or Sunday schools, and other charitable purposes, as may be provided for in the constitution and by-laws of such incorporation, and to .provide su-cli necessary expenses as shall accrue by carrying into effect the objects herein set forth.”

And under its by-laws:

“The object of this society is twofold—first, to interest the poor in the Bible by reading it to them and earnestly laboring for tlieir spiritual welfare; second, to improve their temporal condition by teaching them to help themselves, also to look after the interests of the children of this class.”

It is obvious, therefore, that the property of the society, which it has acquired by donation or contribution from its members, is held by it in trust for the religious and charitable purposes specified, and that the society is a trustee of a religious and charitable public trust.

That tire trust is one, therefore, which may be established, enforced and protected in this court, is, I think, beyond question.

Jurisdiction being had by this court, the powers exercisable under that jurisdiction are extremely broad and comprehensive, and, of course, include the powers of discharge of a trustee and the appointment of a new trustee in substitution. The power of discharge will be exercised when an individual trustee desires discharge because of multiplicity of business or infirmity of age or the like. Lanning v. Commissioners of Public Instruction, supra (at p. 6). Or even where the trustee is merely unwilling to act further. Green v. Blackwell, 31 N. J. Eq. 37. The reason in the present case is analogous, to age and infirmity in an individual trustee; the society membership has been reduced to' only a few persons, and they of advancing years.

It is the duty of the court, in appointing a new trustee for the preservation and continuance of the trust, to see to it that such appointee is a fit and proper person in that behalf. Where the proposed new trustee is a corporation it should appear inter alia that the corporation is properly equipped, or can and will so equip itself, to carry out the trust; that it has taken proper corporate action, expressing its consent to accept the trust, and that it lias the requisite legal capacity and qualification. In the instant case all these appear. Some doubt arose originally upon the score of legal capacity, since the Y. W. C. A. was incorporated “'for the spiritual, intellectual, social and physical development 'of young women,” which, as will be observed, varies considerably from the objects and purposes of the B. R. A. S. (and, therefore, of the objects and purposes of its trust) hereinbefore recited. The provisions of the statute enacted by the legislature (P. B. 1905 ch. 213 p. 384.), however, seem sufficiently broad and comprehensive to set all such doubt at rest.

By that act every corporation of tliis state organized for religious, educational, charitable or benevolent purposes (the Y. W. C. A. comes, within this category) under any statute of this states general, special or private, is authorized and empowered to take and hold in trust for any religious, educational, charitable or benevolent purposes whatsoever, such property as may be conveyed to' it for any of such purposes.

No detailed accounting has been submitted by the B. E. A. S. The bill prays that an account may be taken of the trust property. An accounting by a trustee seeking discharge is a natural requisite to' such discharge, .although such accounting may, of course, be waived by the beneficiary of the trust. The principle applies as well to cases of public or charitable trusts as to. private trusts.. In the present case the proofs already taken include proofs of a substantial, general nature accounting for the property in the hands of the trustee', and the attorney-general is satisfied with such proofs in that behalf, so- that I deem it unnecessary to' direct the stating or taking of a formal accounting.

A decree will be advised establishing the trust, discharging the B. E. A. S. as trustee, appointing the Y. W. C. A. as substituted trustee', directing the conveyance and assignment of the trust property from the old to the new trustee to' be held and administered by it upon the same religious and charitable trusts, and directing the new trustee to file an inventory in this court in this cause of the property so received by it. The costs of the proceeding are payable out. of the corpus of the estate.


author: Buchanan, Y. C.

text:
    Rosina Pennello, petitioner, v. Joseph Pennello, defendant.
    [Decided April 2d, 1925.]
    1. Where a wife, seeking decree of nullity of marriage for the cause of non-age, deserts her husband domiciled in another state and comes to this state without his consent and without conduct by the husband sufficient to entitle her to decree of divorce or sepai'ation, she is not domiciled in this state, notwithstanding her residence here animo manendi, and this court is without jurisdiction.
    2. Where a wife, otherwise entitled to decree of nullity of marriage for the cause of non-age, contracts and consummates a second marriage in the honest belief that the first marriage was not a valid marriage, qumre, is she thereby barred from relief?
    On exceptions to master’s report.
    10\ Joseph J. Felcone, for the petitioner.
   Buchanan, Y. C.

The petition is for annulment, under section 1, subsection 5 of the Divorce act—petitioner having married defendant at the age of fifteen years and four months, and not having confirmed the marriage after attaining the age sixteen.

It appears from the evidence before the master that the marriage was performed by a civil magistrate, and that it was never consummated; the wife says that she did not regard it as a binding marriage, but only as an engagement, that that is what she was told it was, and that such is in accordance with the Italian understanding and custom which requires a civil marriage to be followed by a religious ceremony; that the ceremony or engagement was had at the insistence of her mother. The husband was twenty-nine years of age—nearly double the age of petitioner. She continued to live with her mother, and, finally, after about two years, ran away and was married, in Trenton, to Antonio Stilitano, with whom she lived as husband and wife— one child being born to them, and still living—until her mother ascertained her whereabouts and caused her arrest on a charge of bigamy. No indictment was found by the grand jury. The wife sa3rs that until that time she did not know that the first marriage was binding; that immediately, she and Stilitano separated and have continued to live separately ever since, although he has supported her and the child.

The master finds and reports as true the allegation of nonage and of no confirmation of the marriage, but reports adversely to the decree on the ground that she comes into court with unclean hands, having committed adultery with Stilitano.

He also calls attention to the fact that there was no corroboration of petitioner’s testimony as to residence, although he finds and reports that at the time of filing the petition she was a bona fide resident of this state, which is a juris.dictional requirement under section 5 of the statute. .

He does not report any findings as to petitioner’s belief that the marriage was not binding, and, hence, no bar to her subsequent marriage to Stilitano, although in a prior report, on a preliminary reference as to petitioner’s having leave to prosecute in forma pauperis, he states that he is satisfied that the second marriage was made in good faith under the belief that there had been no marriage with Pennello.

I am not prepared to say that the marriage and living with Stilitano, if occurring in good faith and under the belief that there had been no marriage with Pennello, is sufficient to deprive petitioner of the right to annulment. It must be regarded as settled, I take it, since the opinion of the court of errors and appeals, in Tyll v. Keller, 94 N. J. Eq. 426, that the maxim of unclean hands and the maxims cognate thereto are applicable to, and will be invoked by the court » sponte, in suits for annulment upon whatever ground brought. But the maxim of unclean hands is not one capable of exact delimitation. Ordinarity, at least, to justify or neces.sítate its application, some element of moral turpitude on the part of the suitor must appear. In Rooney v. Rooney, 54 N. J. Eq. 231, where the husband was suing for annulment of a second marriage induced by his false and fraudulent representation to defendant that he had no prior wife living, this element is strikingly apparent.- It was also present, though in a lesser degree, in Tyll v. Keller, supra, where the husband sought annulment of a marriage with a woman whom he knew to have been previously married to a man still living, and failed to show that he had reasonable ground for believing the prior marriage to have been dissolved.

