author: Teenchabd, J.

text:
    Mary Soper, complainant and respondent, v. Mary S. F. Cisco and Joseph Cisco, her husband, defendants and appellants.
    [Submitted March 22d, 1915.
    Decided November 15th, 1915.]
    1. A deed for lands made by a grantor in consideration of “support during her natural life” therein recited, is not a gift, but is founded upon a valuable consideration, and when made by one having the mental capacity to make it, and without fraud, duress or undue influence, will be sustained.
    2. The test of mental capacity to make a deed is that a person shall have ability to understand the nature and effect of the act in which he is engaged and the business he is transacting.
    3. No presumption of undue influence in the case of a ■ conveyance by a parent to a child, in consideration of support of the grantor, arises from the mere relation of the parties, and, therefore, the burden is upon the party attacking the conveyance to show undue influence.
    4. The rule that undue influence is not to be presumed from the mere relation of parent and child, in case of a conveyance from a parent to a child, does not conflict with the broad rule that where parties stand in confidential relation to each other a conveyance from the weaker to the dominant party is presumed to result from undue influence, and, therefore, where facts are shown, other than the mere relation of parent and child, establishing between the parties a confidential relation in which the child is the dominant party, 'a conveyance from the parent to the child is presumed to be tainted with undue influence, and the burden is upon the child to show the 5ona fides of the transaction.
    5. A mother, seventy-seven years of age, in the full possession of her mental faculties and in good physical health, made a deed for her homestead property to her daughter, forty-five years of age, who had been her chief support for fifteen years prior thereto. The consideration for the deed was $300 and “support during her natural life” therein fexpressed. It was drawn by and acknowledged before a competent lawyer, with whom the mother conferred privately, and was recorded immediately. The property was then worth about $5,000, but of small rental value and not readily marketable. The bargain was made at the solicitation of the mother, the daughter being reluctant. No effort was made to- keep the transaction secret. Before and at the time of making the deed and until eleven years thereafter, when failing mental faculties rendered some restraint necessary, the mother had perfect liberty of action and freely saw such of her other children as she wished to see and who wished to see her. Her daughter supported the mother satisfactorily at the homestead for sixteen years after the deed was made, when the mother, without any fault of the daughter, went away and refused to return.—Hold, that the bargain was a natural and provident one for the mother to make and was not the product of undue influence, and will not be set aside for failure to show that the mother had “independent advice."
    6. He who, without adequate excuse, delays asserting his rights until the proofs respecting the transaction out of which he claims his rights arose, are so indeterminate and obscure that it is impossible for the court to see whether what is asserted to be justice to him is not injustice to his adversary, has no right to relief.
    7. A grantor, having made a conveyance of her property to her daughter in consideration of $300 and “support during her natural life” therein expressed, and having at the time the undoubted mental capacity to make it, and who delays challenging its validity for sixteen years and until the lawyer who transacted the business is dead, and the memory of other witnesses respecting important facts is dim, and the mental faculties and memory of the grantor herself have been so impaired as to render her testimony valueless, will not be permitted to set aside such conveyance when it appears that during all such time she had been supported by her daughter satisfactorily, and the grantor for eleven years after the conveyance was well aware that she had made it and was under no physical or mental disability nor prevented by coercion or poverty from filing a bill to set it aside if she had desired to do so.
    8. After a partial performance by the grantee of his obligation to support the grantor, the grantor may not abandon the same or prevent further performance upon the part of the grantee and take advantage of such failure to secure equitable aid to cancel or rescind the deed.
    9. When an obligation upon the part of the grantee to support the grantor is created by deed and there is no express direction where and how the support should be furnished, the grantor is entitled to require it to be furnished at any place he may select if it can be supplied there without needless or unnecessary expense.
    10. Where a grantor under a deed is entitled to support, and, at the age of 93, when her mental faculties are so impaired as to render it unjust to hold her to a strict accountability for her attitude, declines to be supported at the place where she has been satisfactorily supported for sixteen years, and makes no demand for support elsewhere but files a bill for cancellation of the deed, which relief must be denied by the court, equity requires that at the option of the complainant provision for prompt and adequate support shall be secured to her in that proceeding.
    On appeal from a decree of the court of chancery advised by Advisory Master John Franklin Fort.

      Messrs. Bilder cG Bilder, for the appellants.

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

Teenchabd, J.

This is an appeal by the defendants from a decree of the court of chancery, setting aside two deeds of conveyance, made by the complainant to the' defendant Mary S. E. Cisco, of two tracts of land, aggregating about twelve acres, situate at Lodi, Bergen county, New Jersey. The deeds are dated respectively, March 30th, 1897, and November 5th, 1898, each being recorded on the day of their respective dates.

The complainant is the mother of .Mary S. P. Cisco, and the widow of Benjamin Soper, and was residing at the time the conveyances were made with Mary and the latter’s husband in the homestead located upon the tract in question.

About the middle of March, 1897, the complainant expressed a desire to convey the property to her daughter Mary, in consideration of $300 and support during her natural life, and also in the consideration of the fact that Mary had cared for her and supported her for fifteen years prior thereto.

On March 30th, 1897, the complainant attended at the office of Ernest Koester, a counselor-at-law, at Hackensack, and at her request, he prepared and she executed, acknowledged and delivered the 1897 deed. At the same time, there was paid to the complainant $300, for which she signed a receipt, witnessed by Mr. Ixoester and his stenographer. The deed expressed the consideration as follows: “In consideration of the sum of one dollar, filial affection, and support during her natural life.”

Shortly prior to November 5th, 1898, the complainant told her daughter Mary that she had another lot which she still owned, and which had not been transferred, and that she desired to sell it for its assessed value, which was fifty dollars, which proposal was accepted and a deed executed for the lot. The deed was drawn by and acknowledged before A. H. G. Maidment, an attorney-at-law, at his office in Hackensack.

At the time of the conveyance of 1897, the complainant represented that the premises were free and clear of all encumbrances, but in 1900, the defendants learned that the complainant in 18-96 liad given a lease of the premises for the term of her natural life to her son Oliver Soper. After an expenditure of $200 by the defendants, that interest was obtained from Oliver.

Ernest ICoester, the lawyer who drew the 1897 deed and took complainant’s acknowledgment thereto, died on August 2d, 1909.

'This bill of complaint was filed August 30th, 1913, and charged that the deeds were obtained by fraud, duress and undue influence. The answer of the defendants denies such charges.

The learned advisory master found that the deeds in question were “mere voluntary gifts,” that the complainant was without “independent advice,” and that by the transfer, she parted with her whole estate, thereby impoverishing herself, and advised a decree that the deeds were “from the execution and delivery of the same, voidable and of no force or effect, at the option of the complainant,” and directing that they be delivered up and canceled and the property re-conveyed to the complainant.

After careful consideration we are of the opinion that the conclusion of the advisory master cannot be sustained, for reasons we will now state.

It is quite clear that these conveyances were not “mere voluntary gifts,” and in that i-espiect are to be distinguished from those set aside in Slack v. Rees, 66 N. J. Eq. 447, and Post v. Hagan, 71 N. J. Eq. 235.

The convevánce oE 1898 was for a consideration of $50. It is so stated in the deed. That the $50 was paid to the complainant is demonstrated by the production of the receipt, the testimony of the lawyer who drew the receipt upon the occasion of the execution and deliveiy of the deed, and by the entry in complainánt’s pavings bank .deposit book. IYo pause to remark that this deed is of' relatively small importance because it appears that $50 was probably a fair price, for the land conveyed by it, that being its valuation for taxation purposes.

Tt is equally plain that the conveyance of 1897 was not a “mere voluntary gift.” It appears to our satisfaction that $300 was paid to the complainant. This is demonstrated by the production of the receipt witnessed by the lawyer who drew the deed, and his stenographer, and by the entry in the complainant’s savings bank deposit book.

But apart from such money consideration the deed itself recites that it was made in consideration of “support during her natural life,” and in that respect this case is to be distinguished from Mott v. Mott, 49 N. J. Eq. 192, and Walsh v. Harkey, 69 Atl. Rep. 726. Now a deed for lands made by a grantor in consideration of “support durijig her natural life” therein recited, is not a gift, but is founded upon a valuable consideration, and when made by one having the mental capacity to make it, and without fraud, duress or undue influence, will be sustained. Collins v. Collins, 45 N. J. Eq. 813; Holland v. John, 60 N. J. Eq. 435.

The test of mental capacity to make a deed is that a person .shall have ability to understand the nature and effect of the act in which he is engaged and the business he is transacting. It appears beyond dispute, and it is not seriously questioned, that the complainant had such mental capacity. The fact that there was an outstanding lease not mentioned by the complainant does not shew mental incapacity, but rather shows, as the evidence indicates, her willingness to conceal the fact in order to make a bargain with her daughter which complainant regarded as advantageous to her.

Tt remains to be considered whether the deeds -were obtained by fraud, duress or undue influence.

The real contention of the complainant is that these deeds were the product of that species of fraud known as undue influence. /

We think that contention is not well founded.

No presumption of undue influence in the case of conveyance by parent to child in consideration of support of the grantor, arises from the mere relation of the parties, and therefore, the burden is upon the party attacking the conveyance to show undue influence. Collins v. Collins, 45 N. J. Eq. 813.

