text:
    Friendship Telephone Company, a corporation, v. Newark Telephone Company, a corporation, et al.
    [Submitted December 10th, 1917.
    Decided March 4th, 1918.]
    1. -Oil the application of the receiver appointed by the court of chancery to wind up the affairs of ai corporation, incorporated under the Telegraph Companies act (Comp. Stat. p. 5312), whose charter has expired by its own limitation, the court of chancery has jurisdiction to fix the terms and conditions of the sale of the property and to determine whether it shall be sold together or in parcels, and all other questions incidental to the disposition of the property.
    2. When the business of a telephone company, incorporated under the Telegraph Companies act {Camp. Stat. p. 5812), is discontinued as a statutory consequence of the expiration of its charter, its physical property is not forfeited, but is appropriated by law to the payment of its debts and for distribution to stockholders in a winding up proceeding.
    3. Where the charter of a telephone company, incorporated under the Telegraph Companies act {Comp. Stat, p. 5812), has expired by its own limitation, and the court of chancery 'has appointed a receiver to wind up its affairs on, dissolution, under section 5G of the Corporation act {Comp. Stat. p. 1636), it is competent for that court, when justice and equity require it, to order a sale of its physical property, apart and free from its franchise to use the streets, when the ordinance of the city granting such secondary franchise contains no provision or condition prohibiting' the separation of the physical property and the franchise.
    Appeal of the city of Newark from an order of tlie court of chancery advised by Vice-Chancellor Lane.

      Mr. Harry Kalisch, for the appellant mayor and common council of the city of Newark.

      Mr. Corwin Howell and Mr. John R. Hardin, for the respondent New York Telephone Company.
   The opinion of the court was delivered by

Trenchard, J.

This is an appeal from an order of the court of chancery refusing to modify an earlier order directing the receiver of the Newark Telephone Companj to accept an offer to purchase the physical property of the company, separate from its secondary franchise.

The Newark Telephone Company was incorporated August 7th, 1895, under the Telegraph Companies act. Comp. Stat. p. 5312. By the certificate of incorporation its existence was limited to twenty years. Its charter, therefore, expired on August 7th, 1915. After the expiration of the charter, on bill filed by a stockholder and creditor, George W. C. McCarter was appointed by the court of chancery receiver to wind up its affairs on dissolution under section 56 of the Corporation act. Comp. Stat. p. 1636. Pursuant to the requirements of the statute he discontinued the business and proceeded to settle and close the affairs of the corporation and incidentally to dispose of its property.

The property of the corporation comprised (1) physical assets, consisting of conduits, exchange poles, central office equipment,, exchange pole lines, exchange underground cable, office furniture and fixtures, general tools and implements, materials and supplies, appraised at $66,343; and (2) a franchise to use the streets granted by an ordinance of the city of Newark passed December 5th, 1895.

In June, 1917, the receiver received an offer from the New York Telephone Company, the respondent herein, to purchase-all the physical property and plant of the Newark Telephone Company, “but not including the franchise, or in any way subject to the franchise granted to said company by the city of Newark” for the sum of $75,000 in cash, subject to the approval of the court of chancery.

The receiver brought this offer before that court and an order was made directing the city of Newark and the creditors and stockholders of the Newark Telephone Company to show cause why the receiver should not be ordered to accept the offer. This order to show cause was duly served, and, no one appearing on the return day, the vice-chancellor directed that the offer should be accepted.

Thereafter the city of Newark made an application that the-order directing acceptance of the offer be opened and modified and, after hearing, the application was denied. The city now appeals and challenges the power and jurisdiction of the court to make the order directing the sale of the physical property and' assets apart and free from the franchise granted to the company by the city.

We are of the opinion that the court of chancery had jurisdiction and that its order was proper.

The jurisdiction of the court to direct its receiver in the disposition of the property of a dissolving corporation cannot be-doubted.

Under section 53 of the Corporation act (Comp. Stat. p. 1634) all corporations, whether they expire by their own limitation or be otherwise dissolved, are continued bodies corporate for two purposes — (1) to prosecute and defend suits, and (2) to enable them “to settle and close their affairs, to dispose of and convey their property and to divide their capital, but not for the purpose of continuing the business for which they were established.”

In Grey v. Newark Plank Road Co., 65 N. J. Law 603, it was in effect held that the expiration of the charter of a corporation does not result in the forfeiture of its assets.

By section 54, upon the dissolution of a corporation, its directors are continued as trustees

"with full power to settle the affairs, collect the outstanding debts, sell and convey the property, and divide the moneys and other property among the stockholders, after paying its debts, so far as such moneys and property shall enable them.”

The directors are given power to prescribe the terms and conditions of the sale of the property, and to sell all or any part for cash, or partly on credit, and to take mortgages and bonds for part of the purchase price for all or any part of the property.

Btr section 56 jurisdiction is conferred upon the court of chancery, when any corporation shall be dissolved, upon the application of any creditor or stockholder,

“to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation * ■* * and to do all other acts which might be done by such corporation, if in being, that may be necessary for the final settlement of its unfinished business.”

For the purpose of exercising this jurisdiction the court may continue the directors as trustees, or may appoint a receiver of the corporation, “and the powers of such trustees or receivers may be continued as long as the court shall think necessary for such purposes.”

Section 57 provides:

“The court of chancery shall have jurisdiction of said application and of all questions arising in the proceedings thereon, and may make such orders and decrees therein as justice and equity shall require.”

In the present case the court of chancery exercised this jurisdiction by appointing its receiver, and it had complete control over all questions arising, its jurisdiction being as broad as “justice and equity shall require.”

It follows, therefore, that the court had jurisdiction, on application of the. receiver, to fix the terms and conditions of the sale of the property, and to determine whether the property should be sold together or in parcels, and all other questions incidental to the disposition of the property.

It seems to be contended bj the city that the company’s physical property was forfeited to the city by reason of the discontinuance of its business upon the expiration of its charter. Not so. The discontinuance of the telephone service was the statutory consequence of the expiration of the charter and was not the affirmative act of the corporation. Upon the expiration of its charter the statute appropriated its property in payment of its debts and for distribution to its stockholders in a winding up proceeding.

The real contention of the city is that the order for separate sale is improper because the physical assets of the company are so united to the franchise granted to it by the city that such physical assets cannot be sold separate from the franchise. • We think that contention is unsound.

The company was incorporated under the. Telegraph Companies act of 1875, and the acts supplementary thereto and amendatory thereof, and by such incorporation acquired not only the powers especially mentioned in that act, but also acquired all the powers and became subject to all the provisions of the Corporation act, and the acts supplementary thereto and amendatory thereof.

By section 1 of the act of 1875 (Rev. of 1877 p. 1174; Gen. Stat. p. 3457) it is provided that the incorporators, upon taking the steps outlined for incorporation, shall thereby become a body politic and corporate, with power to sue and be sued,

“to purchase, hold or convey any personal or real estate as may he necessary for tile purposes of this act, with all the powers ancl subject to all the provisions of the act concerning corporations.”

Later, section 1 of the act was amended (P. L. 1900 p. 74; Comp. Stat. p. 5812 § 1), changing the clause above quoted so that it reads

“to purchase and convey such real and personal estate as the purposes of the corporation shall regime, with all the powers and privileges contained in the act concerning' corporations, so far as the same are necessary or convenient to the attainment of the objects set forth in said certificate, and subject to the provisions, restrictions and liabilities contained in said act, so far as the same are appropriate to and not inconsistent with this act.”

By the Corporation act (Comp. Stat. p. 1597 § 1 subsection 4) a corporation is empowered “to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require * *

There is, therefore, no doubt that the Newark Telephone Company, had its charter not expired and were it not now in the hands of a receiver on dissolution (who has undoubted power to convey under sections 53 and 56 of the Corporation act), would have full power to convey such real or personal property “as the purposes of the corporation shall require,” and there is nothing in any of these enabling statutes which requires the inseparable union for all time of the secondary franchise and the phvsical assets of the corporation.

It also is quite plain that the ordinance itself, by which the city granted to the company the right to use its streets, does not impose any conditions which interfere with the separation of the physical assets and the franchise in the circumstances now presented.'

Section 12 of this ordinance provides that' in case the franchise granted thereby shall be assigned by the company to any other person or corporation, the franchise so assigned shall ho held and enjoyed by the assignee, subject io all the conditions and restrictions of the franchise. It further provides that in case the assignee is vested with any similar franchises

“all such privileges and franchises at that time belonging to such assignee or transferee shall, after such assignment or transfer, be held and enjoyed subject to all the conditions, restrictions, limitations and payments aforesaid.”