I deem it unnecessary to determine this question, for the reason that I think the petition must be dismissed on jurisdictional grounds. Numerous instances of cases more or less analogous to the present ease may be found in Gordon v. Gordon, 141 Ill. 160; Pratt v. Pratt, 157 Mass. 503, and Darrow v. Darrow, 159 Mass. 262, showing the conflict of opinion as to the application of the maxims mentioned.

On the jurisdictional question, if it were a mere matter of insufficient corroboration of petitioner as to the facts of her residence in this state, animo manendi, it is probable that that was an inadvertent omission, and I doubt not could readily be supplied if leave were granted in that behalf. But the defect is much more serious than that.

It appears that the marriage took place in New York, and that both petitioner and defendant were domiciled at White Plains, in New York, both before the marriage and after the marriage, living in the home of petitioner’s mother until the petitioner ran away to New Jersey. The mother and defendant still live there. Presumably, petitioner’s father lives there too; it appears that he there signed consent to the marriáge in 1921, and there is no proof or intimation of Iris death or removal.

The circumstances are very similar to those in Blumenthal v. Tannenholz, 31 N. J. Eq. 194, where this court denied its jurisdiction of a suit brought by an unemancipated minor, whose parents were domiciled in Canada, for annulment of marriage on the ground of fraudulent misrepresentation by the defendant, and in that case the marriage had been performed in this state. The court held that the legal domicile of the complainant was that of her father, Canada, and that complainant’s actual residence in this state for eighteen months did not operate to change it, and that since the husband was not domiciled here, this court was without jurisdiction.

So, in the present case. Petitioner was a minor when she commenced this suit, and still is. There is no evidence of emancipation, other than the consent to the marriage in question. If it be considered that there is insufficient proof of change of status by valid marriage, lrer domicile is still legally that of her parents—New York—and under the authority of the Blumenihal Case, the defendant being also “domiciled in New York, this court has no jurisdiction. If it be considered that there is sufficient proof of change of status by valid marriage, her domicile became that of her husband—-New York. It so continued during coverture unless she acquired a separate domicile elsewhere by her husband’s consent or because of matrimonial offense by the husband. Rinaldi v. Rinaldi, 94 N. J. Eq. 14; approved in Floyd v. Floyd, 2 N. J. Adv. R. 638 (at p. 641); 95 N. J. Eq. 661.

It will be observed that the marriage is voidable only, not void; it is valid, and coverture continues unless and until decree of nullity be pronounced. The husband did not consent to her acquiring a domicile in New Jersey, nor did he commit any matrimonial offense. She deserted him. In Jimenez v. Jimenez, 93 N. J. Eq. 257 (at p. 261), the chancellor raised the doubt whether, under such circumstances, a wife could acquire a domicile here to enable her to sue for annulment of a voidable marriage. In the Rinaldi Case, supra, which was a nullity suit on the ground of non-age, brought by a wife living in New Jersey but whose matrimonial domicile was New York, where the husband still lived, the chancellor settled that doubt adversely to the present petitioner, holding (at p. 19) that she could acquire a domicile separate from that of her husband only by her husband’s consent or by conduct on his part such as would constitute cause entitling her to decree of divorce or judicial separation. It would seem clear that the Floyd Case, supra, contains an express affirmation of that determination (at pp. 640, 641).

There is nothing in the proofs in the present case even intimating that any circumstances existed giving the petitioner justifiable cause for leaving her husband; the proofs do show that the leaving was without his consent. She has not acquired a legal domicile in New Jersey, and this court is without jurisdiction.

The petition will be dismissed on that ground. This will not deprive her of the opportunity to seek relief in the courts of New York.


author: Buchanan, A. C.

text:
    George M. Lamonte et al., complainants, v. Liberatto Orlando et al., defendants.
    [Decided June 1st, 1925.]
    1. Restrictive covenants comprising a general scheme for the benefit of the neighborhood create an equitable servitude enforceable against a grantee who takes with notice thereof, notwithstanding such covenant was inadvertently omitted from the deed to such grantee or his predecessors.
    2. The rule that suits for the enforcement of such restrictions must be brought promptly is based on the principles of acquiescence and estoppel; the test is whether complainant has acted with reasonable promptness under the circumstances.
    3. Where complainant serves defendant, within a few days after notice of his commencing to violate such restriction, with notice of protest and warning of suit, and commences suit one week thereafter, he is not guilty of undue delay, no other special circumstances appearing.
    On final hearing.

      Mr. Daniel E. Beehman, for the complainants.

      Mr. Robert Newton Crane, for the defendants.
   Buchanan, A. C.

Complainants, in 1916, laid out and mapped and plotted fox sale for building lots two tracts of land at Bound Brook (called sections 1 and 2), and adopted a scheme of restrictive covenants for the benefit of such lots or tracts. The lots were sold at auction, and the restrictions were advertised in the advertisements of sale, and were also read by the auctioneer at the sale, as a part of the conditions of sale, and were included in the printed conditions of sale signed by each purchaser, reading as follows:

“Buildings. Except upon lots abutting Talmage avenue, no buildings shall be erected within twenty feet of the line of any street or avenue, but upon Talmage avenue buildings may be erected up to the property line. These conditions shall run for a period of twenty years. No hotel, saloon or business for the- sale of liquor in any way or manner shall ever be conducted on these premises.”

The exception as to Talmage avenue lots is not involved in the present suit, which has reference to the lands in section 2—Talmage avenue evidently being in the other tract, section 1. There are some sixty-five lots in this tract, of which five front on Vosseler avenue and the others on High street and Second street.

The same restrictions were placed as restrictive covenants in the deeds of conveyance to the purchasers (except in one instance later to be mentioned), together with a further provision that the covenants should enure to, and be enforceable by, the owners of adjoining or neighboring lots, as well as by the grantors (complainants).

There was therefore a general neighborhood scheme for the benefit of the owners of lots on this section 2 tract. DeGray v. Monmouth Beach, &c., Co., 50 N. J. Eq. 329 (at p. 338); Morrow v. Hasselman, 69 N. J.. Eq. 612; Sanford, v. Keer, 80 N. J. Eq. 240. Complainants are suing as (/uasi-trustees for the benefit of their other grantees. The suit is against defendant, the present owner of lots 53 and 54 on the tract, to restrain him from building within twenty feet of the line of Second street. He has commenced to build within about two feet of such line. He bought the lots from one Martin Stashak, who bought from complainants at the auction sale. Stashak signed conditions of sale containing the restriction hereinbefore set forth, but by inadvertence the proper restrictive covenant was not incorporated in his deed—there being instead a restrictive covenant applicable to an entirely different tract of complainants. (The deeds were on printed forms, and, obviously, the deed to Stashak was drawn on the wrong form.) The deed from Stashak to defendant recites that it is “subject to the covenants and restrictions” in the deed from complainants to Stashak.

It is not denied that defendant intended and commenced to build within the restricted area. The only defenses set up by the answer or by argument at the final hearing are—(1) that defendant cannot be restrained because there is no covenant in his deed or his predecessor’s deed; (2) that there have been numerous prior breaches of the covenants by others, so that the covenants are no longer enforceable in equity, and (3) delay in the attempt to enforce.