Of course the rule that undue- influence is not to be presumed from the mere relation of parent and child, in case of a conveyance from a parent to a child, does not conflict with the broad rule that where parties stand in a confidential relation to each other a conveyance from the weaker to the dominant party is presumed to result from undue influence; and therefore, where facts are shown, other than the mere relation of parent and child, establishing between the parties a confidential relation in which the child is the dominant party, a conveyance from the parent to such child is presumed to be tainted with undue influence, and the burden is upon the child to show the bona fides of the transaction. Mott v. Mott, 49 N. J. Eq. 192. See also 17 Ann. Cas. 989, note.

At the time these conveyances were made the complainant was about seventy-seven years of age. She was living with her daughter, the defendant, who was then about forty-five years of age, and was practically dependent upon her daughter. No doubt the application of the rule stated casts upon the daughter the burden of showing the conveyance was without undue in-, fluence.

Whether or not the deeds were the product of undue influence of course depends upon the relation of the parties and the facts and circumstances leading up and surrounding the execution of the deeds. We shall hereinafter deal with the effect of the impossibility, by reason of the lapse of time, of the production of full proof with respect to these essential matters.

We turn now to a statement of what the evidence discloses, and what it does not disclose, concerning these relations and transactions.

In 1897 and 1898 when the deeds were made, the complainant was living at the homestead (the property in question) with her daughter Mary, the defendant. Mary had lived there all her life. Her father, in his later years, was an invalid. For fifteen years she ministered to him with loving care. The other children had left home. During these last fifteen years of her father’s life Mary was the chief support of the family, her parents being without substantial means except the premises in question. The property was not readily marketable. It had but slight rental value, most of the twelve acres being low lands and unproductive, and the buildings being in a dilapidated condition. Mary acquired somehow some cows and chickens, and by selling milk and eggs, and making and selling ladies’ hats and bonnets, managed to support her father and mother until her father’s death in 1895 at the age of eighty-seven years. That she did this substantially without help, seems not seriously questioned.

But it is said that at this early day she had conceived the idea of getting the property, and that such was the motive for her self-denying conduct. We think not. We think rather that hers is the true version. At the hearing she was asked “Why did you struggle so ?” She replied:

“I didn’t want to see my father die in want, -and I supported him for fifteen years. He was a good man, and when I saw them all * * * putting nothing in I said, ‘Father, don’t cry, I will stay with you, and you shall never want,’ and I dressed him beautifully and gave him everything I could, and that is why I kept the cows for milk.”

When her father died in 1895 Mary was forty-three years old. She remained at the homestead, with the acquiescence of her mother; who went to live with her married daughter, Helen Butterworth, near by in Garfield, Bergen county. In 1897 Mary married the defendant, Joseph Cisco, and was contemplating moving with her husband to New York, when the complainant returned unsolicited to the homestead, with the avowed purpose of making her home with her daughter, and proposed that Mr. Cisco purchase the homestead property. This Cisco declined to do stating that much of it was worthless, being covered by water. At that time the property was valued by the assessor for taxation purposes at $1,300. It probably was worth about $5,000. She then proposed to deed the property to Mary in consideration of past services, $300, and support during her natural life. Mary and her husband seem to have been unwilling to accept such a conveyance chiefly because they wished to go to New York to live unburdened with their mother’s care and support. However, they finally yielded, and a few weeks thereafter the complainant, and Mary, and Mr. Cisco went to the office of Mr. Koester, in Hackensack, where the deed was .prepared and delivered.

Of course what occurred there is of the utmost importance upon the question of undue influence, and we will deal with this phase of the case more particularly hereinafter.

At that time, according to the undisputed evidence, the complainant was at least of average mental and physical health for a person of her age. She could read and write; her eyesight was good and her hearing fair. According to the testimony of the defendants she transacted the business with Mr. Koester herself, being alone with him in his private office, and the defendants waiting in the outer office until the deed was ready for delivery. The deed was recorded immediately. No effort was made to keep the transaction secret. The complainant frequently mentioned it'to those with whom she came in contact, and the other children seem to have been apprised of it in- due course of events and many years before this bill was filed. It is quite clear that they knew of it as early as 190-1.

We have no further evidence worthy of consideration as to the circumstances surrounding the execution of the deed. Sixteen j^ears elapsed before this bill was filed. Meanwhile Mr. Koester died and the complainant’s mental faculties have so far failed that she can give no intelligent account of what then took place. Indeed we are constrained to think that her memory is so far gone, and is so unreliable, that we cannot give any weight at all to her testimony.

Following the execution of the deed, the complainant lived with the defendants happily for sixteen years. She was supported by them there at the homestead, was furnished with ample food and clothing, was nursed and furnished medicine and medical attendance when ill. She visited and received visits from her daughter Helen and from friends and neighbors. As we shall hereafter have occasion to point out she saw freely such of her other children as she chose to see and who wished to see her.

For eleven or twelve years her mental and physical health was usually good considering her advanced age. But about 1908 or 1909 she began to fail both physically and mentally. For a time her physical ailments rendered almost constant nursing necessary. Thereafter she improved physically but continued to fail mentally. In the last year or two her mental condition rendered it necessary to put .more or less restraint upon her. Her old friend and physician testifies that in these last years she “has not been herself.” She became restive under this necessary restraint, and in May, 1913, she evaded the vigilance of her daughter Mary and went to the home of her daughter Helen Butterwortli near by.

Shortly thereafter the defendant Joseph Cisco went to Mrs. Butter worth’s and sought to induce the complainant to return to her home, but she declined to do so. In August following complainant filed this bill, acting with the assistance, and no doubt at the instigation of her daughter Helen Butterworth, and her son Warren Soper. The son Oliver had long since died and the son John took no interest in this controversy.

During these sixteen years while the defendants were thus supporting and caring for the complainant, they, paid all of the expenses. They paid the insurance upon the property. They made improvements thereon amounting to over $1,100. They paid assessments amounting to about $340. They paid the taxes amounting to over $1,600. During all these years they received no income from the property, it being unproductive. At no time did its rental exceed $25 per month, but no doubt its present market value, due chiefly to improvements in the neighborhood, is largely in excess of what its rental value indicates.

This outline of the facts and circumstances surrounding and leading up to this conveyance, when taken in connection with other facts to which we shall hereafter refer, shows, we think, that the bargain in which it resulted was a natural and provident one for the complainant to ms|ke, and that it was not the product of undue influence.

But it is contended that this conveyance should be set aside for want of “independent advice.” We think not. - It is true that if a child upon whom a parent by reason of advanced years or infirmity has- in fact come to be dependent, accepts from such dependent parent a voluntary conveyance of all of his or her estate, a court of equity, moved by the apparent improvidence of such gift, will presume that the donor did not appreciate the consequence to himself of his voluntary act, and hence will place upon the donee the burden of overcoming this presumption by showing that the donor in making the conveyance had the benefit of proper independent advice. Post v. Hagan, 71 N. J. Eq. 234. It is also true that proper independent advice, in this connection, means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person W'lo was not only competent to inform him correctly of its legal effect, but who was, furthermore, so disassociated from the interests of the donee as to be in position to advise with the donor impartially and confidentially as to the consequences to himself of his proposed benefaction. Post v. Hagan, supra. In the present case we should hesitate before saying that the defendants have not borne such burden, because as we have pointed out, the proof seems to indicate that complainant conferred privately with the quite competent lawyer who drew the deed. But however that may be it is plain that under the facts of this ease no such burden is cast upon the defendants. The conveyance was not a voluntary gift. It was for a valuable consideration. The bargain in which it resulted was a natural and provident one for the complainant to make and the defendants have borne the burden of showing that it was not the product of undue influence.

But if we were to take a different view, and were also to assume that they have failed to bear that burden, or the burden of showing absence of undue influence, still this complainant could not succeed in setting aside these deeds in the circumstances disclosed by this record.

The general rule is well settled that he who, without adequate excuse, delays asserting his rights until the pfoofs respecting the transaction, out of which he claims his rights arose, are so indeterminate and obscure that it is impossible for the court to see whether what is asserted to be justice to him is not injustice to his adversary, has no right to relief. McCartin v. Traphagen, 43 N. J. Eq. 324; affirmed, 45 N. J. Eq. 265.

Now sixteen years intervened between the making of the conveyance in question and the filing of the bill. The result was that at the time of hearing the lawyer who drew and took complainant’s acknowledgment of the 1897 deed was dead, and the lawyer who drew and took her acknowledgment of the 1898 deed had no reliable memory of the transaction. The memory of other witnesses with regard to important facts had become dim. The complainant herself had reached such an extreme age, and her mental faculties had become so far impaired as to render her testimony practically valueless. Meanwhile defendants had supported complainant and had expended large sums on the property. Such delay, in such circumstances, without adequate excuse, is a bar to relief.