Section 16 provides that the rights and privileges granted thereunder shall cease and be determined at the expiration of fifty years from passage of the ordinance, and that at the expiration of that period

“all of the subways, cables, wires, conduits and other property or appliances of said telephone company then within the streets or public places of the City of Newark, shall become the property of the City of Newark, and the title thereto shall pass to and vest in the Mayor and Common Council of the City of Newark.”

Nowhere in the ordinance is there any prohibition of the right of the company to sell its physical assets. They might be sold and removed from the “streets or public places of the city” and would in that case be freed from the reversion clause of the ordinance. It is only the physical property then in the streets or public places of the city (namely, in 1945) and then the property of the company which under the provisions of the ordinance are to revert to the city.

The company made no effort in its lifetime to dispose of either its physical assets or its secondary franchise, though both were salable, and now by the expiration of its charter it is incapacitated to further continue its business and enjoy either its physical assets or its franchise.

The situation that arises therefore is that we have a receiver with undoubted power to sell. We have, further, certain physical assets under his control and a certain franchise, all subject to the receiver’s power of sale. The franchise, however, is rendered practically unsalable by section 12 of the ordinance, since no utility company is likely to purchase this franchise with the' possibility that its terms would be affixed to an existing franchise of. the purchaser. It is also highly probable that the physical property is practically unsalable except to a purchaser who expects to be able to use it under an existing franchise, and public policy is not offended by the purchase of these physical assets by an established company.

It therefore seems proper to conclude that only by a sale of the physical assets separate from and not subject to the franchise, can anything substantial be realized for any of the physical property of the company within the streets and public places of the city.

The further question arises: Can the court order a sale of the physical assets separate and apart from the franchise to a purchaser unwilling to acquire the franchise? We think it can. The situation should be treated, to quote the statute, “as justice and equity shall require.” Equity should not permit the city to accomplish a practical forfeiture when there was none in fact and law.

The city points to section 16 of the ordinance by which the title to the company’s physical property in the streets passes to the city upon the termination of the secondary franchise. But it must be noted that thereunder two things are requisite to pass the property at the end of fifty years — (1) that the physical property must be the property of the Newark Telephone Company, and (2) it must then be within the streets or public places of the city of Newark.

It is also to be noted that the ordinance throughout keeps distinct the physical assets and the franchise.

Thus, section 12 expressly contemplates the possible assign-ment by the company of the p’ivileges and franchises to another person or corporation and imposes certain consequences on such transfer, which consequences do not reach the physical property.

Section 13 expressly contemplates that the conduits may be used’by other telephone or telegraph companies thereafter obtaining a franchise from the city “upon such terms and for such compensation as shall be agreed upon by said (Newark telephone) company,” thereby expressly recognizing a partial right of disposition of physical property.

Section 8 is even more significant. Under it no exclusive right is given to the Newark Telephone Company, and it provides that the city may compel the company to remove its own conduits and bear the expense of their removal.

So it might well be, even if the corporate life of the company had continued, that at the end of fifty years there might then have been no property in the streets belonging to the company, or it might well have been that the property placed in the streets by the company might have been in the interim disposed of by that company to some other company, with the necessary consequence that at the end of the fifty years there would have been in the streets no property of the Newark Telephone Company.

There was, therefore, under the ordinance no necessary continuous union of the franchise and of the physical property in the streets.

If the New York Telephone Company is permitted to complete its purchase of the physical assets from the receiver, it may perhaps choose to remove, under proper regulations, such as are in the streets, or to make use of them where they are. If it adopts the latter course it must justify its conduct under some franchise of its own. The city will thus be fully protected against the consequences of the purchase.

In Coler v. Tacoma, Railway and Power Co., 65 N. J. Eq. 347, this court considered the separation of the physical property from the secondary franchises. A corporation had attempted to transfer to another corporation not only its physical property, but its secondary franchises, leaving to itself only the primary franchise of being a corporation. It was held on a bill filed by a stockholder that the arrangement was illegal, because it amounted to a dissolution of the corporation without a compliance with the provisions of our statute in regard to dissolution. Mr. Justice DixOn says (at p. 349), speaking of a clause in the corporation’s certificate of incorporation :

“It authorizes the transfer of property only, while the arrangement in question requires the transfer, not merely of all the property. but also of all the franchises of the company, except the franchise of being a corporation. A corporation which has sold only its property, receiving therefor a valuable consideration, is still able to engage in new enterprises within the scope of its charter; but one which has parted with all its franchises except that of existence is, for all purposes, outside of the winding up of its affairs, defunct.”

The propriety of a sale, under certain circumstances, of phy^ sical assets separate from the franchise is thus recognized, and we think that a sale of the physical assets, apart and free from the secondary franchise, which has been ordered in the present case, is within the power of the court of chancery, and was in all respects proper.

The order under review will be affirmed, with costs.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Kalisch, Black, Heppenheimer, Williams- — 9.

For reversal — Parker, Minturn, White, Taylor — 4.


source: Caselaw Access Project

author: Bergen, J.

license: Public Domain

text:
    West New York Improvement Company et al., complainants-appellants, v. The Town of West New York, defendants-respondents.
    [Argued November 20th, 1917.
    Decided March 4th, 1918.]
    A decree of the chancellor adjudicating the rights of parties is a final adjudication of all matters in issue and- determined, and such a decree cannot be opened in a collateral proceeding, not directed to that end, simply because it stands in the way of a different result in another cause. The earlier decree settles the rights of parties as to the issues involved and decided in the proceedings on which it is based, and to avoid it must be opened by a direct assault, or by an appeal.
    On appeal from a decree of the court Of chancery.

      Mr. Marshall Van Winkle and Mr. Gilbert Collins, for the complainants-appellants.

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

Bergen, J.

In 1859 William W. Niles, being the owner of a tract of land in the township of Union, in the county of Hudson, made and filed a map of the tract showing its division into lots and streets on which was protracted a street called Niles avenue, running east and west from Bergenline avenue, crossing the Bull’s Ferry road, to the Hudson river, which is its easterly end, and where there is a high cliff with, the Hudson river far below, so that the avenue could not be opened to the extent indicated on the map. The present bill was filed to quiet the title to the lands embraced within the lines of Niles avenue, as indicated on the map, lying east of the Bull’s Ferry road (now Park avenue), and the Hudson river. The vice-chancellor advised that the bill be dismissed, and the chancellor so decreed. From this decree the complainant has appealed.

The facts not disputed are that lots were sold on the portion of the street to which this controversy is limited, and to quiet the title to which the bill was filed, by reference to the map as filed, and that such lots are now all owned by the complainant; that previous to 1890 James H. Symes became the owner of all the lands lying east of Park avenue, formerly Bulks Ferry road, and in that year filed his bill in equity to quiet the title to the land in which the township of Union, the municipality which the defendant succeeded, was made a party. This bill of complaint rested upon the ground that various maps had been made of the tract, some, if not all, subsequent to the original map of 1859; that these maps had protracted on them streets not consistent with the original map, and particularly inconsistent with Niles avenue, because of which, it was averred in the bill, the township claimed some interest in the land. The answer admitted the complainant’s possession and claim of ownership but disavowed any information concerning the other averments set out in the bill.

The final decree in that case adjudged, among other things, that the township of Union had no estate or interest in or encumbrance upon the lands except the right to unpaid taxes and assessments levied against them. The lands in which it was adjudged and decreed that the township of Union had no estate or interest in, or encumbrance on, embraced that part of Niles avenue lying east of Park avenue.

The taxes reserved to the township by this decree were subsequently paid. This decree finally adjudged the rights of the parties to that litigation because the township, having been made a party, was bound to set up every claim or interest which it had antagonistic to the prayer of the bill, and if the right to accept the alleged dedication, based upon the map, then existed, not having been accepted for a period of forty years, the township was bound to make that claim at that time, and if it did not, the decree in the litigation to which it was a party finally determined all questions that it should have set up. Chadwick v. Island Beach Co., 43 N. J. Eq. 616; Board of Home Missions v. Davis, 70 N. J. Eq. 577; affirmed, 71 N. J. Eq. 788. Therefore by this decree it was adjudged that the township of Union had no interest in the lands, and removed any cloud from the title of Symes, the predecessor in title of the present complainant, and this decree cannot be assailed or set aside in any collateral proceeding.

Notwithstanding this adjudication the town of West New York, the present defendant, which succeeded to the government and the rights of the township of Union, did, by resolution, on April 2d, 1914, twenty-four years after the adjudication by the court of chancery that it had no estate, interest in or encumbrance upon the lands, and while that decree was in full force and effect, accept Niles avenue by virtue of which it claims an interest in so much of Niles avenue as lies east of Park avenue. The present bill was filed to quiet the title against this claim. In disposing of this bill the vice-chancellor disregarded the former decree, saying that, in his opinion the court was not authorized in 1890 in making that decree because it was based, in part at least, upon the stipulation and agreement of counsel, who, in his opinion, could not make such a stipulation, and that the decree in the court of chancery made in 1890 should be opened.