That the restrictive covenants are not in the deed to defendant or to defendant’s grantor is no defense if defendants had knowledge or notice otherwise. Winslow v. Newcomb, 87 N. J. Eq. 480 (at p. 484), and cases cited; Shoyer v. Mermelstein, 93 N. J. Eq. 57. The case of Sjoblom v. Mark, 103 Minn. 193, relied on by defendant, would be of no weight as against these authorities in our own state; moreover, that decision in nowise contravenes the principles above stated.

The present case is far stronger than either the Shoyer Case or the Winslow Case, because the- present defendant admitted in his testimony that he himself had bought lots on this very tract at the same auction sale, and knew all about the restrictions long before he bought the lot from Stashak. He does not even say that he believed when he bought the lot from Stashak that he could build without regard to the restriction. On the contrary, it clearly appears that his first idea that he could build within the restricted .area was several months after he bought the lot, when (as he says) he was told by the building inspector of Bound Brook that if he built a house he'would have to build back twenty feet, but if he built a store he could build up as close as two feet. Accordingly, he commenced to build a store close up to the line.

Assuming that the building inspector did tell him this (there is no corroboration) it, of course, affords no justification for his conduct—no ground to refuse enforcement of the neighborhood scheme. It may well be that defendant (who is a foreigner) was misled by the borough official and his own ignorance—that he acted in good faith—but his mistake is in nowise chargeable to complainants or to any of the neighboring lot owners.

As to the second defense—-defendant has failed to prove it. I am satisfied that there has not been a single violation of the twenty feet building line restriction, or any other of the restrictions on the tract. It may be noted here that defendant’s counsel seems (from the pleadings and proofs) to have had the idea that the erection or maintenance of a store on the tract in question was a violation of the covenant. There is no such restriction in the scheme, the only business prohibited is the sale of liquor. The fact that some houses are back more than twenty feet is, of course, not a violation.

The third defense also fails. The cases in which delay in bringing suit has been held to bar complainants’ right to relief fall into two classes—(1) where the delay amounts to; or is evidence of, acquiescence; (2) where the delay, coupled with the other circumstances, -erects an estoppel.

In the present case there is, of course, no question of delay amounting to acquiescence. Defendant commenced his building iir the early part of April. Several of his neighbors protested as soon as they saw the cellar being dug in the restricted area. The time of these protests is fixed as on Saturday and Sunday, which would be April 5th and 6th. Mr. Beekman, complainants’ attorney, says he noticed the cellar being dug in the early part of April, and lie served notice on defendant, warning him not to proceed with violation of the restrictions or suit would be brought. Defendant says he got this notice “a day or two after I started work.” Obviously, there was no unreasonable delay on the protest and notice.

Complainants’ bill was filed just one week later, April 15th, with affidavits, and an order to show cause, with interim restraint, was made on that day. Copies of the bill, affidavits and order to show cause were served on defendant on the same day. It is difficult to see how more speedy action could be asked, reasonably. Complainants, reasonably, could not be required to proceed with suit before ascertaining if defendant intended to proceed in defiance of the notice. It must not be forgotten that the defendant was the wrongdoer (even if he were not acting in bad faith), and that unreasonably stringent requirements as to celerity in bringing suit are not to be imposed on complainants who are innocent and injured parties, no matter how much monejr defendant, may spend in the interim after notice and warning. I find no negligence or improper delay by complainants, and, hence, no estoppel. A similar decision may be -found in Heyniger v. Levinsohn, 87 N. J. Eq. 471; affirmed, 88 N. J. Eq. 341, where the interim between knowledge of violation and notice was four or six days, and bill filed five days after notice served.

Complainants are entitled to decree for enforcement, with costs.


author: Church, Y. C.

text:
    James R. Nugent, complainant, v. James King et al., defendants.
    [Decided April 20th, 1925.]
    1. Where one has paid taxes on wild lands for more than five years, he may maintain a bill to quiet title of these lands, but such payment does not .prove adverse possession of these lands.

      2-, Evidence examined and held that there has been no adverse possession on either side, and that, according to the meagre records, the complainant in this suit is entitled to partition of two-thirds of the four-acre tract, and the Marcus L. Ward Home is entitled to one-third thereof, with proper allowance for taxes paid by it on the whole tract.
    On bill, &c.

      Mr. J ames R. Nugent, for the complainant.

      Mr. Howard F. Kirie, for the descendants of HarmonusSpear.

      Messrs. Colie & Colie, for the Society for the Relief of Widows and Orphans of Medical Men of New Jersey.

      Messrs. Pitney, Hardin & Sleinner, for the Marcus L. Ward Home for Aged and Respectable Bachelors and Widowers.
   Church, Y. C.

This is a bill for partition of two tracts of land on the Newark meadows, one four acres and one six acres. The right to partition six acres is undisputed. Answer has been filed by the Marcus L. Ward Home for Respectable Bachelors, &c., claiming possession of the whole four acres. They rely primarily on the 1901 amendment to section 1 of the act to quiet title, which reads as fallows:

“* * * and whenever any lands within this state shall not, 'by reason of their extent or by reason of such lands being wild lands or wood or waste or uninclosed or unimproved lands, be in the actual peaceable possession of the owner or person claiming to own the same, the owner or person claiming to own the same in fee under a deed or other instrument, duly recorded within this state, who shall have paid the taxes upon such lands, and to whom or to whose grantors the taxes upon such lands shall have been assessed for five consecutive years immediately prior to the commencement of suit, shall be presumed to be in peaceable possession of such lands within the meaning of this act; provided, no other person be in possession thereof; and it shall be lawful for such person so presumed to be in possession to bring and maintain a suit in chancery to settle the title of said lands and to clear up all doubts and disputes concerning the same, and such person so presumed to be in possession shall be entitled to all the benefits of and subject to all the provisions of this act.”

The Home claims, that under this amendment, having paid the taxes on this property for over five years preceding the filing of its counter-claim, it is entitled to the whole four-acre tract by reason of adverse possession.

As I read this clause, it seems to me that all this section means is that, whatever taxes have been paid on wild lands for more than five years, the one paying them may maintain a bill to quiet title, but that does not mean, in my opinion, that this adverse possession is proved. It only gives him the right to come in and attempt to prove his adverse possession.

Claim has been made, on the other hand, that in a bill to quiet title the one filing it must be in peaceable possession, and this has been violated, because when the answer was filed there was already a bill for partition, and, therefore, that the home was not at the time it filed its answer in peaceable possession.

Without deciding this question, let us consider what rights the defendant has under the answer, admitting that it will stand. There has been some testimony before me on both sides of a rather vague and uncertain character as to adverse possession, not sufficient, in my mind, to establish title in either party, because I am of the opinion that the mere fact that taxes were paid even on wild lands, under the cases, is not sufficient to establish adverse possession.

The question then arises as to what the record title as far as it goes shows, and what the rights of the parties are under it. The title starts with a deed made in 1779 by Henry King.