We find no excuse for the delay. At the time of these conveyances and for eleven or twelve years thereafter the complainant was in the full possession of her faculties, and enjoyed fair health. She was well aware that she had made the conveyances. She was not either directly or indirectly prevented by the defendants from taking steps to avoid the deeds. She had the financial ability to protect her rights if she thought they had been violated. She was not restrained of her liberty or freedom of action. She saw and visited such of her other children as she wished to see and visit, and who wished to see her. No doubt at times the relations between her and her other children were strained. Her daughter Helen for years before and after these conveyances were made' seems to have been rather inattentive to her. No doubt complainant resented that. For seventeen years prior to the making of the deeds her son Warren seems not to have visited his parents nor contributed to their support. Indeed not until 1903, six years after the conveyances were made, did lie visit his mother, and then not again until 1908, when and later he manifested more interest. It is clear that complainant resented his inconsiderate conduct. This is made quite clear by the letter which she wrote him in 1909 requesting him to stay away and in which, not without some reason it seems, she characterized him as a “dangerous man.” This reasonable attitude of the complainant towards Warren, in our opinion, is the reason for her disinclination to see Warren, and Helen when accompanied by him, which she exhibited in the years 1908 and 1909.

As we have pointed out the complainant has left the defendants’ home and seems unwilling to return and receive support- and maintenance there as before. Of course that fact cannot justify setting aside these conveyances. The rule is that after a partial performance by the grantee of his obligation to support the grantor, the grantor may not abandon the same or prevent further performance upon the part of the grantee and take advantage of such failure to secure equitable aid to cancel or rescind the deed. See L. R. A. (N. S.) 932, note.

But there remains the obligation to support the complainant during her natural life. Where, as here, there is n® express direction where and how the support should be furnished, the person entitled to receive it is held to have a right to require it to be furnished at any place he may select, if it can be supplied there without needless or unreasonable expense. 13 Cyc. 699. In the present case, there has been no demand for outside support. But looking beneath the surface, and considering the impaired mental condition of the complainant, and her extreme age, we perceive that it would be inequitable to hold her to a strict accountability for her conduct and apparent attitude. Equity requires that at the option of the complainant provision for prompt and adequate “support during her natural life” shall be secured to her in this proceeding.

The decree below will be reversed and the record remitted to the court of chancery for further proceedings, in accordance with this opinion.

Costs will be awarded the appellant in this court.

For affirmance—Ti-ie Chief-Justice, Parker, Black, Teriiune, Heppenhbimer—5.

For reversal—Garrison, Sway-ze, Trenci-iaed, Bergen, Minturn, Kalisci-i, Vredenburgit, White, Williams—9.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    The Cumberland Trust Company of Bridgeton complainant-appellant, v. B. S. Ayars & Sons Company, defendant, J. E. Tygert Company, petitioners-respondents.
    [Argued June 18th, 1915.
    Decided November 15th, 1915.]
    A contract whereby T. agreed to ship to A., a corporation, for sale to others certain fertilizers, and providing that A. would hold in trust and separate for settlement of T.’s account with A. all said goods unsold and all currency, open accounts, notes, liens, mortgages or other value received for goods sold—Held, to preserve to T. a'legal or equitable title to such goods and their proceeds, unaffected by a chattel mortgage given by A. or its subsequent insolvency and a receivership.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. ¿79.

      Mr. Walter H. Bacon, for the appellant.

      Mr. David 0. Watkins, for the respondents.
   The opinion of the court was delivered by

Parker, J.

The questions in this case arise on the intervention of J. E. Tygert Company in an insolvency and receivership proceeding instituted by the Cumberland Trust Company, as complainants, to wind up the affairs of'B. S. Ayars & Sons Company. The complainant is holder of a mortgage on the property of the latter company, both real and personal, and the fundamental question is whether the Tygert company is prior in right to the mortgage creditors and to the title of the receivers as representing general creditors, as to certain mortgages, notes and other evidences of debt, and certain book accounts shown in the so-called “Farmers’ Ledger” of 1913, of the Ayars company, by reason of the terms of a written instrument dated November 13th, 1912, and signed for the Ayars company by “Arthur D. Ayars, President and Treasurer.”

The significance and importance of this paper will better appear when the methods of Ipusiness of the Ayars company are understood. That company was in the business of canning vegetables and fruits, receiving large quantities in crop season from various growers. To aid these growers, and help its own business, it dealt in fertilizers compounded according to various formula! and obtained from various manufacturers, including the Tygcrt company, selling such fertilizers to the growers on credit and giving credit on the price thereof for the value of products delivered later to its canning factory. All this meant little cash until the canned product was marketed. So, the Tygcrt company gave1 rather long credit to Ayars company for fertilizer delivered to it, and to protect itself made the arrangement set forth in the written instrument in question. It is framed as a proposition from Tygert company; addressed to Ayars company, agreeing to “ship” them certain fertilizers at specified prices io such amount as may be agreed upon. Then follow terms as to freight, times and places of shipment, and settlement by cash or notes of Ayars company, or of other parties, as the case may be. The important clause, near the end, is this:

“It is also agreed that you will hold in trust, and separate for the settlement of our account with you all of said goods unsold, and all currency, open accounts, notes, lions, mortgages or other values received for goods sold.”

The meaning and legal effect of this provision do not seem to be debated by appellant. Counsel for the Tygert company maintains that under the contract, and especially in view of this clause, the Ayars company acquired no title to the fertilizers delivered to them thereunder, though they could transfer good title thereto, to the various growers to whom they sold them. We need not stop to determine by what name to call this arrangement, whether a trust or a clel credere commission, or a consignment on sale, or what not; the important thing is that there was nothing illegal about the contract, that under it either no title vested in the Ayars company, in either the goods or the’ proceeds of sale thereof, or that that company was a trustee to sell these goods, collect the proceeds or obligations therefor, keep these in a separate fund, and remit to the Tygert company in due course; and that the equitable title, or,' perhaps, legal title, in all goods unsold remained the property of the latter company. No question arises in this case under the conditional Sales act; so that if the agreement was duly executed as the serious and deliberate act of the parties and remained in force, the Tygert company, as to the fertilizers and these proceeds, retained either an equitable title or a legal one, and the mortgagee acquired no lien on, and the receivers no rights to either goods or proceeds except as to such parts of the proceeds as represented profit to which the Ayars company was entitled under the contract after settlement of the claims of the Tygert company.

It was urged before the vice-chancellor, first, that the alleged contract was not binding on the Ayars company because never authorized by the board of directors, and because Arthur D. Ayars had no authority by virtue of his office to sign the same on behalf of his company; secondly, that the paper was either intended as a mere form, or, if originally entered into as a serious obligation, was subsequently waived by the assent of the parties as shown by their course of action. We cannot find adequate support for either of these propositions. With respect to the official authority of Arthur D. Ayars, it appears that he acted habitually as representing his company in somewhat similar transactions, and that the company is estopped from repudiating his authority to make such a contract as this, after the Tygert company had entrusted it with large amounts of merchandise thereunder, most of which has been disposed of. The estoppel, of course, binds the mortgagee and receiver.

The claims that the contract was not meant to be taken seriously, and was later waived, are not borne out by the evidence. Situations may arise in which an apparently solemn obligation is not intended as such by either party (McClurg v. Terry, 21 N. J. Eq. 225); but the evidence must be cogent, indeed, to induce a court to disregard or set aside a written contract sought to be enforced by one of tire parties. As to this, as well as the claim of waiver or mutual rescission, there is nothing in the case to call for serious consideration.

The court of chancery decreed that under the contract “all the said goods unsold, and all currency,' open accounts, notes, liens, mortgages or other values received for goods sold under and by virtue of the said contract, were held in trust and separate for the settlement of the account between the said B. S. Ayars & Sons Company and the petitioner at the time of the insolvency of the said B. S. Ayars & Sons Company; and that the petitioner herein has a good and sufficient title to and is entitled to all of said goods unsold and all currency, open accounts, notes, liens, mortgages or other values received for goods sold under and by virtue of said contract; and that the said receivers in this cause shall have no right, title or interest, either as receivers, or otherwise, either in said goods unsold or in the currency, open accounts, notes, liens, mortgages or other values received for such goods sold as aforesaid, excepting to hold the same in trust for tire petitioner herein.”

So far as relates to the portion of the decree declaring that the petitioner has a good and sufficient title to the goods unsold and the proceeds of goods sold, whatever form such proceeds have taken, including book accounts, and that the receivers have no right therein except to hold them for tire benefit of the petitioners, the decree will be affirmed.

But the court went further, and awarded an injunction against the receivers collecting the unpaid balances for goods sold, or interfering with the Tygert company in collecting the same. This, we think, went too far, for the reason that the accounts in the “Farmers’ Ledger” embraced charges relating not only to Tygert fertilizers, but to others received from other makers; and as such accounts would normally be indivisible for purposes of suit by the Ayars company, and the separation of the various items into those covered by the agreement and those not so covered, will be a matter of considerable difficulty, and there may be a surplus applicable to profits to which Ayars & Company would have been entitled, the convenient administration of the whole matter requires that the receivers should be left free to collect these accounts, and, under the direction of the court of chancery, segregate and pay to petitioner such part thereof as is covered by the contract of November, 1912. As to mortgages, notes and similar securities, or evidences of debt, petitioner will be entitled to have such of them from tire receivers as it may show to be covered by the contract. In these respects the decree below should be modified, otherwise it will be affirmed.

The costs will be divided.