While the decree of dismissal does not in terms open that decree; it had that effect because, manifestly, the present decree could not have been made if the former decree remained in full force and effect.

We confess a moderate degree of surprise that a vice-chancellor should undertake to set aside the solemn decree of the court of chancery which had not been appealed from, and still remained in full force and effect, simply because he thought it should never have been made. Such a proceeding amounts to the exercise by the vice-chancellor of an appellate power to review all the decrees of the chancellor, however ancient, which do not comport with his view, although the decree may have been partly executed, as in this case by the payment of taxes reserved, to the same defendant in the former decree, the payment of which it had accepted.

The vice-chancellor had no power to open the original decree in the present proceeding. That decree had adjudicated between these parties the very question which is raised in the present proceedings and the complainant was entitled to a decree as prayed for upon the ground of res judicata.

The notion of the vice-chancellor that counsel for the defendant in the original suit had no authority to stipulate the facts, or to consent to the entry of the decree is fallacious. Courts constantly accejot the stipulation of counsel as a basis for their judgments and decrees, and if such consent is made without authority, it is the duty of the party for whom it is made to promptly complain, and not wait for nearly a quarter of a century, after accepting so much of the decree as is favorable, to disavow the authority of counsel.

To get rid of a decree entered by consent of counsel in excess of his authority, the complaining party must act with reasonable promptness. 'The decree dismissing the bill will be reversed, and the record remitted to the court of chancery that it may be dealt with according to the views expressed by this court.

For affirmance — None.

For reversal — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor — 12.


author: Minturn, J.

text:
    Agnes T. Allen, administratrix, petitioner-appellant, v. William M. Allen, respondent-defendant.
    [Argued November term, 1917.
    Decided March term, 1918.]
    An administratrix received from a life insurance company the amount of a policy payable to the executors, administrators or assigns of the insured intestate, under a provision of the policy which enabled the insurer to facilitate payment of the fund by paying the same to any relative of the deceased by blood or marriage, the recipient in this case being the widow. — Held, that the fund so obtained was held in trust for the estate of the deceased intestate, and should be included in the inventory of assets of the estate.
    On appeal from a decree of the prerogative court.

      Mr. Oscar B. Redraw, for the appellant.

      Mr. David O. Watkins, for the respondent.
   The opinion of the court was delivered by

Minturn, J.

The appellant, administratrix of the estate of Edward B. Allen, deceased, applied to the orphans court for an order to sell the real estate of the deceased, to pay his debts, upon the ground of the insufficiency of the personalty applicable for that purpose.

Upon a rule to show cause the respondent, a son and sole heir of deceased, contested the application upon the ground that the ■ administratrix was in possession of $542.87, the amount of the proceeds of a policy of insurance, issued by the Prudential Life Insurance Company upon the life of deceased, for the receipt of which the administratrix liad failed to account.

The administratrix admitted the receipt of the money but insisted that she received it not in her representative capacity, but as widow of the deceased, and that it enured to her in her individual right. If this sum is to he included in the property of the estate there will be no. deficiency of personal assets, and the application to sell the lands must fall, because of the absence of the statutory contingency. Orphans Court act, section 83.

The question was decided adversely to the petitioner by the orphans court, which held that the fund was the property of the estate, and thereby finding no insufficiency of personal assets, discharged the rule to show cause. That result was affirmed by the prerogative court.

The solution of the inquiry necessarily must be based upon the terms of the policy which presents the contract between the deceased and the insurance company. The pertinent provisions of the policy are:

“In consideration of the application for this policy, and of the payment of the weekly premium of thirty-eight cents, on or before every Monday during the continuance of this contract, promises to pay at its home office, in the city of Newark, New Jersey, unto the executors, administrators or assigns of Edward B. Allen, the person herein designated as the insured, unless payment shall be made under the provisions of article second hereinafter contained, the sum of $500.00,” &c.

Article second provides,

“The company may pay the sum of money insured hereby, to any relative by blood, or connection by marriage of the insured, or to any other person, appearing to the compans' to be equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured for his or her burial, or for any other purpose, and the production by the company of a receipt signed by either or any of said persons or of other sufficient proof of such payment to any or either of them, shall be conclusive evidence that such sum shall be paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied.”

The learned vice-ordinary held that the option of payment thus retained by the insurance company, under the language of the policy, and which option was exercised by the company in this instance, operated to discharge the company from any further or other liability upon tbe policy, for the reasons fully discussed in the supreme court in Brooks v. Metropolitan Life Insurance Co., 70 N. J. Law 36, which case was cited by the present chancellor, with approval, in Prudential Insurance Co. v. Godfrey, 75 N. J. Eq. 484), which case was subsequently affirmed, on appeal to this court, in 77 N. J. Eq. 267.

The further result of these adjudications was to declare that the payment thus made by the insurance company in the exercise of its option did not operate ipso fado to confer upon the payee of the fund any legal right of property therein, but con.-, stituted the payee a constructive trustee, who held the fund in trust for tbe benefit of the estate.

The express covenant in the present policy emphasizes that situation, for the language is that the insurer, for the consideration named, “promises to pay * * * unto the executors, administrators or assigns o£ Edward B. Allen, the sum of $500.”

The fact that to this promise is superadded a provision which is intended to enable the insurer for its own convenience to facilitate payment, so as to speedily discharge itself from its obligation on the policy, and incidentally enables it to provide speedy aid to the family of the insured, presumably in a period of distress, does not lessen the legal liability of the recipient of the fund, as constructive trustee for the legal beneficiary under the plain terms of the policy. 2 Mad. Ch. 124, and cases.

The decree of the ordinary will be affirmed, with costs.

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


author: Kalisch, J.

text:
    In the matter of the probate of the last will and testament of Frederick F. Coleman, deceased.
    [Submitted November term, 1917.
    Decided March 4th, 1918.]
    1. Tlie finding of a lunacy commission as to the mental state of the testator is not conclus.ve, but only, prima facie evidence of tlie facts found, and may be overcome by satisfactory evidence.
    2. Under the evidence in this case held that the testator possessed, the mental capacity requisite to make a valid will.
    3. Where a citation was duly served upon a person interested in the probate of a will, and that person signed a consent to the probate which waived any objection thereto, and afterwards made application to be heard in opposition thereto, a ruling that, as that person had made default on the first day of the hearing- and not offered sufficient legal excuse therefor, she would be permitted to participate in the probate proceedings from thence on, but that the testimony before then taken should stand without any right on her part to recall the witnesses for cross-examination, was reasonable and within the proper exercise of sound discretion.
    On appeal from a decree of the ordinary achnitting to probate in the prerogative court the last will and testament of Frederick F. Coleman, deceased, reported in 88 Ecq. £8J/..

      Mr. Thomas Herbert Brown and Mr. C. Russell Rogers, for the appellant.

      Messrs. Wicoff & Lanning and Messrs. Durand, Ivins & Carton, for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The grounds of appeal relied on by counsel for appellant, in the brief, may be summarized thus: 1. That the proponents failed to sustain the burden of proof in establishing that the testator, at the time he made his will, was legally competent to make it, because three weeks before the testator’s death a lunacy commission found the testator to be non.compos mentis and without lucid intervals for seventeen months prior thereto, and that, therefore, the will having been made by the testator at a time embraced within the period of the seventeen months, was invalid. 2. That the ordinary refused to permit the appellant, caveatrix, to cross-examine proponents’ witnesses and thereby violated a fundamental right of the contestant, and deprived her of the right of cross-examination of such witnesses, upon the merits of the case.

The facts are fully set out in the opinion of the ordinary. The learned ordinary very properly held that the finding of the lunacy commission as to the mental state of the testator was not conclusive but only prima facie evidence of the facts found and may be overcome by satisfactory evidence of capacity at the time the will was made.

An examination of the testimony discloses that there was plenary proof that the testator possessed the required mental capacity to make a valid will, at the time he made and executed the will in question.

TYe concur in the finding and reasoning of-the ordinary upon the merits of the case.

As to the refusal of the ordinary to permit the appellant to recall witnesses for the purpose of cross-examination, we think, upon the facts as they appear, there was no abuse of discretion in denying the appellant’s request.

The situation alluded to arose out of the following facts: Upon application of counsel for proponents, the ordinary ordered probate of the will in solemn form, on December 11th, 1916, and citations were issued returnable on January 9th, 19.17, and on which latter date the hearing was begun.