When he died he left a will in which he made this provision :

“I give and bequeath unto son Abram and John, their heirs and assigns forever, all my last estate of land and meadows on conditions following. That after my youngest child shall become of age that then the whole last estate shall foe valued by three persons of good repute chosen by my executors, and the third part of the value of said estate shall be paid iby my son Abram and John unto my sen Henry to him, his and assigns forever.”

By deed of record on March 22d, 1822, John King conveyed to John King, Jr., and Harmonus Spear his share of the lands of Henry King, and which deed conveyed as follows: Also two equal third parts of the whole tract of the salt meadow belonging to the estate of Henry King, deceased, being the share of said John H. King as described by mutual agreement between the heirs of the said deceased and the share of Henry King, which the said John H. King has since purchased.

While there is no evidence in writing of a physical division of the land, there is in evidence a bond given by Abram IT. King to John King, Jr., and Harmonus Spear, dated the 3d day of October, 1822, which binds Abram H. King to abide by and perform and keep any award of division that shall be made by the commissioners named in this bond. And the bond also says that said award shall be made in writing under the hands and seals of the said arbitrators or any two of them, and ready to be delivered to the said parties in partition, or such of them as shall require ihe same, on or before the 20th day of October next ensuing.

Abram King did not die until 1852, thirty years after-wards, and lie did nothing during this thirty years to repudiate the conveyance of two-thirds of the four acres made by his brothers, nor did he call for the arbitrators’ award. He also left a will in which he devised his salt meadow, not his interest therein, to his daughter.

Without going more elaborately into the title to this property, I have come to these conclusions—first, that there has been no adverse possession on either side; second, that, according to the meagre records, the complainant herein is entitled to partition two-thirds of the four acres, and that one-third of the four acres has descended to the Marcus L. Ward home, and that, when partition is had, proper allowance should be made to the Marcus L. Ward home for its share of taxes paid on the whole tract.


text:
    In the matter of Albert J. Gleason, an alleged lunatic.
    [Decided April 14th, 1925.]
    .1. To set aside a unanimous verdict of a jury of twenty-four men rendered in a trial before commissioners in a lunacy proceeding, the court must be satisfied that the verdict is clearly against the weight of evidence.
    2. lYliere the expert testimony at the trial, which consumed five days, was that the subject was insane, and the friends and associates testified that Ms mental condition was perfectly normal, the issue was for the jury to decide, and the verdict will not be disturbed by this court under the testimony in this case, even though the commissioners filed a memorandum disagreeing with the verdict, and stating that, in their opinion, the subject xvas insane.
    On inquisition in lunacy.

      Mr. Merritt Lane, for tbe petitioner, Emma Gleason.

      Messrs. Pitney, Hardin & Skinner, for the alleged lunatic, Albert J. Gleason.
   Church, Y. C.

This matter comes before the court to set aside a finding of sanity in lunacy respecting Albert J. Gleason.

Mr. Gleason’s wife made the application for a commission. This commission was addressed to Edward R. McGlynn, Esq., Dr. Walter S. Washington and Simeon H. Rollinson as commissioners. A jury of twenty-four men was called. The case was heard under the jurisdiction of the commissioners for five days. The master commissioner charged the jury correctly as to the law, and the jury unanimously returned the verdict that the alleged lunatic was sane.

Believing the matter was of great importance^ and rather unusual, I asked Vice-Chancellor Backes to sit with mo, and he was kind enough to do so>.

In the first place, an effort lias been made to show an ulterior motive on the part of the wife to declare her husband a lunatic, and counsel for the petitioner objects to such a statement, and says that the only motive is to' protect the defendant from what eventually will be insanity.

1 cannot see that there is anything much to be criticised in counsel’s effort to bring out motive. It may be that he, in his interest for his client, stressed the -wife’s attitude, remarks, and so forth, but these things were, in the last analysis, for the jury to decide.

The cases hold that in such situations the court must be satisfied' that the verdict of the jury is clearly against the weight of the evidence.

I have considered the testimony carefully, and I find that, whereas there was evidence that Mr. Gleason had done very-peculiar things, there was also evidence that, after Ms collapse', he recovered and became normal.

The jury was presented with evidence wMch showed on the one side, from expert testimony, that Mr. Gleason was mentally afflicted. On the other side tins was denied, and there was testimony that he was normal. His friends in the Newark Athletic Club said he was perfectly normal. Other people, called by his wife, testified that he was abnormal, especially some who- bad been business associates with him.

Be that as it may, I feel that on the testimony presented it was fox the jury to decide, and I am not inclined to> reverse a verdict of a jury of twenty-four men, because there is evidence to prove the contrary. It was the jury’s province to decide.

Counsel lias called my attention to the fact that the three commissioners filed a memorandum disagreeing with the verdict, and stating that, in their opinion, Mr. Gleason is insane. While this has some weight with the court in coming to a determination, it is not sufficient in the present case, in my opinion, to disturb the jury’s verdict.

Affidavits have been offered by way of newly-discovered evidence. It appears that during the trial two employes, of Gleason testified against him. Promptly after the verdict Mr. Gleason dismissed them from his service, but this does not indicate lunacy, to my mind.

I decline to set aside the verdict.

Vice-Chancellor Backes permits me to say that he agrees with these conclusions.


author: Churci-i, V. C.

text:
    In the matter of the application for costs and counsel fees in the case of Albert J. Gleason, on a writ de lunatico inquirendo.

    [Decided May 21st, 1925.]
    Costs, counsel fees and expenses of an inquisition in lunacy, where the subject is found to be of sound mind, may be fixed and assessed by the court, provided the one prosecuting- the inquisition has acted from justifiable motives and in good faith, and there is a fund under the control of the court out of which payment can be ordered to be made.
    On inquisition in lunacy.

      Mr. Merritt Lane, for Mrs. Gleason.

      Mr. Thomas G. IJaight, for Mr. Á. J. Gleason.
   Churci-i, V. C.

In this case a commission was appointed at the request of Mr. Gleason’s wife to inquire into his sanity. A jury of twenty-four men was assembled, and at the conclusion of the trial, which lasted six days, continuously, they unanimously found Mr. Gleason sane. The commissioners, however, disagreed with the finding, and filed a memorandum declaring that, in their opinion, Mr. Gleason is insane.

The question now before this court is on a motion to have the expenses of the inquiry fixed and assessed. The controlling case on the subject is that of In re Sulk, 74 N. J. Eq. 736. The opinion is by Chancellor Walker, then vice-chancellor. The syllabus reads as follows:

“If, under proceedings' on a commission in the nature of a writ de lunático inqmre-ndo, the subject of the inquisition is found to be of sound mind, the person petitioning for and prosecuting the commission of lunacy is entitled to costs, including counsel fee and expenses reasonably and properly incurred, provided the prosecutor of the inquisition has acted from justifiable motives and in good faith, and there is a fund under the control of the court out of which payment can be ordered to be made.”

The first question is whether Mrs. Gleason, the wife in the case at bar, who filed the petition—and it should be noted that in the Sulk Case the wife filed the petition against the husband as in this case—acted from justifiable motives and in good faith. I am confident that she did.