For affirmance—Garrison, Swayze, Parker, Bergen, Min-turn, Kalisci-i, Black, Vredbnburgh, White, Teri-iune, Heppeni-ieimer, Williams, Taylor—13.

For reversal—None.


text:
    Alfred S. Wright et al., complainants-respondents, v. American Finance and Securities Company, defendant-appellant.
    [Argued June 29th, 1915.
    Decided November 15th, 1915.]
    A corporation in default to the state for four years’ taxes amounting to $16,000 and for unpaid office rent $3,800, owing money borrowed to meet current expenses $4,000, and a further legal obligation of $8,000, properly Held insolvent and a receiver properly appointed when it appeared that it had no credit and its available assets were $1,200 in cash and securities of other companies’, apparently unavailable on the market for either sale or pledge.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in SJ¡. N. J. Eq. U5.

      Mr. J. Fiihitm Taiem, for the appellant. .

      Mr. Scott Scammell, for the respondents.
   The opinion of the court was delivered by

Parker, J.

The appeal is from a decree adjudging that the defendant company is insolvent and is not able to resume business in a short time with safety to the public and advantage to its stockholders; awarding an injunction and appointing a prominent receiver. The salient facts are fully stated in the opinion of the learned vice-chancellor, ubi supra, and need not be repeated, except so far as is appropriate to our view of tire case.

The vice-chancellor rested his finding of insolvency in large measure on the theory that the instruments, in writing, issued by the company and put on the market, denominated “special contract bond” represented obligations which, to use his own language, must be taken into the reckoning in determining whether the corporation was insolvent. We have found it unnecessary to deal with this phase of the case, because we conclude that the company was insolvent, in the sense intended by our Corporation act, and the decisions thereunder, apart from any liability on these so-called bonds. This will appear by the following figures taken from the opinion below (93 Atl. Rep. 866; 84 N. J. Eq. 415) and admitted in the brief of counsel:

Liabilities—unpaid taxes....................$16,000.00
Unpaid office rent............................ 3,800.00
Findley College, agreement to redeem Empire
Lumber Co. bond for...................... 8,000.00
Note to raise money for current expenses..... 4,000.00
Total liabilities ........................$31,800.00
Assets—cash ............................... 1,200.00

This is all the assets actually in sight. Two further claims are made, first, that the Guanajuato bonds not already hypothecated, $92,500, and $10,000 hypothecated to secure the above note, can be sold at fifty per cent.; secondly, that $11,000 of Empire Lumber Company bonds now held by Findlay College and to be redeemed at $8,000 will be salable at eighty per cent. We think neither claim is substantiated. On the contrary, it appears, as stated in the opinion below, that the Guanajuato bonds are not salable in open market at any price on account of conditions in Mexico, and the company must look to one individual, already deeply involved in its securities, who would take them, if at all, only on certain conditions. Under such circumstances, it verges on the absurd to call these bonds “quick assets,” as claimed by defendant. As to the Empire bonds, they are not the property of the company, and will not be until the $8,000 due to Findlay College is paid. If they are salable readily at eighty, as claimed, that college would no doubt prefer to realize the extra $800 for itself. Plainly, they are not salable.

The company is therefore in this condition: It has no credit; it cannot pay its state taxes and is several years in default; it is likewise in default for office rent, and has pledged its securities to keep going. If the Empire bonds be offset against the claim of Findlay College, there remain the pressing items of taxes, rent and bills payable, amounting to $23,800, to pay which there is only $1,200 in cash and some bonds of a Mexican mining company, on which interest is defaulted and which are not salable or available for pledge on the market, and whose ultimate value is most problematical.

Insolvency, as understood by our courts in matters of this kind, is a general inability to meet pecuniary obligations as they mature, by means of either available assets or an honest use of credit. Trust Company v. Trustees, 67 N. J. Eq. 602, 604.

Such a condition has been shown to exist in this ease beyond all peradventure. The decree of the court of chancery was fully justified by the evidence even on the narrower ground adopted by us, and it will therefore be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Hepbeniieimer, Williams, Taylor—15.

For reversal—None.


author: Bergen, J.

text:
    Charlott E. Vaiden et al., complainants-respondents, v. William L. Edson et al., defendants-appellants.
    [Submitted July 3d, 1015.
    Decided November 15th, 1915.]
    1. Where the charges in a bill of complaint show that relief is sought against a defendant as administrator, and the prayer for process is against him individually and not in his representative capacity, such a prayer does not constitute a ground of demurrer, for an inspection of the bill will disclose the capacity in which he is to answer. Nor is the situation changed because there is also a prayer for process in his representative capacity.
    2. In the settlement of estates of decedents the court of chancery has concurrent jurisdiction with the orphans court, and is justified in assuming it where the remedy which can be afforded to the parties in interest in that court is defective or insufficient. The propriety of the interposition of a court of equity in a case where the orphans court has taken jurisdiction rests in the discretion and judgment of the chancellor, and a bill filed for an accounting by an administrator and the recovery of a legacy, charging fraudulent conduct in the administration of the estate through which the solicitor of the administrator made a profit as purchaser of lands belonging to the estate, is not objectionable upon the ground that the administrator has filed his account in the orphans court without charging himself with the secret profit of his solicitor, and which that court' has never approved.
    3. The rule with regard to multifariousness is not an inflexible one, and when the bill prays an accounting by an administrator and his solicitor, to whose hands part of the estate has come through the act of the administrator, who refuses to call his solicitor to account, and charges that the moneys in the hands of the solicitor is the result of a secret profit arising from the unlawful disposition to him by. the administrator of part of the lands belonging to the estate, the bill is not subject to a demurrer upon the ground that it is multifarious, for both defendants are interested in the subject-matter of the suit, which is capable of being determined in a single issue without multiplying unnecessary litigation.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported an-Lc p. 65.

    The complainants, Charlott B. Vaiden, Annie M. Lane, Margaret E. Holmes and George W. Jones, filed a supplemental bill in equity setting out that in the original bill it was charged one Henry Brown died testate, and by his last will and testament devised to his widow, for life, all his real and personal estate, and directed that after her death the real estate should be sold and the proceeds of his entire estate divided into two parts, one of which was given to the children of his widow and the other to the children of his sister; that the wife was appointed executor with another, but she alone qualified and filed an inventory, and also an account in the orphans court, from which it appeared that the personal property was absorbed in paying the testator’s debts; that the wife enjoyed the real estate during life, which terminated December 28th, 1907; that upon her death William L. Edson was appointed substituted administrator with the will annexed by the orphans court,, and has since held that office; that the real estate, of which the testator died seized, consisted of four tracts which are separately described; that the children of the testator’s sister as well as Margaret E. Holmes, a child of his wife, had assigned to the administrator with the will annexed their respective legacies; that the complainants are four of the children of the wife, there being five, of whom one, Elias D. Jones, had assigned his share to one Maurice C. Gay, so that the only persons interested in the estate were the complainants, Gay and Edson, the substituted administrator, who was interested as administrator and also as pxirchaser of one-half of the estate from the legatees; that Edson collected and retained the rents, issues and profits of the real estate, but refused to account or pay over to the complainants their share; that the complainants were entitled to have an immediate sale of the lands and an accounting, and prayed that Edson and Gay answer; that Edson be decreed to account for the rents received, and that the lands be sold by order of the court and the proceeds distributed. After this recital of the original bill, the supplemental bill charges that, before the filing of the original bill, Edson sold at public vendue part of the lands, described as tracts 3 and 4 in the original bill, to an intermediary, who purchased for the benefit of one Leverett Newcomb, the solicitor of the administrator, and thereafter conveyed the lands to him. The bill further charges that, by proceedings taken under the original bill, the court of chancery directed the administrator to make sale of tracts numbers 1 and 2, and that prior to making the order the vice-chancellor before whom the proceedings were had, notified both Newcomb and Edson that if Newcomb should become the purchaser of these lands he would not confirm the same, the decree being that all the lands except tracts 3 and 4, as described in the bill, should be sold by the administrator, and that after the sale the administrator should retail the proceeds of the sale of the land, and other moneys that ha? jome to his hands, including the rents, issues and profits derived from the real estate, to abide the further order of the court, and that either party might make application to the court from time to time for a decree or decrees for partial or final distribution of the moneys. That the decree further provided that the land should be sold in such manner as may seem best for the interest of the complainant Margaret E. Holmes, who had an interest in tracts numbers 3 and 4 but none in numbérs 1 and 2 as described therein. The bill further avers that, notwithstanding the order and direction of the court of chancery that Edson should file his account as such administrator in the orphans court of the county of Cumberland within thirty days from the date of said decree, which was October 30th, 1911, no such account was filed until June 21st, 1912, on which date he did file with the surrogate of the county of Cumberland an account to which exceptions were filed and overruled, but because of other manifest errors in the account Edson was ordered by the orphans court to restate his account, which order has never been complied with; that two years have elapsed since the order of the chancellor directing the accounting, and that there is no good reason why the order should not have been obeyed. The bill further charges that the sale of the tracts 3 and 4, made by the administrator before the original bill was filed, was in truth and in fact made to a trustee for New-comb, who acted at the sale as solicitor and counsel for Edson as administrator; that Newcomb has since sold the property for several thousand dollars in excess of the price paid by him, and that in equity such profit is held in trust for the estate of Henry Brown; that when the decree of October 30th, 1911, was made, complainants were not apprised of the fact that these two tracts had been bought by Newcomb through an agent. The bill further charges that the orphans court is a court of limited jurisdiction and without power to charge Newcomb, on the accounting directed to be made in the orphans court, with the aforesaid profits, and that the conduct of Edson touching the administration of the estate has operated to defraud complainants of their property rights, and that he should be required to account forthwith in the court of chancery for the moneys in his hands, and the prayer is that Newcomb be also required to account for the aforesaid profits, and that Edson be required to file his final account in this court, and that the moneys, including the profit made by Newcomb, be distributed to the person entitled thereto, and that no further proceedings touching the account be allowed in the orphans court, and also a prayer for general relief. The prayer for subpoena is against Edson individually and as administrator, Gay and Newcomb. To this bill the defendants filed separate demurrers.