Prior thereto, on December 7th, 1916, one of the counsel for proponent requested a Mr. Messier, a reputable business man of Trenton, to obtain the appellant’s address, so that she could be served with citation, and to offer her $1,000 to waive contest of the will. On December 9th, Messier saw her, and the appellant signed a consent to the probate of the will and waived any objection that she “might or could raise against the same.” The sheriff served the citation upon the appellant. As has been stated, the hearing began on January 9th and witnesses were examined. The appellant did not appear. The case was adjourned to January 16th. but no testimony was taken, and the case was again adjourned to January 23d, when an application was made-on behalf of the appellant, to be heard in opposition to probate, whereupon the ordinary ruled that since the appellant had made-default in appearing on the first day of the hearing, and not having offered a sufficient legal excuse therefor, she would be permitted to participate in the probate proceedings from thence on, but that the testimony already taken shall stand without any right on the part of the appellant to recall the witnesses for cross-examination.

It does not appear that any fraud was practiced on the appellant to prevent her from attending the hearing. From aught that appears she absented herself voluntarily. She was aware of the day set for the hearing and deliberately remained away.

The ordinary very properly held her in default and allowed her entrance into the case upon the terms above stated. It is to he-observed that the terms of the order did not prevent the appellant from calling the witnesses as her own. What the appellant lost through her default was the right to recall the witnesses for cr o ss-examination.

We think, therefore, the terms imposed by the ordinary on the appellant for her laches were reasonable and within the proper exercise of sound discretion.

The decree of the prerogative court admitting the will to-probate is affirmed.

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


text:
    Charles J. Wille, petitioner-appellant, v. Lena Wille, defendant-respondent.
    [Submitted November term, 1917.
    Decided March 4th, 1918.]
    1. The motives which induce a husband to seek divorce from an unfaithful wife cannot properly have any material bearing upon his legal right to a divorce.
    2. A husband is legally justified in using any and all lawful means to procure, testimony so as to enable him to get rid of a wife whom he has reasonable grounds to believe is guilty of infidelity.
    3. While the motive of a husband suing for a divorce might properly be the subject of inquiry, if he offers himself as a witness, for the purpose of testing his credibility, it cannot of itself bar his legal right to n divorce. ,
    4. On examination of the evidence in this case held that the petitioner is entitled to a decree for divorce.
    On appeal from a decree of the court of chancery advised by Y ice-Chancellor Lane.
    Messrs. Kalisch & Kalisch (Samuel Kalisch, Jr., of counsel), for the appellant.

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

Kalisch, J.

The appellant filed a petition for divorce against his wife, the respondent, in the court of chancery, alleging that she did, on the 18th day of May, 1917, commit adultery with a man whose name was unknown to the appellant, at West Orange, in this state.

The wife, in her answer to the petition, denied the alleged adultery.

The learned vice-chancellor, after hearing the cause, dismissed the petition for divorce upon the ground that the petitioner had not borne the burden of proof on him necessary to establish to the satisfaction of the court that the respondent had committed the adultery charged in the petition.

The reasons given by the court below in coming to this conclusion, as gleaned from the opinion, appear to be, first, that there was not only on the husband's part the motive of getting rid of an unfaithful wife, but there was a further motive of getting rid of her so that he might carry out obligations to another woman.

The motives which induce a husband to seek a divorce from an unfaithful wife cannot property have any material bearing upon his legal right to a' divorce, if the adultery charge be proved, either by direct or circumstantial evidence.

A husband is legally justified in using any and 'all lawful means to procure testimony so as to enable him to get rid of a wife whom he has reasonable grounds to believe is guilty of infidelity.

While the motive of a husband suing for a divorce might properly be the subject of inquiry, if he offers himself as a witness, for the 'purpose of testing his credibility, it cannot of itself bar his legal right to a divorce.

The testimony discloses that husband and wife had been living in a state of separation since the 5th day of July, 1915, by practically, mutual consent.

The testimony is plenary that the wife was possessed of an ungovernable temper, used foul and filthy language, and was given, as evidenced by her letters and postal cards to her husband during their separation, to lewd and obscene thoughts. These writings are not only couched in the most filthy terms imaginable, hut express a malignant hatred of the wife toward her husband.

It is also manifest from the testimony that the wife was jealous of her husband, and accused him of undue familiarity with women, especially with Mrs. Newman. The latter was divoreed from her husband and was in the employ of the appellant as bookkeeper in his garage business. She was the sister of the wife of the appellant’s brother, and the latter was in the employ of the appellant, at one time, as a taxi-cab driver. A quarrel disrupted the friendly relations between the brothers, and they became estranged, and this circumstance may readily account why the appellant’s brother and the latter’s wife appeared as witnesses for the respondent,, and for the nature of their testimony.

Eor it was from these two witnesses’ lips that came the statement that the appellant had promised to marry Mrs. Newman upon the former obtaining his divorce.

There is nothing, however, in the testimony of either witness which, fairly considered, tends to prove anything more than a friendship and familiarity which might properly have existed between the appellant and Mrs. Newman, in view of the family-relation of all the parties above referred to.

The finding of the court below that the appellant failed to sustain the burden of proof necessary to establish the wife’s adultery, does not appear to be borne out by the facts and circumstances proved in the cause. The undisputed facts are: The husband had heard, through talk in the neighborhood where his wife lived, that she was in the habit of receiving men visitors in her apartment at night. As a result of this information, the husband applied to a detective agency, in the city of Newark, to have the apartment and the conduct and movements of his wife watched.

• It appears that the detective agency undertook the task and assigned several men for that purpose, but at the request of the appellant, on account of the expense involved, all were withdrawn from prosecuting the work except one Smith. Smith continued to watch the apartment and on two or three occasions he sent for the husband and they both testify they saw a light in the kitchen but in no other part of the apartment, and saw a man coming out of the front door of the house at eleven-thirty at night.

Smith further testified, that during his hours of watch, which were generally on Tuesdays and Fridays, at night, during the months intervening between the middle of January and the 18th day of May following, when the raid was made, ho saw two different men of whom he gives descriptions, enter, on those Tuesdays and Fridays, at nighty and remain about two hours, in the wife’s apartment. Smith further testified that on the evening of the 18th day of Maj, at about eight forty-five lie saw a man enter the house; the lights were lit when he entered and remained so, when the witness boarded a car and went to the appellant’s place of business and informed him of what he had seen, and, thereupon, the appellant asked a Mr. Shearer, who was in the appellant’s employ, to accompany him, and the three' gof into a motor car and were driven to the wife’s residence.

Upon their arrival, Smith went upon the porch to ascertain whether there was anyone in the wife’s apartment. There was no light in the kitchen, but there was one in the dining-room, and Smith stopped to listen and heard voices and the “rumpus of a bottle” as he calls it. He carried this information to the husband, who, thereupon, in company with Shearer, went upon the porch, and the three, the husband leading, behind him was Smith, followed by Shearer, entered the apartment by the rear door, through the kitchen, and proceeded to the dining-room, in which there was a light burning and from which room they could see into the parlor where they saw the appellant’s wife in the act of rising suddenly, in the arms of a man, from a lounge or settee. The three witnesses differ in minor details as to what they saw, which is but natural, since they occupied different positions in the dining-room when the wife was overtaken in the act. When discovered, the man was without coat or hat and his clothing was in disarray, and he said, “Oh, my God” and ran for his hat and coat and left. The wife, going up to her husband, said: “T don’t care if you did catch me, jura didn’t care for me anyhow.” The wife denied that anything improper had taken place between her and her visitor. She admitted, however, that she laid her hands upon her husband, but inferentialty denied that she made the statement attributed to her by her husband and his witnesses. She admitted that her visitor was sitting on the end of the settee or couch before her husband and his party entered, but claims that she was standing in the doorWay between the parlor and dining-room and that this visitor whom she calls Price had been there for more than two hours, She further says that Price told her that he heard an automobile and said, could it be some one looking for you, and when she replied, I don’t know, he pushed up the shade and looked out. Thus, there is the additional statement, coming from the wife, that the shade in the parlor was down. The wife further admits that when her husband and party entered, Price seized his hat •and coat and ran out.

Great stress has been laid upon the circumstances attending the discovery of the wife and her visitor in the situation described by the husband .and his witnesses. It is said that the failure of the husband or detective to detain the wife’s alleged jjaramour and to ascertain who he was, and for the husband tamely to let him go without any exhibition of the natural outbursts of the human passions at what he saw and t]ie resentment that a husband would, in the circumstances, naturally feel, tend to raise the suspicion that the visitor’s presence was due to the husband’s connivance. But suspicion of the existence of the fact of connivance is not sufficient in law to make a finding that there was connivance. There must be credible evidence to support such finding. The court below did not make any such finding and it is difficult to comprehend how from the evidence and ■circumstances such a result could have been properly reached-. In the first place there was no love existing any more between husband and wife. The wife despised and hated her husband, as is evinced by her letters and post cards to him. The husband knew the state of feelings of his wife towards him. Why, therefore, should he make any demonstration over her unfaithfulness to him? If he were playing a part he might have raved and stormed and assaulted her companion or done worse, when he found the pair in the compromising position above related, and it rather tends to strengthen the credibility of the story told by the husband and his witnesses in that no effort was made at any dramatic display of feelings by the husband which he did not in reality possess. It, however, does appear from the respondent’s testimony that the appellant told one of the party to catch the man.