I have read the voluminous testimony in this ease and it clearly shows that Mrs. Gleason was justified in making an application for the commission. It is important to consider the entire testimony, and if there be an appeal I shall direct that the evidence taken before the commissioners and jury be printed in full.

Mr. Gleason and his counsel admitted that at one time he was mentally ill, but afterwards recovered. The commissioners, men of the highest standing, disagreed with the jury, and stated that, in their opinion, he had not so recovered.

An application was made to set aside the verdict, and in an opinion heretofore filed, which was concurred in by Vice-Chancellor Backes, who kindly consented to sit with me in the matter, I decided not to disturb it.

The second question is, Was there a fund under the control of the court out of which payment for these services can be made ? I am somewhat surprised at the attitude of counsel when they say that because a receiver was not actually appointed there is no fund under the control of this court.

The circumstances in regard to this are that an application was made by counsel for Mrs. Gleason to appoint a receiver. On the plea of counsel for Mr. Gleason that a receivership might lead to unpleasant notoriety and might affect the business in which he is engaged, and at his counsel’s suggestion, it was .agreed that instead of appointing a receiver, Mr. Gleason should voluntarily convey to a trustee, appointed by the court, his personal property. This he did by an instrument signed by him and acknowledged by his counsel, in which he turned over certain securities to the trustee, and which deed of trust recites that "the trustee is to hold the said property pending the proceedings to determine my sanity and such order that the court of chancery may, in the future, make.” I shall hold that there is a fund under the control of this court from which these expenses can be taken.

Third. Are the costs, expenses and counsel fees which I have assessed, reasonable and within the ability of the defendant to pay ? The commissioners are of the highest standing, men of affairs and with large personal interests. They sacrificed these for six consecutive days, and it should be noted that this means a. great deal more than taking one day a week for a number of weeks. The same is true as to the services of counsel. I believe the allowances I have made are reasonable and moderate. Are they within the ability of the defendant to pay without serious inconvenience and financial loss to himself ? The jury having decided that Mr. Gleason is sane, and this court having declined to set aside the verdict, the question of Mr. Gleason’s financial ability cannot be better determined than by a consideration of his own testimony before the commission and jury as to his assets and income. The lowest estimate, as the testimony will reveal, was $740,000. I do not think that allowances of approximately $8,000 are excessive.

I find the prosecutor, having acted from justifiable motives and in good faith, and there being a fund under the control of this court from which allowances can be made, that the costs are reasonable and commensurate with Mr. Gleason’s income. They must be paid by him.


text:
    Berlant Development Company, complainant, v. Patrick F. McManus, defendant.
    [Decided May 6th, 1925.]
    Where the terms of a contract to convey land were entirely fulfilled, the vendor has no right to demand additional consideration from the vendee before delivering a deed, and any agreement to that effect is without consideration and void.
    On bill, &e.

      Mr. James B. Furber, for the complainant.

      Messrs. McDermoU, Enright & Carpenter, for the defendant.
   Church, Y. C.

This is a suit for specific performance, requiring defendant to tear down a barn in accordance with an agreement.

The facts are that defendant entered into an agreement with complainant, dated November 26th, 1919, to convey certain property in Linden township, Union county, the dimensions of which are described in the contract of sale. The purchase price was $3,000, payable in monthly installments. The last installment was paid in June, 1923, and, according to the contract, the defendant was entitled to a deed. No deed was delivered, but on August, 1923, two months after the completion of the payments, the president of the complainant company induced the defendant to sign an agreement which stated that if he would pull down a certain barn he should receive a deed immediately. Complainant signed the agreement, but did not receive the deed until January 18th, 1924. _ The complainant seeks to compel the defendant to tear down the barn under this agreement. There was no consideration for the agreement whatever.

“A promise to do what the promisor is already bound to do cannot be a consideration, for if a person gets nothing in return for his promise but that to which he is already legally entitled, the consideration is unreal.” IS C. J. Cont. S51.

In other words, the complainant was already bound to convey the property described, and, therefore, had no right to exact additional consideration for the completion of the contract. See Conover v. Stillwell, 34 N. J. Law 54.

The defendant raises another point, that of failure of consideration, but, having found that there was no consideration, it is unnecessary to discuss its failure.

It further appears by the uncontradicted testimony in the case that the deed, as finally delivered, did not carry out the terms of the agreement of sale. Briefly, that agreement required a frontage that would give a clearness of ten feet on each side of the house. The undisputed testimony is that the clearness on the easterly side of the house is six and three-tenths feet, and on the westerly side of the barn seven and eight-tenths feet.

I shall, therefore, dismiss the bill for specific performance, and direct that a deed, properly reformed to comply with the conditions in the contract of sale, be delivered to defendant.


author: Church, V. C.

text:
    Jacob Cohen, complainant, v. Sophia and Samuel Miller, defendants.
    [Decided April 22d, 1925.]
    Where a vendee refuses to take title to lands on account of some trifling encroachments thereon, for a considerable time, and refused to accept a deed tendered, it is unfair to permit him to delay a considerable time after his refusal to take title, defects and all, and then decide in view of an increase in value of the property that he will take it.
    Oil bill, &C.

      Mr. Nathaniel W. Franzblau, for the complainant.

      Mr. Joseph L. Smith and Mr. John A. Bernhard, for the defendants.
   Church, V. C.

This is a bill for specific performance by < complainant against defendants for a certain propertj on South Centre street, Orange, New Jersey.

The contract of sale was executed October 16th, 1923, and the vendee, the complainant herein, made a payment of $500 to the vendor. Title was fixed to pass at the office of the Fidelity Union Trust Company on July 9th, 1923. Vendor and vendee met at that time and place, and the vendor, the defendant herein, executed a deed, which was tendered, and the apportionments called for in said agreement of sale were made. Title did not pass, the defendant herein alleging that the complainant did not have the purchase-money; the complainant alleging that it was informed of certain defects in the title. On December 7th, 1923, the parties again came together, and. the defendant herein, the vendor, tendered the complainant a warranty deed, excepting from the warranties the alleged encroachment and defects in the title. This was refused, and thereupon a straight warranty deed was offered, but this also was refused.

There appears in the evidence a letter from the solicitor of the vendor to the solicitor of the vendee, which says, among other things, “it is first understood that you are to take title as is.” The reply says, inter alia, “on the day fixed by you as satisfactory to all concerned, we will take title as stated in your letter of November 30th.”

On or about March 17th, 1924, about nine months after the last tender, a bill was filed for specific performance. At the trial, counsel for the complainant stated, in response to this question by the court: “But you are not willing to take the property in the condition that it is now? A. Yes, if we are allowed the abatement.” After further questioning, counsel stated that they were willing to take the title as it is.

There is a direct conflict of evidence as to whether or not there were any defects in the title. I admitted in evidence, after some‘hesitation, certain sheets of paper purporting to constitute a search by the Fidelity Trust Company on the property, which show encroachments. On the other hand, Mr. Arthur Seymour, a reputable member of the bar, took the witness-stand and produced a search he had made on the property, which showed no encroachments.