      Mr. Leverett Newcomb and Mr. Letvis Starr, for the appellants.

      Mr. Louis H. Miller, for the respondents.
   The opinion of the court was delivered by

Bergen, J.

The vice-chancellor overruled the demurrers, the propriety of which action is the question presented for review. As there are different grounds advanced by each defendant in support of their respective demurrers, they will be separately considered and determined. The first ground upon which Edson relies is that process is prayed against him individually and also as administrator, claiming that as the bill contains no charges that would justify a decree against him individually, he is entitled to a dismissal for that reason.

That the bill charges him with so administering the estate in his control as to entitle .complainants to relief, if the charges are true, we think clearly appears, and the prayer for relief is confined to his liability in that capacity. The only question presented on this branch of the case is whether the bill is demurrable because the prayer for process is against him individually and also as administrator? We are of opinion that it is not, for it is not necessar}r that the prayer for process designate the capacity in which he is made a defendant if he be properly charged in the bill, for by an inspection of it he can readily ascertain in what character or interest he is called upon to answer. “The subpoena only gives him notice that there is a bill filed against him, and, if he be properly charged in the bill as executor or devisee, or in any other capacity, it is not a good objection that the subpoena is issued against him generally.” White v. Davis, 48 N. J. Eq. 22. That in this case the prayer is for process generally can make no difference, for he is thereby notified that there is a bill filed against him, and the nature of the relief prayed and the charges upon which it is founded will appear from reading the bill. Nor is the situation changed because there is also a prayer for process in his representative capacity.

The next ground of demurrer is that sufficient facts are not disclosed in the bill to support the allegation of his fraudulent conduct as administrator. There is no merit in this point. The conduct of the administrator in refusing to settle his account in the orphans court, in selling part of the land to his solicitor, and the refusal to compel him to account for and pay over the secret profits made by him, which belong to the complainants as legatees, is a sufficient specification of fraudulent conduct.

Another ground urged is that the orphans court has partially proceeded with the accounting, and that no good reason sufficient to justify the court of chancery in assuming jurisdiction appears. Concerning the power of the court of chancery to assume jurisdiction of a case of this character, it was said as long ago as 1853 by Chancellor Williamson, in Van Mater v. Sickler, 9 N. J. Eq. 483, that, in the settlement of estates of decedents, equity has concurrent jurisdiction with the orphans court, “but where jurisdiction has been assumed by the orphans court, it is not the right of a party to change the forum of settlement at his pleasure. The chancellor must exercise his discretion and judge as to the propriety of the court of chancery interposing. There are many cases where the character of the estate is such that the remedy which can be afforded to parties interested, by the orphans conrt, is defective.” We think, under the facts stated in this bill, the power of the orphans court to afford a complete remedy is defective. A part of the estate to be charged to the administrator is the profits made by Newcomb at the sale of the lands purchased by him, and this is a matter over which the orphans court has no jurisdiction, and the character of the controversy is such as to require the aid of the court of chancery in ascertaining and securing the rights of those interested therein, and in such case the court of chancery is justified in bringing the whole matter into that court in order that the estate may be completely settled without a multiplicity of suits. Filley v. Van Dyke, 75 N. J. Eq. 571.

The defendant Gay demurs because no wrong is charged, and that there is no prayer for relief against him. The bill shows that Gay is a purchaser of one of the shares of the estate, and therefore entitled to a part of the entire proceeds including the profits made by Newcomb, and he is, therefore, not only a proper but a necessary party. He is in the position of one, who, having an interest in the subject-matter, refuses to join in the bill of complaint in a case which could not be proceeded with unless he was a party. It is not unlike making a person who holds a second mortgage a party defendant where the decree ordinarily will be in his favor as to the amount due and the extent of his lien.

Newcomb demurs first upon the ground of complainants’ laches, and he urges that the land which he purchased was sold to him on the 30th day of October, 1909, by virtue of an order of the orphans court, and that complainants are only entitled to have the sale set aside when they act promptly. But the bill alleges that, at the time when the original bill was filed, they had no knowledge that Newcomb was the purchaser, and, in addition to this, the supplemental bill does not seek to set aside the sale but to recover a secret profit made by Mr. Newcomb as trustee, which he should pay over to the administrator to be by him accounted for. Under these conditions the delay cannot be said to amount to laches.

The next ground urged by Newcomb is that the bill is multifarious, because the relief prayed against Newcomb is distinct from that to which complainants might be entitled against Edson as administrator. In considering this point we must bear in mind that this is an administration suit for the purpose of gathering in the entire assets of the estate and to require the administrator to fully account.

The bill charges that the administrator sold the land to New-comb, his solicitor, through an intermediary who bought in trust for Newcomb; that Newcomb resold the land at a large profit, which the administrator has taken no steps to recover for so long a time as to justify the conclusion he does not intend to. The administrator refuses to act and the bill is. filed by those to whom he holds a fiduciary relation to compel him and his solicitor, the two wrong-doers, to account. If the bill correctly states the facts it is the duty of the solicitor to pay over the profit he has thus made to the administrator, as the representative of the complainants, in order that he may account to them.

The case made by the-bill is that the solicitor of Edson as administrator has in his hands, belonging to the estate, a profit made through the joint act of a trustee and his solicitor acting for the beneficiaries under the will, which the administrator refuses to collect or the solicitor to pay over to him, and the prayer is, in substance, that each account in order that the estate may be administered. The relief sought is not distinct, but relates to a common subject-matter, and is in furtherance of a single purpose, which is the bringing in of the assets of the estate and the distribution thereof, a portion of which is fraudulently withheld by the solicitor of the administrator who refuses to make him disgorge, thus assisting in the fraud. The theory of demur-rant is that the complainants should, under these conditions, institute two suits to bring in the assets. Mr. Justice Depue, speaking for this court, said in Lehigh Valley Railroad Co. v. McFarlan, 31 N. J. Eq. 135: “The rule with regard to multifariousness, whether arising from the misjoinder of causes of action or of defendants therein, is not an inflexible rule of practice or procedure, but is a rule founded in general converbenee which rests upon a consideration of what will best promote the administration of justice without multiplying unnecessary litigation on the one hand or drawing suitors into needless and unnecessary expenses on the other, * * * in allowing or disallowing objections of this kind, the courts are guided by the consideration whether there is a subject-matter in dispute in which all the defendants are interested, which is capable of being determined in a single issue, and the determination of which, in that method, would not involve the defendants severally in the needless expenses of the litigation of matters in which they have no concern.” In this case the issue is whether through the joint act of the two defendants, one in retaining the secret profits and the other by unlawfully consenting thereto by not acting when he should, the legatees are deprived of their equitable rights. This is a subject-matter in which both defendants are interested which is capable of being determined in a single issue in such manner as will best promote the administration of justice. We are of opinion that the relief asked against these two defendants is not, under the charges in this bill, so distinct and unrelated to a common subject-matter as to render the bill objectionable upon the ground of multifariousness.

The order appealed from will be affirmed, with costs.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kaltsch, Black, Yredbnburgi-i, White, Teri-iune, Heppenheimer, Williams, Taylor—-15.

For reversal—-Note.


author: Minturn, J.

text:
    Elizabeth and Trenton Railroad Company et al., appellants, v. Township Committee of the Township of Woodbridge, respondents.
    [Argued June 24th, 1915.
    Decided November 15th, 1915.]
    Where a corporation, organized under the General Railroad act, filed its survey and location and obtained the approval of the public utility commissioners as to its project, the fact that it failed to obtain the consent of the local governing body of the township, wherein one of its termini was located, will not warrant the latter body in interfering with the laying of the tracks within the prescribed route, and an injunction will issue to prevent such interference.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 8k N. J. Eq. 72.

      Mr. Frank Bergen, for the appellants.

      Mr. Ephraim Cutter, for the respondents.
   The opinion of the court was delivered by

Minturn, J.

The bill in this case was filed to restrain the township officers from interfering with the Public Service Railroad Company, in constructing a connecting track in Woodbridge avenue at Sewaren. The track was intended to connect the railroad company’s tracks with the tracks of a. street railway in Wood-bridge avenue, belonging to the Public Service Railway Company, under a lease. The connection was intended to enable the railway company to carry its passengers without change, from Newark to Perth Amboy. The township denied the right of the company to construct the connecting track, and to operate cars over it.

The learned vice-chancellor supported this contention, and restrained by injunction the construction of the connection, from which order this appeal has been taken.