Further, it appeared that one Price, a salesman for Griffith & Go., sold a player-piano to the appellant who made a present of" it to his daughter. This appears to be the only time that the appellant saw Price. By the wife it is claimed that it was Price who was in her apartment on the night that the raid was made, and who she claims came there for the purpose of tuning the piano.

For the respondent it is further claimed that there was no good reason for the appellant to charge in his petition that the wife’s adultery was committed with a person unknown, because of the circumstance of the sale of the piano to the appellant by Price, as above mentioned, and from which it must be inferred that the appellant recognized Price and that the latter was there with the former’s connivance. But this does not necessarily follow. It was an admitted fact that there was no light in the parlor and the man, whoever he was, held his head down and ran out. As all that did occur transpired in the shadow and during moments of excitement, it is not at all unlikely that the appellant did not recognize his wife’s visitor as Price. Besides, it appears that Price, being produced as a witness by the respondent to establish her innocence of the charge of infidelity, not only denied intercourse with her but denied in most emphatic terms that it was he who was found in her apartment on the night of the raid.

There is credible testimony tending to establish that Price was the man who was in the apartment. It is evident, however, from bis denial, that he must have relied upon a belief that he was not recognized by the husband, Smith or Shearer, who, as it incontrovertibly appears, from the evidence, did not enter the parlor but stood in the dining-room where a dim light was burning and where they could be recognized by Price. There is not a scintilla of proof in the cause connecting the appellant with Price’s presence there that night, nor does the proof present any circumstance, reasonabty, warranting an}*" such inference.

We now approach a consideration of the evidence relied upon by the appellant as establishing the charge made against his wife in his petition.

The learned vice-chancellor appears to have discredited the appellant’s testimony, corroborated as it was in all its essential details by Shearer, and by circumstances which were conceded to have existed, and by corroborating avowals made by the wife, in testifying in her own behalf, because Smith, the detective, in stating what he saw when he entered the dining-room, described the alleged guilty pair standing with their arms around each other, after having got up from the lounge or settee, which position the learned vice-chancellor thought was against human nature for a couple to have taken who were discovered in the act of sexual intercourse. How parties would naturally have acted under the circumstances which confronted the alleged guilty pair in the present case can only be a matter of the purest conjecture. Much would depend upon the temperament, social position, moral sense, presence of mind and state of nerves of the parties.

And it must he borne in mind that the position described by the detective was only momentary, for the paramour almost immediately seized his hat and coat and ran from the house.

We have not discussed the testimony of Boyle, because it appears to have little evidential value, if any.

Boyle was called as a witness by the respondent. From the reading of his testimony it is obvious that he treasured up resentment against the appellant. It appears that the latter caused the former’s arrest upon some criminal charge. 1’t also appears that other differences existed between them. Boyle testified that the appellant told him on one occasion that he offered money to one Foster to get the best of his wife. Boyle gives no satisfactory explanation why it was that the appellant told him this. The appellant denied that he ever made any such statement to Boyle. Foster being called as a witness and examined b} the court, denied the truth of Boyle’s statement.

Leaving out of consideration the testimony of the appellant and his witnesses and carefully analyzing the uncontroverted facts and circumstances we have this situation: Letters and postal cards written by the respondent to her husband revealing her lewd and obscene state of mind. The respondent’s story, which is that on the night in question a Mr. Price called at about eight-tliirty o’clock for the purpose of fixing the pedal of her piano; that it took fifteen minutes to do the work; that he asked her permission to take off: his coat, which she gave; that she went into the dining-room and he went into the kitchen and took from a package which he had brought five bottles of beer; that they went into the dining-room and he poured out a glass of beer for her and one for himself, but she refused to drink any; that he coaxed her to drink but she persisted in her refusal; that it was about ten-thirty o’clock when her husband and party appeared and walked into the dining-room; that Price was sitting on the end of the couch, while she was standing by the rocker opposite the piano and that Price had previously said that there was room for two where he was sitting; that when her husband entered the dining-room she heard him say to one of the party, “Catch that fellow;” that Price got up, picked up his coat and hat and ran out. Besides it appears that the shades in the parlor were down. It is manifest that the respondent took the visit of Price as a matter of course. She did not ask him to explain Iris conduct in bringing beer into her home and*drinking it in her dining-room. She did not upbraid him for what he did or said to her and the story of her own behavior is not that of a virtuous woman. Price, according to the respondent’s own story, was in her apartment two hours. Both were fully more than an hour in the parlor together. According to the respondent’s own belief Price was there for no good purpose. Yet she harbored him.

There'was ample evidence of inclination, time, opportunity and place. Her explanation of Price’s presence and conduct and her own behavior refutes any reasonable hypothesis of innocence. Another fact should be adverted to.which appears to he a strong link in the chain of circumstances pointing to the respondent’s guilt. Price was called in her behalf as a witness. He denied that he was in her apartment on the night in question. If his presence there was free from guilt, there is no good reason why he should have denied it. The testimony tends to establish that he is the man who was there'. The fact that Price, hurriedly, seized his hat and coat and made his escape, is a circumstance in itself which speaks loudly of guilt.

The decree of the court of chancery dismissing the petitioner’s petition is reversed, and the record remitted, with directions to enter a decree for divorce for the petitioner according to the prayer of his petition.

As to the appeal from the decree allowing respondent’s counsel an additional counsel fee of $150, the decree will be affirmed.

For affirmance — Parker, Williams, Taylor — 3.

For reversal — Garrison, Swayze, Trenohard, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Gardner — -10.


author: Black, J.

text:
    In the matter of the last will and testament of Louisa M. Wadskier.
    [Argued November 26th, 1917.
    Decided March 4th, 1918.]
    1. A general legacy, from the time it becomes payable, which is one year after the death of the testator, draws interest at the legal rate.
    2. “With accrued interest” in a decree means at the legal rate of interest when no other sum or rate is mentioned.
    On appeal from a decree of the prerogative court.

      Mr. Charles V. D. Joline and Mr. Lewis Starr, for the appellant.

      Mr. John F. Earned, for the respondent.
   The opinion of the court was delivered by

Black, J.

The sole question to be decided in this case is the rate of interest, that a general legacy draws after the expiration of one-year, from the death of the testatrix, whether legal interest is due or only such interest as the fund has earned. We think this question is not open to discussion in this state. The rule declaring the rate of interest recoverable has been settled by this court.

Interest is recoverable on a general legacy, from the expiration of one year from the testator’s death, unless some other period is fixed by the will for the payment of the legacy, was decided by this court, in the ease of Davison v. Rake, 45 N. J. Eq. 767; so, it was decided by the supreme court, that general legacies shall be due and payable at the expiration of one year from the testator’s death, and shall bear interest from that date. Welsh v. Brown, 43 N. J. Law 37. This is the rule established in this state by a long line of authorities.

While the rate of interest in those cases was not the point under discussion, yet, nowhere, is there any mention that the rate of interest shall be less than the legal rate, inferential^, the legal rate was the rate contemplated, in the case of Welsh v. Brown, supra; the suit was instituted to recover one hundred and seventy five ($175) dollars, one year’s interest at the legal rate, on a legacy of twenty-five hundred ($2,500) dollars.

In the books there are many cases illustrating the principle on which interest is allowed, either by way of damages for the detention of the fund or by way of profit earned. Where interest is given by way of damages, for the detention of a debt, the general rule is that the legal rate is recoverable (Wilson v. Cobb, 31 N. J. Eq. 94); a contract which provides for the payment of interest, lout fixes no rate, the law fixes the rate at the legal rate. Bowne v. Ritler, 23 N. J. Eq. 459. The learned vice-ordinary points out in his opinion filed in this case a long line of authorities, in sister (jurisdictions, holding, that a general legacy from the time it becomes payable, will draw interest, at the legal rate, in the jurisdiction where the estate is administered. Such is the rule to be applied in this state.

The clause of the will of the testatrix, out of which this controversy arose, was before this court in the case of In re Wadskier 86 N. J. Eq. 259. This court affirmed the decree of the orphans court of Camden county; that decree provided that the legacy be paid by the executor “with accrued interest less any collateral inheritance tax assessed or to be assessed.” This decree fixed the amount to be paid by the executor with accrued interest. The clear meaning of these words could not be misunderstood. The rate of interest was clear. It is the legal rate of six percent., for no other rate or sum was fixed or mentioned. We think the rate of interest, i. e., the legal rate of six per cent, on ten thousand ($10,000) dollars, less taxes, was res adjudícala in the prerogative and orphans court below. It was, therefore, improper for those courts to reopen this question and decide it de novo. Those courts should have given effect to the decree of the orphans court of Camden county, affirmed by this court.