I shall assume, for the purpose of this opinion, that there were encroachments, but I shall also assume, from the evidence in the case, that the defendant, the vendor, was ignorant of the fact that there were encroachments when the contract of sale was signed. Under these circumstances, therefore, the question arises as to whether or not this court should compel a transfer of this property at this time, when, as is admitted, the property has appreciated considerably.

The vendee had two opportunities to secure this title. At the first meeting he was informed of the encroachments, and probably was justified in declining to take the title, but at the second meeting, knowing of the encroachments, and having had time to consider them, he still declined to take a warranty deed, although, as he said at the hearing in the case, “we have found, out that the cost will be so small to cure one of the defects, we would take it as it is.” It seems to me that it is unfair to the defendants to permit the complainant to delay a considerable time after his refusal to take title, defects and all, and then decide, in view of the increase in value of the property, that he will take it.

Vice-Chancellor Pitney, in the case of Planer v. Equitable Life Assurance Society, 37 Atl. Rep. 668, said (at p. 671):

“Coming now to the question of the right of the complainant to specific performance, it is to be observed that, at the time the contract was made, the officers of the company, as we have seen, had no knowledge or suspicion that their title did not cover what they understood they contracted to convey.”

He further says:

“A vendee * * * must show that the defendant undertook to convey what he knew he did not own.” Pom. Spec. Perf. Coni. 4J)£ § 31/-5.

He further says:

“In the meantime there has been some change in the value of the property. * * * Under these circumstances I do

not see my way to advise any decree against the defendant, and must, therefore, advise that the complainant’s bill be dismissed, with costs, and the contractual letter be declared invalid as a contract and delivered up.”

I shall therefore advise a decree dismissing the bill. I think, however, that the vendor should return to the vendee the deposit of $500, with proper interest.

Mly attention has been called to the case of Coltinuk v. Hockstein, 95 N. J. Eq. 513. I think that this case, if it has any bearing at all, supports, the opinion as I have above written. In the one case the defendant refused to convey, although the complainants said they would be willing to take title subject to whatever liens might appear. In the case at bar the defendants seek to compel complainants to convey, when they had theretofore refused on account of liens. The cases are similar in this respect, that in each case failure to come to an agreement arose from an increase in value of the property.


text:
    Bertha A. M. Kern Force, complainant, v. Agnes G. Force and Andrew E. Force, defendants.
    [Decided May 5th, 1925.]
    Where a woman deeded certain real estate to one of hex children for little of no consideration, the burden is upon the grantee in the deed to show that the mother acted voluntarily, knowingly, intentionally and deliberately with full knowledge of the nature and effect of her act, and that her consent was not obtained by any oppression or undue influence, or that undue advantage was not taken of her condition, situation or necessities, and, on failure to sustain this burden, the deed will be set aside.
    On bill, &c.

      Mr. Edward B. McGlynn, for the complainant.

      Mr. Thomas BruneitOj for the defendants.
   Church, Y. C.

The bill in this case contained a prayer for a decree to establish the fact that a deed made by Emma C. Sippel, dated June 26th, 1918, to the defendants, recorded in book E 60 of deeds for Essex county, page 402, was without consideration, and that the said Emma C. Sippel died seized of the lands described in the above-mentioned deed, or of so much thereof as remained after a conveyance of a portion of said lands to the Newark Athletic Club, and that she was the owner of a mortgage which had been given back as part of the consideration of the last-mentioned conveyance.

The bill charged the defendants with fraud, and further charged that the consideration of the deed above mentioned was merely colorable and was inadequate.

The evidence proved that Emma C. Sippel, mother of the complainant and the defendant, who are sisters, had died on June 7th, 1923, and that under her will her property had been left to the complainant and the defendant in equal shares. That on or about June 26th, 1918, the said Emma C. Sippel had been indebted to the Caldwell National Bank on a note or notes in a sum of approximately $2,000, and the bank refused to renew said note or notes, and the president of said bank had informed the defendant Mrs. Force that the bank would not loan any more money to her mother, Mrs. Sippel, because they did not think she was capable of doing business, and suggested to her that if she would get a deed from the mother for the land described in the bill of complaint, the president of the bank would loan on a first mortgage on said property the sum of $1,500, and that all or a portion o.f this mortgage money would be used to pay off the mother’s indebtedness to the bank.

At the time this mortgage was given the defendant Mrs. Force told the president of the bank that she had not bought the property and paid for it, but that she had obtained the deed to raise money to pay off her mother’s indebtedness.

The proofs further showed that, subsequent to the giving of this mortgage, the mother of complainant and the defendant Mrs. Force had lived with the defendant, and that the conduct and management of the home and farm had continued as it had previous thereto; that all monej's derived from the sale of farm products, the interest on other mortgages, rents from other properties, were deposited in banks and checked out for the purpose of paying taxes and other carrying charges, and also for the purpose of paying off other debts of the mother, Mrs. Sippel.

That, subsequent thereto, the said mother had sold another piece of property in Montclair, and the proceeds of the sale of this property had, in the same manner, been placed in the bank and used for the purpose of paying off debts and carrying charges on the property described in the bill of complaint and other property.

That prior to the death of the mother, Mrs. Sippel, a portion of the property described in the deed given by the mofcaer to the daughter, Mrs. Force, had been sold to the Newark Athletic Club, and that the proceeds of this sale had likewise been deposited in the bank and used, as had all the other moneys, which were derived either from the sale of the property or from the conduct of the farms.

Complainant testified that, immediately subsequent to her mother’s death, she had a conversation with her sister, Mrs. Force, as a result of which she learned for the first time that her mother had conveyed the property described in the bill of complaint to her sister, who told her that the conveyance had been made for the purpose of securing to Mrs. Force and to her husband the sum of $800, which was due him for wages, but that, subsequently, when the schedules for the collateral inheritance tax due the State of New Jersey from her mother’s estate was made up, the land in question was omitted, and that, when she questioned her sister about it, her sister refused to give her any information, and insisted that she was the owner of the land.

It further appeared that none of the mother’s debts had been paid from any money, except the money which had been raised either by way of mortgage or sale of the mother’s property, or from the proceeds derived from the management of her farms, and that at the time of her death there were still debts due which were paid from the personal estate of the mother; that a portion of the property originally conveyed to the daughter, Mrs. Force, had been sold for $12,250, $3,250 dollars of which had been paid in cash and the balance of $9,000 dollars by the execution of a purchase-money mortgage, and that there was still left of the original property about sixteen acres, worth, approximately, $250 an acre.

The answer, which was filed by the defendants, set up two different explanations of the conveyance in question, to wit:

“1. The property was deeded to the defendant and they were to pay all their mother's notes which were then outstanding, and, if there was any surplus, it was to be theirs.
“It was also agreed at the time that in consideration of the defendant’s mother making the deed as aforesaid, the defendant and her husband agreed to take care of her mother during the remainder of her lifetime, which agreement they performed.
“2. That the complainant and her mother, Mrs. Emma 0. Sippel, had not been for a period of years prior thereto very friendly, said unfriendliness growing out of transactions whereby complainant's mother, Emma 0. Sippel, had endorsed promissory notes of one Leonard at the instance of complainant, the said Emma C. Sippel, mother of complainant, and the defendant, Agnes G. Force, had been compelled to pay said notes.”