The complainant, having been organized under the provisions of the General Eailroad act, filed its survey and location in the office of the secretary of state, showing its connection with its lessor, The Elizabeth and Trenton Eailroad Company, beginning in the middle of the' complainant’s right of way upon the complainant’s land, and running on a curve to Woodbridge avenue and continuing into the avenue, ending at a point in the tracks of the street railway, within the lines of the avenue. Permission to construct the connecting tracks was obtained from the public utility commissioners, but the permission of the township authorities was neither solicited nor obtained.

The township insists that there is no legal warrant for the operation of the cars of a railroad, operating under the General Eailroad act, over the tracks of a street railway company, operating under the general street railway law, and cites the case of State v. Atlantic City and Shore Railroad Co., 77 N. J. Law 465, in support of its contention.

We think the cases are not parallel. The prayer for relief in the bill is limited to the building and construction of the railroad connection. The determination in the case.cited was based upon the attempt of one railroad organized under the General Eailroad act to extend its operation over the line of a street railway, organized under the Street Eailway act, upon the strength alone of the purchase by the former of a controlling share of the stock of the latter company. Upon the intervention of the attorney-general the attempt to so operate was declared without legal warrant.

In the case at bar, the attempt is made by the township to prevent the making of a railroad connection which under the General Eailroad act, and the survey filed thereunder, as well as the approval of the public utility commissioners, the complainant is legally entitled to perfect.

In other words, the effort on the part of the complainant, as we perceive it, is not one of operation but one of construction. The issue therefore is reduced' to the single inquiry whether a corporation organized under the General Railroad act, with its survey and location filed, as required by law, covering the locus in quo, and its project stamped with the imprimatur of the public utility commission, may connect its tracks ujJon a public highway, with the tracks of another railroad company, represented in its survey as one of the termini of its route, without interference from the governing body of the town where such termini is located.

The authorities quite unanimously answer this inquiry affirmatively. Hudson Co. v. Central Railroad Co., 68 N. J. Eq. 500; Long Branch v. West End Railroad Co., 29 N. J. Eq. 566.

The result is that the decree of the court of chancery appealed from must be reversed, to the end that an order be entered, that an inj unction may issue according to the prajrer of the bill.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenoi-iard, Bergen, Minturn, Kalisch, Black, White, Teri-iune, IIeppenheimer, Williams, Taylor—13.


author: Teri-iune, J.

text:
    Amos C. Fisler, appellant, v. Ida M. Fisler, respondent.
    [Submitted July 6th, 1915.
    Decided November 15th, 1915.]
    Where a wife has willfully deserted her husband and has' obstinately persisted in repelling his solicitations to return to him, the refusal of the husband to have an interview in a room alone with her, when it was not suggested by ber that sbe might be induced at sueb interview to return to tbe borne that be bad provided, is no bar to bis 'right to have a divorce from ber.
    On an appeal from a decree of the court of chancery advised by Advisory Master Forman Grey.

      Mr. William Harris, for the appellant.

      Messrs. Scovel & Harding, for the respondent.
   The opinion’of the court was delivered by

Teri-iune, J.

This is an action for divorce by a husband upon the ground of the wife’s desertion. Desertion to prove effective must possess three well-recognized essentials. It must be willful, continued and obstinate. The principal question to be answered in this case*is whether after the desertion had occurred and during the statutory period of two years preceding the filing of the petition, the desertion lost the third or last necessary characteristic by the refusal of the petitioner to grant his wife a personal interview in some private place where the two could be alone together. The advisory master, who heard the case, concluded from the testimony as follows:

“I report that under these facts and circumstances the defendant was guilty of desertion; that she left her husband without cause, and refused to live with him in a proper home supplied by him for them both, and that such desertion was willful.”

In this conclusion of the advisory master we concur.

He'further reported, however, as follows: “That the petitioner has not performed the duty required of him by the law; that he should even, though his wife deserted him, seek her out and endeavor to persuade her to return to him and at least disclose to her a continuing desire on his part that she should resume marital relations with him.”

The parties to the suit lived in Camden county and were married in 1907. He was twenty-two years and his wife eighteen years of age. No children were born of the marriage. After living in various places they took in the spring of 1912 apartments in Philadelphia. It is not necessary to record in this opinion the family differences of this young couple. He was a traveling man engaged in a business which kept him for long periods away from home. She appears to have been a pleasure loving young woman, self-reliant, dependent upon his business energies for her support, but not upon his society for her happiness. He heard runrors of her absence from home and attentions paid her that annoyed him. Matters continued more or less unsatisfactory, until one Saturday, in the latter part of June, 1912, he returned home unexpectedly after an absence of some six weeks. On his arrival she informed him that she had arranged to go to the shore the next day with some girls, that as there were to be no men in the party, he would be out of place. He spent this Sunday with his people, his wife, according to his testimony, reaching, home between eleven, and twelve o’clock at night. While it developed that during this trip the wife for a part of the time at least was in the company of a young man, there is no proof of any improper relations, and the only significance in referring to the incident is the part it no doubt played in influencing and hastening the husband’s determination to give up the apartment in Philadelphia, and thereby remove his young wife during his periods of absence from tire influence of strangers having no interest in her moral welfare, and place her where, if so inclined, she could have the benefit of his and her own families’ influence. A few days after this incident he informed her that in view of the fact that his business kept him so much away from home, he proposed giving up the Philadelphia apartment. He thereupon induced his mother to move from a fifteen-dollar per month house on Linden street, Camden, to a new house with all modern conveniences on the same street, commanding a rent of $28 per month. He engaged two front rooms in this house, with the use of a bath, .and furnished the same with the furniture taken from the Philadelphia apartment. He arranged that they could either take their meals with his mother, get them themselves, or go outside for them. When his wife objected to going with him to this home on the ground that she did not want to live in the same house with his mother, he informed her that the arrangement might prove only temporary; that he did not want her to be entirely alone during his many and prolonged absences from home; that if conditions proved congenial they could continue to live there, and if not, he agreed to move any time she might so desire. He further urged her to come with him there at least until he could secure a permanent position in Philadelphia or Camden where he could be home with her nights. In his endeavors to influence her he had his sister, Minnie E. Eisler, early in July, 1912, call on her. She testified: “I told her to come over. We would do all in our power to make her happy,” &e. She replied, “That she would think it over, but that she thought it would be better for him to go his way and she would go her way.” In addition to this his mother sent her small daughter, Florence, over with a note urging her to come. She- sent word back that she would think the matter over. She maintained this unresponsive attitude until about July 15th, 1912, this being the day they moved from the Philadelphia apartment. She then informed her husband that she had decided to go to her mother’s home; that she would not go with him. This she did. For the next three or four nights he sought out his wife at her mother’s house and pleaded with her to come home with him. She refused. About this time his business called him to Buffalo. He conceived the idea of taking her with him, hoping while on the trip he might prevail upon her upon their return to come home and live with him. They remained away ten days, and were apparently happy, but on the return to Camden 'she again refused to go with him, giving as her reason that she .would not live in a house occupied by his mother. This was about the 16th or 17th of August, 1912. For the next three or four days after the return from this trip, petitioner again sought out his wife at her mother’s house, and sincerely endeavored to persuade her to live with him under the arrangements before indicated. She refused, and the final parting ensued. Clearly, under the circumstances, considering the situation of the husband and the disposition of the wife, the home offered by him was a suitable and proper one for temporary purposes, at least. He, realizing that she had left him with a fixed determination not to return, and that any effort on his part to induce her to return would prove futile, abandoned further effort. With the exception of some formal letters relating to the method of paying the weekly allowance which he voluntarily made her, there was no further communication between the couple until probably the month of May, 1913, and this brings us to what apparently was responsible for the advisory master’s final conclusion in the case, the interview heretofore referred to in this opinion.

In the spring of 1913, probably, the month of May, the defendant met the petitioner at the ferry, in Camden, on his return from his business in Philadelphia. The meeting, although arranged by her, was entirely unexpected by him. They walked up Cooper street together. She asked him if he intended to put her in the home he had promised. He denied having promised her anything of the kind. He said that his home was still open. He requested her to come there, saying that in view of the fact that he was away from home so much it would be more congenial and pleasant for her there. She restated her position, stating that she would not come to live with his mother. She then asked for a personal interview alone with him, stating that she had something important to say to him. He refused this request, but told her that if she had anything to say, to tell him there on the street, or write him a letter. When asked by the advisory master why he refused such an interview, he stated in substance that he was unwilling to be alone with her lest something might occur that would make it necessary for a new period of two years to run from that time. Whether it was incumbent upon the petitioner upon this occasion to grant -his wife’s request to be alone with him for the purpose of an interview depends upon whether she gave him any evidence at the time, of a change of mental attitude in the matter. A careful analysis of the testimony shows that she did nothing of the kind. On the contrary, she prefaced her request by a reiteration of her original position. She did not in any way disclose, make manifest or give him reason to believe that he could overcome her original fixed determination not to live with him except upon her own terms, but rather made it apparent to him that a renewal of his former efforts would prove futile and unavailing. Had she changed her attitude she could have ended this case then and there by simply tendering herself ready and willing to accept his proposal and live with him in the home he had prepared for her. Her husband knew that she had previously taken the advice of counsel; that she was carrying out some preconceived plan. He realized that she could write or talk with him there in the open with the same degree of privacy, so far as their conversation being overheard was concerned, as in a private room.