The decree of the prerogative court affirming the decree of the orphans court of Camden county will, therefore, be reversed and remanded to that court, to enter a decree in accordance with the views expressed in this opinion.

For affirmance — None.

For reversal — Garrison, Swayze, Trenchard, Parker, Bergen, Kalisch, Black, White, Heppenheimer, Williams, Gardner — 11.


author: Per Curiam.

text:
    Agnes Larky, appellant, v. Benjamin Larky, respondent.
    [Submitted December 15th, 1917.
    Decided March 4th, 1918.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Lane.

      Messrs. Kalisch & Kalisch, for the appellant.

      Mr. Charles M. Myers, for the respondent.
   Per Curiam.

The order brought up by this appeal was made by the chancellor. The merits of the order are not attacked either by the argument of the appellant or by her petition of appeal which are exclusively directed to the contention that, under the rules of the court of chancery, the petition on which the order is based should have been heard, not by a vice-chancellor but by the advisory master who decided the main cause. This is a matter with which this court will not concern itself. The making, enforcement and suspension of the rules of the court of chancery are the exclusive province of the chancellor both by inherent power and by express legislative authority. Chancery act, section 87. Comp. Stat. p. 444.

Matters, therefore, resting wholly upon the rules of the court of chancery and under the control of the chancellor are not subject to review by this court.

The question whether an order made by the chancellor should have been on the advice of one officer of his court rather than of another not being a ground upon which the order of the chancellor can be reversed, it is in consequence affirmed.

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


text:
    James Fountain et al., executors, &c., complainants-respondents, v. Gussie C. Carlton et al., petitioners-appellants.
    [Decided February 14th, 1918.]
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Baches, who delivered the following oral opinion: '
    “The present controversy is due to the embezzlement of one Kehoe, a former solicitor of this court, to whom both parties to this litigation entrusted their affairs. Kehoe’s peculations from his clients were numerous. I know this from other cases that' have been before me or are now before other vice-chancellors. This ease bears some resemblance to the one that was before me three weeks ago, in which the present petitioner Bullis figured.
    “In this case the complainants foreclosed their mortgage and entered a decree for $843. Kehoe was their solicitor. Four hundred dollars of the decree was paid by the former owner, and an alias fi. fa. issued to make the balance. After the decree was entered, the owner of the equity of redemption sold the mortgaged premises to Mr. Bullis. Bullis was to have a clear title and he hired Kehoe to look after his interest. The property was heavily encumbered and after paying the vendor the difference between the purchase, price and the amount of liens, Bullis entrusted Kehoe with $5,000 to pay off the liens. Kehoe failed to pay (the complainants, and the question is: Ts Bullis or are the complainants to lose this amount-of the theft? Was it Bullis’ money or the complainants’ that Kehoe stole?’ It seems to me that it must be held that the thief stole the money when and as it was given to him — that is, Bullis’ money. I cannot suppose, and there is nothing in the case to indicate, that ICehoe first applied the sum to the complainants’ debt and then stole it.
    “The rule to show cause allowed to Bullis why the fi. fa. should not be stayed and the decree canceled wlill be dismissed, with costs.”

      Messrs. Beekman & Spencer, for the petitioners-appellants.

      Mr. Jacob L. Klein, for the complainants-respondents.
   Per Curiam.

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

For affirmance — Garrison, Trenchard, Parker, Minturn, Black, White, Gardner — -7.

For reversal — Swayze, Bergen, Kalisch, Heppenheimer, Taylor — 5.


text:
    Marie A. Eugster, petitioner-respondent, v. Benedict Eugster, defendant-appellant.
    [Decided January 31st, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 73.

      Mr. Isidor H. Brand, for the respondent.

      Messrs. Queen & Stout, for the appellant.
   Per Curiam.

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

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


text:
    Mary Agnes Heyer, complainant-respondent, v. Michael A. Sullivan, defendant-appellant.
    [Decided March 14th, 1918.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Baches, whose opinion is reported ante p. 165.

      Mr. Theodore Rurode, for the appellant.

      Mr. Thomas J. Brogan, for the respondent.
   Per Curiam.

We agree with the vice-chancellor that the gift was not established. We express no opinion on the other points discussed by him. Let the decree be affirmed, with costs.

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Gardner — 12.

For reversal — None.


text:
    Edna G. Irwin, petitioner-respondent, v. James W. Irwin, defendant-appellant.
    [Decided January 31st, 1918.]
    On appeal from a decree of the court of chancery advised bjr Vice-Chancellor Lewis, whose opinion is reported ante ¶. 189.

      Messrs. Mackay & Mackay, for the respondent.

      Messrs. Colby, Whiting & Moore, for the appellant.
   Per Curiam.

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

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams — 11.

For reversal — None.


text:
    Robert C. Lockward, complainant-respondent, v. Isaac L. Evans et al., defendants-appellants.
    [Decided January 31st, 1918.]
    .On appeal from a decree of the court of'chancery advised by Vice-Chancellor E'oster, whose opinion is reported ante p. 530.

      Messrs. Raymond, Mountain, Van Blarcom & Marsh, for the respondent.

      Messrs. Church & Harrison and Mr. J. Henry Harrison, for the appellants.
   Per Curiam.

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

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


text:
    Edna S. Wilson et al., complainants-appellants, v. George L. Vogel, defendant-respondent.
    [Decided March 4th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lane, whose opinion is reported in 87 N. J. Fq. S8J/..

      Messrs. Riker & Riker, for the appellants.

      Mr. Arthur R. Denman, 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 Lane.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker; Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor — 13.

For reversal — None.


text:
    Hugh A. Smith, petitioner-appellant, v. Charlotte M. Loveland Smith, defendant-respondent.
    [Decided January 31st, 1918.]
    On appeal front a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in '98 All. Rep. SJfi-

      Mr. John H. Kafes, for the appellant.

      Mr. Alexander Trapp, for the respondent.
   Per Curiam.

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

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


text:
    Eva P. Cropsey, complainant-appellant, v. Charles D. Cropsey, defendant-respondent.
    [Decided March 4th, 1918.]
    On appeal from a decree of the court of chancery advised by 'Vice-Chancellor Backes, whose opinion is reported ante'p. J/91.

      Messrs. Ziegener & Lane, for the appellant.

      Mr. Robert Carey, for the respondent.
   Per Curiam.

The decree apj>ealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes.

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

For reversal — None.


text:
    William S. Ketcham, Jr., complainant-respondent, v. George W. Ketcham, administrator, &c., defendant-appellant.
    [Decided January 31st, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 8k N. J. Eq. 577.

      Mr. William S. Ketcham, Jr., pro se, for the respondent.

      Mr. Frank E. Bradner, 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 Vice-Chancellor Emery.

For affirmance — Garrison, Swayze, Trenchakd, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Gardner — 12.

For reversal — None.


text:
    Manuel Davila, appellant, v. United Fruit Company, respondent.
    [Decided January 31st, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    This is a motion to dismiss the hill of complaint filed in this canse to compel the specific performance of a contract alleged to have been entered into by the defendant for the purchase of lands in the Republic of Columbia, and in addition to have the defendant submit to arbitration the question of the value of some of the lands referred to in the contract, or in the alternative to have the court ascertain, by such proof and means as si i all seem equitable, the reasonable and fair value of such lands.
    The contract set out in the bill consists of two papers, one referred to as the option, dated November 3d, 1911, and the other a telegram dated October 24th, 1912, claimed to be an acceptance of the option, signed by one Montejo, the agent of the defendant.
    The portion of the option involved in this action reads as follows:

      “The said Davila further agrees to give the United Fruit Company an option to purchase at any time within one year all the remaining lands in the Santísima Trinidad de Aracataoa and Da Concepcion and other lands adjacent and owned or controlled by the said Davila. The price to be paid for uncultivated lands shall be $20 gold per hectare: the price to be paid for cultivated lands shall be the fair value agreed by the parties or fixed by three arbitrators, one chosen by each party and one by the two so chosen.”
    The telegram of acceptance as set out in the bilL of complaint reads as follows:

      “October 24th, 1912.

      “Santa Marta,

      Manuel Darnlla,

      Bogota.