No attempt was made at this filial hearing to prove the latter allegation.

With reference to the first reason set forth in defendants’ answer, the evidence clearly indicated that the notes or debts of the parties’ mother, which had been paid prior to her death, were paid with her own money, and that any of her debts, which were due at the time of her death, were paid from the personal estate by her executors.

It was also proved that, instead of the defendant and her husband taking care of the parties’ mother during the remainder of her lifetime, the mother had practically supported them, and that for any service they performed for her she had paid them wages.

All of the accompanying incidents of the transaction in question, especially the pecuniary necessities of the mother, combined with inadequacy of consideration, in fact, an almost total failure of consideration, operate to throw the heavy burden of 'proof upon the defendants, who are seeking to enforce the transaction in question and claiming the benefits of it, to show that the mother acted voluntarily, knowingly, intentionally and deliberately, with full knowledge of the nature and effects of her acts, and that her consent was not obtained by any ojjpression, undue influence, or that undue advantage was taken of her condition, situation or necessities.

I do not believe that the defendants in this case have succeeded in showing the good faith of the transaction, and I think that this court should grant the relief asked for by complainant.


author: Bentley, Y. C.

text:
    Philip E. Raque and Charles H. Blohm, executors and trustees under the last will and testatment of Julia P. Weltz, deceased, complainants, v. City of Speyer, Germany, et al., defendants.
    [Decided May 21st, 1925.]
    1. Where bequests are made to a school and an asylum in Germany which do not exist, the bequests fail.
    2. Where bequests are made to German institutions which do not exist, the bequests are not payable to the alien property custodian as property of an enemy.
    3. Where such gifts fail, they should not be administered according- to cy pres doctrine, but are distributable as intestate property, according to the statutes.
    On bill, &c.

      Mr. James A. Butter and Mr. Charles H. Blohm, for the Complainants.

      Mr. Karl Z. Kiefer, for the defendant Protestant Orphan Asylum.

      Mr. Ernest J. Magan (of the New York bar), for the defendant Wm. Seward Weiss.

      Mr. Harlan Besson, for the alien property custodian.
   Bentley, Y. C.

This bill is filed by executors for the construction of a will.

Julia P. Weltz, deceased, by the seventh section of the will in question, provided as follows:

“I give and bequeath all the residue and remainder of my estate, of whatever it may consist or wherever situated, unto the Gewerbschule, of the city of Speyer, Germany, or to whom governs or controls the same to be used in said Gewerbscliule for the acquisition of machinery, instruments and equipments of a workshop to aid in the practical application of scientific studies to be pursued therein, or to create a fund from the interest of which new appliances or instruments can be from time to time acquired, so as to aid in the study of natural sciences and astronomy, or to enable new discoveries in any of these to be experimented on or to be practically applied.
“This is to ho called the ‘Johann David Weltz Stiftung'’ in memory of my deceased husband. Provided, however, that should the Gewerbschule of the city of Speier, Germany, or who governs or controls the same, decline to receive the bequest on account of insufficiency of means, let the bequest be applied as far as it goes; but should it be declined for any other reason whatever in that case this legacy shall cease and be considered void and of no effect, the same as if same had never been made; and the residue and remainder so declined as aforesaid, I, in that case, give and bequeath all the aforesaid residue and remainder of my estate, of whatever it may consist or wherever situated, unto the Protestant Orphan Asylum of the city of Speyer, Germany, to be used in the creation of a fund from the interest of which any of the pupils among the wards of the asylum, male or female, who show particular talent for any of the arts and sciences, shall be allowed to study said art or science so as to enable them fe acquire a practical knowledge thereof and to earn a livlihood thereby. Should these at any time be willing to show their appreciation of the benefits received and he in condition to do so, they might regard this help as a loan and return it to the asylum so as to aid others in ’the same way. This is to be called the ‘Johann David Weltz Stiftung.’ ”

There are four claimants, namely—(1) the heirs-at-law; (2) the Gewerbscliule of the city of Speyer; (3) the Protestant Orphan Asylum of the city of Speyer, and (4) the alien property custodian.

I do not think that the bequest to the Gewerbscliule can be sustained. It appears that this class of schools was either initiated or its scope and usefulness greatly enlarged at the beginning of the nineteenth century, so that the youth of Germany might be educated more efficiently in the application of the arts of manufacture and the elevation of mechanical instruction, so that the competition of other countries might be more effectively met. Another class of schools in the German empire were known as Realeschule, and was designed to fit its pupils with a higher education in which the future merchant, the banker and the candidate for postal and railway employment were educated. In the beginning of the latter half of the nineteenth century important changes were adopted in public instruction of Germany, and the course pursued in the old Gewerbschule was lengthened and changed into the Bealesehule, to all intents and purposes. Therefore, when the testatrix died there was no such institution in the city of Speyer as the Gewerbschule, and, thus, so much of the residuary clause as was intended to benefit that defunct institution fails.

With regard to the claim of the Protestant Orphan Asylum, a like conclusion must be reached. The only witness who testified was one of the executors, who had gone abroad to seek information as to the intended objects of the testatrix’s bounty. He testified that in the city of Speyer he found a building with the legend upon it, “Orphan Asylum;” that there was another similar institution operated exclusively for the benefit of children of the Catholic persuasion; that the former shelters both Protestants and Catholics, as well as Jews. It is most significant that this asylum is now a nonsectarian institution, governed exclusively by the municipality of Speyer, and that its name, when translated, is “Municipal Orphange.”

On July 12th, 1918, the alien property custodian caused a demand to be served under the “Trading with the Enemy act,” upon the complainants, as executors of the decedent’s estate, by the terms of which they were required to convey, transfer, assign, deliver and pay over all money and property bequeathed to the two institutions just dealt with, and payable to the city of Speyer, and certain individual beneficiaries of the will. This, of course, was upon the ground that they and each of them were alien enemies, not provided with a license under the provision of the act of congress. Were this so, it seems indisputable that the position of the alien property custodian would be impregnable; but, inasmuch as it has already been held that the Gewerbschule and the Protestant Orphan Asylum, as distinguished from the other beneficiaries, do not exist, and, therefore, cannot benefit, his position is not sound. Under the circumstances, the cases cited by his counsel are not applicable to these facts. So far as demand is made for the transfer of property held by the executors for the benefit of alien enemies is concerned, 1 agree that it entitles him to possession under the statute. But so far as a demand for the transfer of property under a void bequest as above shown, it does not bind this court in any degree. It is the province of the alien property custodian to impound all property actually and beneficially belonging to an alien enemy, but it is the duty of this court to construe the will and determine whether or not an institution is entitled to benefit thereunder.

Therefore, the attempted bequests in the seventh paragraph having failed, the testatrix died intestate as to the residuum, and the executors should distribute the same in accordance with the legislative enactment.

At the final hearing, testimony of extrinsic facts was admitted over the objection of counsel for the next of kin of the decedent. This was done provisionally, however, because of confusion in my mind as to whether or not the same was admissible under the rules. I am convinced that it is not, for the reason expressed in Wigm. Ev. § 2472. However, this is of no moment because of the decision to which I have come.