Looking at this meeting at the ferry from all standpoints, we can discover nothing that altered the legal status of the parties to this suit. The rule in this class of cases is laid down in the case of Hall v. Hall, 60 N. J. Eq. 469; 46 Atl. Rep. 866. The opinion in this case by Chief-Justice Gummere holds: “That a desertion, in order to be obstinate, must be persisted in against the willingness of the injured party to have it concluded is declared by all our cases; and, ordinarily, when the husband has, by his conduct toward his wife, contributed in any degree to, her original desertion, the law requires that he should evidence that willingness by making such advances or concessions to his wife as might be reasonably expected to induce her to return to him.

“But the law does not impose this duty upon the husband in every case arbitrarily and without regard to the facts and circumstances by which it is surrounded. The husband is bound to make such advances and ■ concessions only where there is reasonable ground to suppose that such action on his part will terminate the wife’s desertion. Where it is manifest from the circumstances under which the desertion took place, or from her temper and disposition, or from any other fact in the case, that honest effort on the husband’s part to terminate the separation would be unavailing; or, if successful in bringing the desertion to an end, would be so only temporarily, the duty of making it does not exist.” See, also, Rogers v. Rogers, 81 N. J. Eq. 479.

In the light of the above opinion, we conclude that the petitioner was justified in refusing a private interview, which, while it offered no hope of a reconciliation, did suggest an interruption of the continuity of the statutory period.

The above views lead to a reversal of the decree below and the granting of a final decree of divorce to the petitioner and the appellant.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, ' Black, Vredenburgi-i, White, Teri-iune, Heppeni-ieimer, Williams, Taylor—15.


author: Per Curiam.

text:
    The Cumberland Trust Company, complainant, v. B. S. Ayars & Sons Company et al., defendants.
    [Argued June 18th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in S3 N. J. Eg. 479.

      Mr. Waller II. Bacon, for the appellants.

      Mr. David 0. Watlems, for the respondent J. E. Tygert Co.
   Per Curiam.

The questions arising on this appeal are disposed of in the opinion of this court on the appeal of Cumberland Trust Co., decided at the present term, and the disposition of this appeal 1 will be the same as of the other.

For affirmance—Garrison, Swayize, Parker, Bergen, Min-turn, Kalisch, Black, Vredenburgh, White, Teri-iune, Heppenheimer, Williams, Taylor—13.

For reversal1—None.


text:
    David F. Plahn, administrator, appellant, v. Charles L. Givernaud et al., respondents.
    [Argued June 18th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 81 N. J. Fq. 66.

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

      Mr. Gilbert Collins and Mr. Dougal Herr, for the respondents.
   Per Curiam.

The appeal in this case was taken by Plahn, administrator of Jeanne M. J. Givernaud, from a final decree dismissing the complainant’s bill. The decree was made on the 8th day of January, 1913, and the appeal was taken on the 6th day of July, 1914, nearly á year and six months later.

Eor the reasons stated in our opinion in disposing of the appeal taken by the defendants from an order of the chancellor extending the time of the complainants for filing their appeal from January 8th, 1914, to July 8th of that year, the present appeal must be dismissed.

For affirmance—None.

For reversal—The Chibe-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Iyalisci-i, Black, Vredenburgh, White, Teri-iune, I-Ieppeni-ieimer, Williams, Taylor-—15.


text:
    Samuel McD. Riker, appellant, v. Mignonette M. Riker, respondent.
    [Argued June 21st, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Advisory Master John Franklin Fort.

      Messrs. Goult & Smith, for the appellant.

      Mr. Ohauncey G. Parlcer, for the respondent.
   Per Curiam.

The decree order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master Fort.

For affirmance—The Chiee-Justice, Garrison, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, Heppenheimer, Williams, Taylor—12.

For reversal—None.


text:
    Albert C. Weed, appellant, v. Township of Hillsdale, respondent.
    [Argued June 21st, 1915.
    Decided October 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, who filed the following opinion:'
    I have examined the papers and briefs in this case, and it seems to me that a review of the cases in this State and elsewhere all lead one to the conclusion that the court of equity has no jurisdiction in the matters involved in this issue, and that the appropriate remedy is by a suit at law. I do not find in the brief a ease which authorizes a court of equity to interfere by injunction with the enforcement of an ordinance adopted by the governing body of a municipality for the regulation or construction of approaches upon its highway, and I cannot agree that the case falls under the second and third classes enumerated in Hart v. Leonard, N. J. Hq. L16. The testimony discloses that the right claimed by the complainant to maintain an obstruction of. any kind along the gutter of the Pascack road is not admitted, and the legal right is assuredly in dispute. The evidence of complainant and defendant is at variance with any such contention. The law court is the appropriate forum to try out the issue involved in this litigation before this court can take jurisdiction.

      Messrs. Collins & Corbin, for the appellant.

      Mr. Warner W. Westervelt, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Lewis.

For affirmance—Ti-ie Chief-Justice, Garrison, Swayze, Trenci-iard, Parker) Bergen, Minturn, Kaliscit, Black, Vredenburgit, Heppenheimer, Williams, Taylor—13.

For reversal—None.


text:
    Henry W. Bull et al., respondents, v. International Power Company, appellant.
    [Argued June 22d, 1915.
    Decided October 15th, 1915.]
    On appeal from an. order of the court of chancery made by the chancellor, whose opinion is reported ante p. 5.

      Messrs. Bleakly & Stockwell and Mr. Gilbert Collins, for the appellant.

      Mr. Joseph L. Bodine (Messrs. Batteries, Canfield & Stone, of New York, on the brief), for the respondents.
   Per Curiam.

This appeal was taken from an order of the court of chancery directing the receiver appointed in the cause to take possession of the assets of the defendant corporation, and to proceed with the work of winding up its affairs, notwithstanding the appeal taken by the defendants from the final decree in the cause adjudging it to be insolvent, and appointing the receiver. We consider the order made by the chancellor to be a proper exercise of his judicial power, and for the reasons which were stated by him orally at the close of the argument made on the application of the complainants for such order, and which reasons were as follows: “I am prepared to decide this application now. I think this is a ease in which, with propriety, the application for the enforcement of the decree pending the appeal may be, and should be, granted. The bill and answers and the affidavits on the final hearing on thd application for adjudication of insolvency, and the appointment of a receiver, clearly showed that this defendant company had flouted a writ of mandamus issued out of the supreme court, commanding the company to exhibit its books to the complainants, or certain of them; and also an order of the supreme court afterwards made to bring those books' into the state and leave them with the Corporation Trust Company, its registered agent in this state, so that - they might be inspected by the complainants, or some of them.

“It appears, now, fairly, I think, on these motion papers that the same sort of opposition to, or rebellion against, the authority of this court has been attempted, in keeping from the receiver the possession of books and assets and documents of the company at a time when no appeal was pending from the court’s decree adjudging insolvency and appointing the receiver.

“The defendant is a holding company; it simply has possession of securities which, under the preliminary injunction still in force, it has not the power and is not at liberty to sell, encumber, or otherwise dispose of. An appeal has been taken from the decree. That appeal cannot be heard until next March, and in the usual course would, doubtless, not be decided until next’ June. If the decree of "this court should be affirmed, and in the meantime the receiver’s hands should be tied, he would have no opportunity to pursue this company for the possession of its assets until some time next summer. I cannot see any impropriety whatever in putting him, so far as the court can put him, in the possession of this company’s property, these securities, pending this appeal; and if, on its determination, the decree should be reversed, the receiver, by a single act, in a few hours could restore to the company the possession of its property which, in his possession in the meantime, would be safeguarded and not invaded. So, that, I think this is, as I have said, pre-eminently a case where with propriety a decree may be, and I think should be, in all the circumstances, enforced, pending the appeal.”

The order appealed from will be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Minturn, ICalisch, Black, Taylor, Heppenheime-r—10.

For reversal—None.


text:
    Henry W. Bull et al., respondents, v. International Power Company, appellant.
    [Argued June 22d, 1915.
    Decided October 15th, 1915.]
    On appeal from a decree of the court of chancery made by the chancellor, whose opinion is reported in 81>- N. J. Fq. 6, 209.

      Messrs. Yroom, Diclcinson & Boiine, for the respondents.

      Messrs. Blealcly & Btoclcwell, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Chancellor Walker.

For affirmance—The Chieif-Justice, Garrison, Swayze, Trenchard, Bergen, Minturn, ICalisch, Black, Heppeni-ieimer, Taylor—10.

For reversal—None.


author: Pee Curiam.

text:
    Dinah Schneider et al., respondents, v. Emma Schmidt et al., appellants.
    [Argued June 22d, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice,-Chancellor Emery, whose opinion is reported in 8L N. J. Eq. IS. '

      Mr. Alfred F. Stevens, for the appellants.

      Mr. William 4. Lord, for the respondents.
   Pee Curiam.

The decree order appealed from will be affirmed,.for the reasons stated in the opinion filed in the court below by Vice-Chancellor Emery.