    “Exercising the option given by you to thg company in, agreement of November 3d of last year, company formally notifies you that it purchases your remaining lands in the Santísima Trinidad tract bounded on the north by the river Sevilla, on the east by the Valle Durpar highway, on the south by the river Aracataca, on the west to the swamp or inundated lands (Anegadizos) of the Ciénega Granda. Appoint attorney to execute deed.
    “Your affectionate friend,
    “Montejo.”
    Tlie bill alleges that the total area of the lands agreed to be sold was twenty-five thousand five hunderd and eighty hectares and five thousand square meters; that of this total area twenty-four thousand and eighty hectares and five thousand square meters is uncultivated land and one thousand five hundred hectares is cultivated land, or stated in terms with which we are more familiar, the entire tract contained approximately sixty-four thousand acres, of which three thousand seven hundred and forty acres were cultivated.
    The bill further alleges that complainant has at all times been ready, willing and able to execute a deed for the lands in accordance with the terms of the contract; and that he has repeatedly requested defendant to appoint a time- and place for the performance of the contract and that this defendant has failed and neglected so to do.
    A number of reasons have been assigned in support of the motion to dismiss, but in view of the conclusion which I have reached, it will not be necessary to refer to more than one of them, viz.:
    The bill cannot be maintained because it seeks a decree for the enforcement of an agreement to arbitrate, or in the alternative to fix the price which the defendant is to pay for the lands claimed to be covered by the alleged contract.
    This objection states substantially what was held by the chief - justice in delivering the opinion of the court in the case of the Qity of Providence v. St. Johnis Lodge, Z B. I. Jk-6, and quoted with approval by Chancellor Green in our leading case of
      McKibbin v. Brown, 14 N. J. Eq. 13; affirmed, 15 N. J. Eq. 498, when he said:
    “It is -undoubtedly true that a court of equity will not enforce a contract of sale where the price is to be fixed by the parties, or by arbitrators to be chosen by the parties,, and for the plain reason, that the contract sought to be enforced is incomplete in an essential particular, and the court have no power to substitute themselves or a master to fix the price in the place of the parties or of arbitrators to be chosen by the parties. This would be not to enforce an existing contract of the parties, but to make one for them.” •
    By the terms of the option before us, the price to be paid for the cultivated land is “the fair value agreed upon by the parties or fixed by three arbitrators, one chosen by each party and one by the two so chosen.” And it appears that the contract is in .this respect, at least, incomplete and uncertain, because the price to be paid for the cultivated land was still a matter for negotiation, at the time the telegram bf acceptance of the option was received by complainant.
    In the course of his opinion in McKibbin v. Brown, supra, Chancellor Green stated the doctrine which has been uniformly -followed in the cases in our state, when he said:
    “No specific performance of a contract can be decreed in equity unless the contract be actually concluded and be certain in all its parts. If the matter still rest in treaty, or if the agreement in any material particular be uncertain or undefined, equity will not interfere. Fry Spec. Perf. §§ 164, 203.

    “ T lay it down as a general proposition/ said Lord Rosslyn, To which I know no limitation, that all agreements, in order to be executed in this court, must be certain and defined.’ Lord Walpole v. Lord Orford, 3 Ves. 420.

      . “The same doctrine is uniformly recognized in all the cases, English and American.”
    .In the later case of Woodruff v. Woodruff, 44 N. J. Eq. 349, where the contract provided that complainant might purchase ■ back his interest in the farm at a valuation to be made by two disinterested parties, one to be selected by the complainant and the other by the representative of Patrick Woodruff, and Patrick’s representative refused to name a valuer, Chancellor McGill quoted, with approval, from Fry Spec. Perf. § 168, that:
    “If the contract be between A and B to sell and buy at such a price as valuers, to be named by them, shall fix, it seems that either A or B may refuse to name a valuer, and the contract will remain incapable of completion, without any liability on the part of the refusing party.”
    In the case of Domestic Telegraph Co. v. Metropolitan Telephone Co., 39 N. J. Eq. 160, the contract sought to be enforced provided that on the expiration of the first license, and in a certain contingency, the complainant should have the first right of acquiring a license, and the relief sought was to compel the defendant to specifically perform this contract by granting to complainant a new license “upon such terms as may be determined by the court.” Vice-Chancellor VanFleet, citing Mcliibbvm v. Brown, supraj Potts v. Whitehead, 20 N. J. Eq. 55, and Waterm. Spec. Perf. §§ HI, 182, held — that courts of equity may compel the specific performance of a contract which the parties have agreed upon and which is sufficiently certain and definite in its terms to enable the court to see what they meant, but that it was entirely beyond the power of any judicial tribunal to make a contract for litigants, or compel them to make a contract with each other.
    Until the contract has been concluded between the parties and its terms definitely ascertained, and while negotiations are pending over matters relating to the contract, and which the parties regard as material to it, although as to some matters they may be agreed, specific performance will not be decreed. Brown v. Brown, 33 N. J. Eq. 650.

    In affirming the opinion of Vice-Chancellor VanFleet on appeal (kO N. J. Eq. 287), no opinion of the majority of the court is reported, but Mr. Justice Magie, in his dissenting opinion (at p. 80S), said:
    “Where contracts have left terms to be fixed by arbitration, and one of the contracting parties has refused to enter into the arbitration according to the contract, courts of equity have declined to compel the refusing party to enter into the arbitration he has contracted for. This refusal, I apprehend, is grounded on the general rule that courts of equity will not specifically enforce an agreement to submit any matter of difference between parties to such a tribunal.”
    In the early case of Copper v. Wells, 1 N. J. Eq. 10, Chancellor Vroom said:
    “The principle is well settled that the court has no power to compel a party to appoint an arbitrator and of course that a specific performance cannot be decreed.”
    And to the same effect is Van. Doren v. Robinson ei al., 16 N. J. Eq. 256.

    ' Counsel for complainant, while recognizing generally the rule followed in the foregoing cases, contends, however, that the stipulation in this contract to the effect that the price to be paid for the cultivated land is to be fixed by the parties or by arbitrators named by them is but subsidiary and unimportant, and not an essential or material part of the contract, and therefore brings the case within the excejotion to the rule, explained in Pry Spec. Pcrf. (5th eel.) 179 § &6J/., viz.: That equity exercises jurisdiction in such cases on the view that such contracts are
    “substantially for the sale of the property at a fair price, the mode of ascertainment, though indicated 'by the contract being subsidiary and nonessential, and where consequently if that mode of .ascertainment has failed the court will have recourse to some other means' of coming at the fair price and of thus carrying into effect the contract in its essential parts.”
    The argument advanced to bring this case within the exception is that the cultivated lands on which the price is to be fixed represent only six per cent, of the total area to be conveyed; that these lands being under cultivation, bearing growing crops, which must fluctuate in value from season to season, it is there-, fore obvious that neither the parties nor arbitrators could determine the fair value of this improved parcel until defendant had exercised its option to purchase and fixed a time at which title should pass.
    The difficulty with the proposition thus advanced is that it, in effect, claims that the contract is not to be regarded as an entirety, and that the part relating to the cultivated lands may be severed from the rest of it. I am unable to adopt this view and I am also unable to reach the conclusion that the provision of the contract relating to the mode of ascertaining the value of the cultivated lands is a non-essential and not a material part' of the contract. While it is true such lands represent only six per cent of the tract to be purchased,they amount, however, to one thousand five hundred hectares according to the hill, and in the bill it is alleged that this cultivated land is worth $100 per hectare, which, at complainant’s own valuation, would make these lands worth $150,000 — -an amount which I am unable to say is unimportant or insignificant. At the valuation fixed by complainant for the cultivated and uncultivated lands the total cost of the property would be something over $600,000, and I am not convinced that one-quarter of this sum is so immaterial and unimportant that the court should ignore the mode agreed upon by the parties for its ascertainment, and should compel the defendant to pay the whole or such, part thereof as the court should determine was fair and reasonable. This would not be enforcing the contract of the parties; it would be making a contract for them.
    The law controlling the situation before me is too well settled to leave room for any doubt.
    I consider the value of the cultivated lands to be a very material part of this agreement, and I also regard the method of ascertaining this value, which the parties have agreed upon, as an essential part of the contract; apparently by this contest the parties themselves so regard it, and as neither fraud nor part performance has to be considered, there is nothing in. the case to justify me in taking it out of the general rule denying specific performance of an incomplete contract.
    A decree will be advised that the bill be dismissed.

      Mr. August C. Streitwolf, for the appellant.

      Messrs. McCarter A English, 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 Foster.

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams — 11.