It is also argued that, under the doctrine of cy pres, effect should be given to the gifts in the alternative to either the Gewerbschule or the orphan asylum. I do not think so. That doctrine is only applicable to technical charitable trusts. The distinction will be found in the opinion of Lord Thur-low in Corbyn v. French, 4 Ves. Jr. 419. It was there pointed out that if it is clearly to be seen that the testator had but one particular object in his mind, and that purpose cannot be answered, the next of kin will take, there being in such case no general charitable intention. Of course, in the present instance there were two objects named, but, clear I}*, they were in the alternative and, each being considered separa tely, disclose no case susceptible to an application of the doctrine of cy pres.

“But if the charitable purpose is limited to a particular object or to a particular institution, and there is no general charitable intent, then, if it becomes impossible to carry out the object, or the institution ceases to exist before the gift has taken effect, and possibly in some eases after it has taken effect, the doctrine of oy pres does not apply, and in the absence of any limitation over, or other provision, the legacy lapses. Gharilies, 5 R. G. L. §108. '

I will advise a decree directing the executors to distribute the shares that would have gone to the Gewerbsehule or the orphan asylum to the next of kin.


author: Bentley, V. C.

text:
    Dora Silbermuntz, petitioner, v. David Silbermuntz, defendant.
    [Decided May 29th, 1925.]
    A petitioner for divorce for desertion must be a T>ona fide resident of this state at the time the cause of action arose, and where she did not take up her residence in this state until more than four years after the desertion occurred, this court is without jurisdiction to grant the divorce.
    On petition for divorce.

      Messrs. Levitan & Levitan, for the petitioner.

      Mr. William E. Sewell, for the defendant.
   Bentley, V. C.

This is a suit by the wife for divorce on the ground of desertion.

The parties were married in New York during 1901, and have had four children born to them. They moved to the city of Ottawa, Canada, and resided together until January, 1914. Prior to that time they had been unhappy, and the petitioner testifies that she had been subjected to considerable cruelty at the hands of the defendant. Both being of the Jewish 'faith, the husband, in the month just mentioned, secured a rabbinical divorce from a priest of that religion, in the city of Buffalo, New York, and delivered a copy or certificate thereof to his wife by a messenger, in accordance with the Jewish custom. He thereupon took for himself most, if not all, the valuable property that he and his wife had accumulated, and went from America to the city of Amsterdam, Holland, and remained there until 1920. He has undertaken, in his own defense, to prove that he did not desert his wife, but went abroad upon business and was unable to return to his family because of the world war. Frankly, I do not believe him. Not only because of the unpleasant impression he created as a witness, but also because his excuse is too transparent and flimsy for credence. In short, it is clear that he has been guilty of willful and obstinate desertion for more than two years.

However, it is unfortunate that there is no jurisdiction in this court to decree the divorce that the wife seeks. The seventh section of the Divorce act of 1907 provided that, for the purpose of divorce, jurisdiction may be obtained when the defendant canont be served personally with process within this state:

“When at the time the cause of action arose, the petitioner was a Tjona fide resident of this state, and has continued so to be down to the time of the commencement of the action, except that no action for absolute divorce shall be commenced for any. other cause than adultery, unless the petitioner has been for two years next preceding the commencement of the action a Tjona fide resident of this state. Comp. ¡Stat. p. 2082.

The difficulty with the petitioner’s situation is that the proofs disclose she did not take up her residence in the State of New Jersey until May, 1918, or more than four years after the desertion occurred. Yice-Chancellor Emery, in Koch v. Koch, 79 N. J. Eq. 24, settled the interpretation of the above language for this court to be that the cause of action, while it does not arise immediately upon the completion of the act of desertion, does arise just two years thereafter. Within that time a petitioner, under the circumstances of this case, must have been or become a resident of New Jersey in good faith. Consequently, the petitioner’s cause of action under our statute “arose”in January, 1916, at which time, according to her own testimony, she was domiciled in, and a resident of, the State of New York, to which she had migrated after the defendant abandoned her and her children in Canada. Hence, she was not a “bona -fide resident of this state” at the time the cause of action arose, and the legislature has conferred upon this court no authority to grant the divorce she seeks.

Her counsel relies upon the pronouncement of the court of errors of appeals in Myles v. Myles, 77 N. J. Eq. 265. There the court had in mind, not the period within which a petitioner’s residence must begin, but the very different matter of the continuity of the desertion, as is apparent from the language of its opinion in Gordon v. Gordon, 89 N. J. Eq. 535.

To meet this difficulty, counsel has undertaken to fix the date of desertion at a period later than the separation which occurred in Canada. The petitioner has testified that in May, 1920, she sought out the defendant in New York, after his return from Europe, for the purpose of effecting a reconciliation, and that he refused to talk to her. At the hearing, the date of the desertion alleged in the original petition as having occurred in January, 1914, was amended to May, 1920. From this it is contended that a desertion occurred upon that date. Gates v. Gates, 59 N. J. Eq. 100. It seems only necessary to say that not more than one desertion can have taken place without an intermediate reconciliation, and it is undisputed in this case that the parties never resumed marital cohabitation after the defendant deserted his family in 1914. But, it is said in the petitioner’s behalf, there was, in fact, no desertion in 1914 at all, for the reason that the wife, either actually or constructively, acquiesced in the separation, because, under the rabbinical law, a “get” or divorce, or a certificate in proof thereof, cannot be secured by a husband except with the consent of his consort. Such was not the proof. Jacob L. Andron, an expert witness, sworn in the petitioner’s behalf, qualified as a man learned in the rabbinical law. He distinctly swore that under that system of jurisprudence there were two methods whereby divorce might be secured—first, the simple instance of a man and woman who present themselves by mutual agreement to effect a dissolution of the marriage ties; the other covers a case where the man desires to execute his ancient authority, familiar in the-Bible, of putting away his wife. In that instance he can, upon convincing a rabbi of a sound reason for giving the woman -her freedom, secure a “get.” After the necessary formalities are concluded, the “get” is prepared and placed by the husband in the hands of a messenger, who is thus commissioned and instructed to transmit the same to the wife. The divorce is then complete. In this latter sort of divorce the desires of the wife are not consulted, and there is no consent upon her part necessary, either implied or otherwise. This was precisely the state of facts to which the petitioner herself testified. She deposed that at the place of business where she and her husband were established, his messenger 'appeared and left in her hands the instrument which, in the eyes of her faith, but not in our law, rendered her a free woman. The very fact that she swore in her petition that she was willfully and obstinately deserted in January, 1914, when her husband left her, disproved in the most convincing fashion the argument now advanced, that her husband did not obstinately desert her at that time.

It is undoubtedly true that she has been badly treated and should be separated in an appropriate jurisdiction from her husband, but the proof of the good faith of her residence was not robust, and, whether true or not, the legislature has not converted this court into an arena where anyone from any jurisdiction may litigate his matrimonial differences, unless he or she comes within the clear meaning of the statute in which the policy of the state is crystalized for these cases.

The petition should be dismissed.