■For affirmance—The Chief-Justice, Garrison, Swayze, Trenchaed, Bergen, Minturn, Kalisch, Black, Heppenheimer, Williams, Taylor—11.

For reversal—None.


text:
    Gertrude Towne, appellant, v. Claude Towne, respondent.
    [Argued June 28th, 1915.
    Decided November 15th, 1915.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Learning.

      Messrs. Thompson & Smothers, for the appellant.

      Mr. William B. Knight, for the respondent.
   Per Curiam.

On the hearing of this habeas corpus the vice-chancellor, having the parties before him and after hearing their testimony, awarded the custody of a child to the respondent, its father. Later, upon an application by the appellant for a reargument, the vice-chancellor in denying the motion stated briefly the grounds of his original decision as follows: “The mother is without means of support, and her maintenance and that of her child rests on the generosity or charity of her stepfather. There is in the home of the grandparents a spirit of antagonism to the father which renders that home an unsuitable place for the custody of the child; the custody of the child in that home will not only be operative to practically deny to the father and child alike the benefits of even temporary enjoyments of mutual intercourse, however liberal or specific an order of visitation should be made, but will clearly be operative to alienate the affections of the child from her father. It cannot be properly overlooked that the custody which is sought by the mother is in truth and effect the custody of the grandparents. On the other hand, the father is not only able but will properly provide for the care of the child, and his home will always be open to the mother, and in his custody lies the best interests of the child, in my judgment.”

We concur in the views thus expressed and in the result to which they lead.

The order of the court of chancery is affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Teri-iune, Heppenheimer, Williams, Taylor—11.

For reversal—Kalisoh, Black, Vredenburgh—3.


text:
    William A. Copeland et al., respondents, v. United Shoe Machinery Company et al., appellants.
    [Argued June 30th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is' reported in 8Jf N. J. Eq. 276.

   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance—The Chief-Justice, Garrison, Swayze, Parker, Bergen, Minturn, Kalisoh, Black, Vredgnburgii, Heppenheimer, Taylor—11.

For reversal—None.


text:
    Wendel Andreas, appellant, v. Hattie Andreas, respondent.
    [Argued July 2d, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 81¡. N. J, Eq. 875.

      Messrs. McOwrter ,& English, for the appellant.

      Messrs. Vredenburghj Wall & Garey, for the respondent.
   Per Curiam.

The bill in this case was filed by the husband against his wife to compel her to convey to him a tract of land which originally was owned by him, and which he had deeded to her through one Van Valen as a conduit. His claim was that the premises were conveyed to the wife under conditions which created a resulting trust in his favor, and that she refused to execute that trust. The contention of the wife was that the conveyance was intended to be by way of a voluntary settlement upon her. The learned vice-chancellor before whom the case was heard, after a consideration of all the testimony, concluded that the complainant had failed to rebut the presumption of a gift in favor of the wife by proof of the convincing character required in such a case. We concur in the conclusion thus reached, and are satisfied with ,the opinion of the vice-chancellor upon this point. This being so we find it unnecessary to consider the other question discussed by him, namely, whether, if the proofs submitted by the complainant had been sufficient to establish a resulting trust, his purpose in creating it (to induce the tax assessor to cut down the assessed valuation of certain lands held by him of which the locus in quo was a part), was so contrary to public policy as to justify a court of equity in refusing its aid in enforcing the trust.

The decree appealed from will be affirmed.

For cbjjvrmmce—The Ci-iiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisoh, Black, Vredenburgh, Heppenheimer, Williams, White, Terhune, Taylor—15.

For reversal—None.


text:
    Wendel Andreas, respondent, v. Hattie Andreas, appellant.
    [Submitted July 5th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 84 N. J. Eq. 868.

      Messrs. McCarter & English, for the appellant.

      Messrs. Vredenburgh, Wall & Carey, for the respondent. .
   Per Curiam.

The decree order appealed from will be affirmed, for the reas.ons stated in the opinion filed in the court below by Vice-Chancellor Howell.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, Vredenburgi-i, I-Iepbeni-ieimer, Williams, Taylor—13.

For reversal—None.


text:
    Viola Attwood, appellant, v. Arthur Attwood, respondent.
    [Submitted July 5th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported ante p. 87.

      Mr. Barton B. Hutchinson, for the appellant.

      Mr. Erwin E. Marshall, for the respondent.
   Per Curiam.

The decree order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Lewis.

For affirmance—Ti-ie Chief-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, Vredenburgi-i, ECeppeni-ieimer, Williams, Taylor—13.

For reversal—None.


text:
    Isaia Calichio, respondent, v. Elizabeth Calichio, appellant.
    [Submitted July 6th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Advisory Master Charles J. Eoe.

      Mr. Alexander Simpson, for the appellant.

      Mr. John Miltonj for the respondent.
   Per Curiam.

The decree order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master Eoe.

For affirmance—The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Vredenburgh, Heppenheimer, Williams, Taylor—13.

For reversal—None.


text:
    Lilla M. Flournoy, appellant, v. William H. Tichenor, respondent.
    [Submitted July 6th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.

      Messrs. Coult & Smithy for the appellant.

      Mr. Walter H. Tiehenor and Messrs. Lehlbach & J ohnson, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance—Ti-ie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Vredenburgi-i, Heprenheimer, Williams, Taylor—13.

For reversal—None.


text:
    John F. Monahan, appellant, v. Barney Larkey et al., respondents.
    [Submitted July 6th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery.

      Messrs. Melosh & Morten, for the appellant.

      Messrs. Teeple & Unger, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Emery.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgi-i, Heppeniieimer, Williams, Taylor—13.

For reversal—None.


text:
    George L. Warren, petitioner and respondent, v. Louise D. Warren, defendant-appellant.
    [Submitted July 6th, 1915.
    Decided November 15th. 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.

      Mr. Samuel Press, for the appellant.

      Mr. John A. Bernhard, for the respondent.
   Per Curiam.

This was a suit for divorce brought by the husband for alleged adultery on the part of the wife. Vice-Chancellor Stevens, in an oral decision, held that the adultery charged was satisfactorily proved, and advised a decree according to the prayer in the petition. We have examined the testimony and other evidence and reach the same conclusion as the vice-chancellor. The decree will accordingly be affirmed.

For affirmance—'The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, Terhune, Heppenheimer, Williams, Taylor —14.

For reversal—None.


text:
    Simmons Watkins et al., complainants, v. Julia E. Watkins et al., defendants.
    [Submitted July 6th, 1915.
    Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 82 N. J. Fq. 488.

      Mr. William C. Jones and Mr. Joseph H. Gashill, for the appellants.

      Messrs. Ott & Carr, for the respondents.
   Per Curiam.

The decree order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance■—-The Chiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, Heppenheimer, Williams, Taylor—13.

For reversal—None.


text:
    The Building and Loan Association Harmonia v. Henry F. Wolfskeil, receiver, et al.
    [Decided November 15th, 1915.]
    On appeal from a decree of the court of chancery advised by Advisory Master William J. Magie.

      Mr. Patríele H. Gilhooly and Mr. Albert F. Bender, for the appellant.

      Mr. David S. Feinswog, for the respondent.
   Per Curiam.

This is an interpleader suit. The fund paid into court by the complainant was received by it from one Phillippo Rocco. It is claimed, on the one hand, by Wolfskeil, the receiver, who was appointed in supplementary proceedings had on a judgment recovered against Rocco by one Thompson, and, on tire other, by the Heidritter Lumber Company, as a creditor of Rocco.

We concur in the conclusion reached by the advisory master that the right of the receiver to the fund in litigation is superior to that asserted by the lumber company as a creditor of Rocco, notwithstanding the fact that the moneys which were deposited by Rocco with the complainant, building and loan association, were advanced to him by the lumber company for the purpose of making such deposit; and we are content with the views expressed by the advisory master in support of that conclusion.

The learned advisory master devotes a part of his opinion to a consideration of the question whether an assignment made by Rocco to the lumber company of his interest in this fund, prior to the date of the appointment of the receiver, but subsequent to the institution of the supplementary proceedings which resulted in the latter’s appointment, vested in the assignee a title to the fund superior to that of the receiver, and reached the conclusion that it did not. We, however, do not find it necessary to consider this question, for the reason that counsel for the lumber companjq when offering the assignment in evidence, specifically stated that they made no claim that the effect of the assignment was to transfer to the lumber company the title to the fund.

The decree under review will be affirmed.

For affirmance—Ti-ie Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppeniieimer, Williams, Taylor—15.

For reversal—None.


text:
    The American Pin Company, complainant-appellant,* v. Alfred A. Wright et al., defendants-respondents.
    [Decided March 4th, 1901.]
    On appeal from a decree of the court of chancery advised by Yiee-Chancellor Pitney, whose opinion is reported in 60 N. J. Fq. H7.

      Mr. Frank F. Bradner, for the appellant.

      Mr.tEdwin B. Goodell and Mr. Frank F. McDermott, for the respondents.
    Note.—This opinion was inadvertently omitted from the list of opinions for the November term, 1900, contained in volume 62 N. J. Eq.—Rep.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Pitney.

For affirmance—The Chiee-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Bogbrt, Krueger, Adams, Vredenburgh, VobEHEES—12.

For reversal—None.