For reversal — None.


text:
    Jessie Louise Bowers, respondent, v. John C. Bowers, appellant.
    [Decided January 31st, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    This is an action for divorce on the ground of adultery. While there was no direct proof of the commission of the offence, the testimony satisfied me that the defendant and co-respondent had both the inclination and the opportunity to commit the act, and on the conclusion of the hearing I announced that I was satisfied of their guilt and would advice a decree for the petitioner.
    The parties were married on March 17th, 1892, and for six years prior to the filing of the petition they had resided in Metuehen, Middlesex county, where defendant conducted a garage business.
    Petitioner is about fifty-three years old and the defendant is about four years younger. The co-respondent Mrs. Waite has been an acquaintance of theirs for some years, and in June, 1915, she moved to 162 Chadwick avenue, Newark. Petitioner first noticed.an intimacy between her husband and Mrs. .Waite in October, 1913. In July, 1911, she told her husband, who liad been staying out at night until two, three or four o’clock in the morning, that ho would have to give her up or give up Mrs. Waite, to which he made no reply. That same -night she spoke to Mrs. Waite, telling her she had broken up her home, to which Mrs. AYaite replied, “Oh, yes, I believe Leonard (her son) had something to say about that this afternoon, and added, “You go down the block and go home and mind your own business.” After this defendant neglected petitioner, left her alone night after night, even when she was ill, and never took her riding in his automobile, and they did not speak to each other except when absolutely necessary, and he showed no affection for her, and although he paid the household bills he refused to give her any money; his excuse is that if he gave her money she would spend it in employing detectives to get evidence against him. ■
    A few days after petitioner had spoken to defendant and Mrs. Waite about their relations, she again spoke to her husband on the subject and he told her, “You can have anything you like or you ask for, but T will go with any woman I damn please.”
    Since March, 1914, petitioner and defendant have not cohabitated and have occupied separate rooms. And while Mrs. Waite lived in Metuchen defendant occasionally took meals at her home, and after her removal to Newark he was a very frequent visitor to her home, calling there three or four times a week, apparently driving from Metuchen to Newark in his car; he usually arrived late at night and left very early in the morning, leaving usually from one to four a. m. During this time people living across the street saw him hugging and kissing Mrs. Waite while she was dressed only in her nightgown, or in nightgown and some wrap over it. Petitioner herself saw some of this conduct while boarding opposite Mrs. Waite’s for a. few days in November, 1915. On December 7th, 1915, petitioner closed her home in Metuchen and moved to 161 Chadwick avenue, opposite Mrs. AVaite’s, where she obtained board with a Mrs. Ivratzig, for the purpose of obtaining what evidence she could of her husband’s visits to Mrs. AYaite’s, and she remained there about three months, and saw her husband leaving the AAaite house nearly every morning and arriving there nearly every evening. She and others saw defendant and Mrs. AYaito out riding in the automobile at late hours of the night or in the early hours of the morning; they saw the affectionate greetings exchanged between them when he left in the morning; Mrs. Waite was seen to put her arms around him and kiss him while they were sitting in the front room of her home, and Mrs. Waite taunted and laughed at Mrs. Bowers when she met her on the street. Defendant admits calling at Mrs. Waite’s frequently after her removal to Newark, at late hours of the night and leaving at early hours in the morning; he states that the calls were made because lie and Mrs. Waite’s twenty-year-old son were working together on an engineering course in some correspondence school; and when petitioner closed their home, he began to board with Mrs. Waite and is still boarding with her, because he claims there is not a suitable place in Metuchen where lie carnes on business, in which he could board; but the testimony shows that this is not true. Defendant and Mrs. Waite deny that any illicit relations exist between them; they claim Mrs. Bowers is unreasonably jealous and is of a nagging disposition. Slio impressed me as a very mild, respectable woman, saddened by the trouble that had come upon her and by the breaking up of her home; and her appearance and conduct upon the witness stand and the manner in which she gave her evidence, were in marked contrast to the brazen, cynical and indifferent conduct and manner of the defendant and Mrs. Waite; in fact, the defendant seemed to realize the unpleasant position in which he was placed much more than Mrs: Waite did, who treated the offence with which she was charged in the lightest possible manner. A sample of her denial is shown by the following extract from ber testimony, when being examined by counsel for defendant: “Did he ever kiss 3ou? A. No, sir; when that happens, I want to he alone, not with an audience.” Again, on cross-examination, she stated defendant informed her that she had been named as co-respondent in this case when he asked for board, and then,
    “Q. Notwithstanding' that he acquainted you with the fact that you were openly charged as the co-respondent in this case, you nevertheless permitted the doors of your home to be opened to him?
    “A. Surely.

      “Q. The mere fact that you were charged as a co-respondent in this case of record, you opened the doors of your home and said there is nothing there from which the public can gather anything?
    “A. No.
    “Q. Is that the only answer you can. give me?
    “A. Yes.”
    I cannot believe an innocent woman would act or testify as Mrs. Waite lias done in this case. The excuse offered by the defendant for boarding with her, even while this case has been pending and the hearing held, is so flimsy that it cannot be believed. I am convinced defendant and Mrs. Waite committed the offence charged and that petitioner has shown herself entitled to a decree.

      Mr. August G. Streitwolf, for the respondent.

      Mr. Russell Watson, 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 Vice-Chancellor Foster.

For affirmance — Garrison, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


author: Pee Curiam.

text:
    William H. Warren, appellant, v. Cora B. Warren, respondent.
    [Decided January 31st, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, who filed the following opinion:
    In the above-stated cause my conclusion is that the complainant has failed to establish his case, and that the bill must therefore be dismissed.
    The equitable principles applicable to the situation presented by the pleadings and proofs are well settled — so well settled that there was no dispute in regard to them in the argument of counsel.
    As to the facts, I think T may say that the evidence not only failed to rebut the presumption of a settlement or gift, but convinced my mind that there was a gift — that this was the common case where a man buys land and has it conveyed to his wife with the natural expectation that the settlement will be advantageous to both parties. When the relations of the man and his wife cease to be harmonious, when divorce or separation comes, the man finds himself disappointed in his expectations, and he very much regrets the disposition of property which he theretofore made. No doubt there axe situations of this kind where there is hardship, and some future laws may provide for the readjustment of family settlements in case of divorce. Under our present system of laws the destruction of harmonious and confidential relations between the man and wife, their complete estrangement, and even divorce, create no new equity in favor of the husband with respect to land which he originalN donated to his wife when both parties contemplated that their affectionate and confidential relations would endure throughout their lives, and that botli would therefore share in the benefits of the donated property.
    I am disposing of this case without considering the origin of the money which paid for the land, or some other questions of fact. I am assuming for the purposes of this decision that the full price of the land came from money which belonged to the husband alone, together with the rents which the land yielded through a course of years. •

      Messrs. Ziegener & Lane, for the appellant.

      Messrs. Lum, Tamblyn & Colyer, for the respondent.
   Pee Curiam.

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

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — None.


author: Walker, Chancellor.

text:
    Jeffrey J. Rogers, petitioner, v. Julia Rogers.
    [Decided May 29th, 1918.]
    3. The corroboration of petitioner's testimony required by the law of this state, in order that a decree of divorce may he granted, need not be the testimony of witnesses, although, when such testimony can he procured, it should be introduced. The required corroboration may be furnished by surrounding circumstances adequately established.
    2. A misleading statement in the third syllabus in Foote v. Foote, 71 N. J. Eq. 373, pointed out.

      This matter was referred to Alonzo Church, Esquire, advisory-master, wlio filed the following conclusions:
    “On final hearing on petition for divorce and proofs ex parte.

    “This is a petition for divorce on the ground of adultery. The testimony of the petitioner is corroborated by the confession of the defendant, and by admissions made by her to a friend who testified to them before the special master. Were this all the evidence I should be forced to the conclusion that the case was one coming under the rule laid down in Garrett v. Garrett, 86 N. J. Eq. 293, where the chancellor held that testimony of the petitioner, corroborated only by the admissions or confession of the defendant, will not, without more, support a decree. There is another principle, however, of the law of evidence in divorce cases, which is sometimes overlooked, but which is highly important in the determination of these causes.
    “The chancellor, in Garrett v. Garrett, supra, held that a decree cannot be granted upon the uncorroborated testimony of the petitioner, nor upon the uncorroborated confession of the defendant, nor upon one plus the other. He adds, however, that both are admissible in evidence, but must be corroborated to amount to legal evidence. This brings us to a consideration of what is corroboration. It need not necessarily be the testimony of witnesses, although when such testimony can be procured, it is important that it be introduced. Corroboration may arise out of facts and circumstances.
    “In Orens v. Orens, 88 N. J. Eq. 29, it was held inter alia:

    “ ‘The corroboration of a petitioner’s testimony, required by law, in order that a divorce may be decreed, need not be the testimony given by another or other witnesses to all of the same identical facts to the minutest particulars, but only their giving such facts in evidence as already testified to by petitioner, or such circumstances tending to establish them, as renders petitioner’s testimony so much more probable as to be legally acceptable, and which serves to empower the judge to accept the truth of the petitioner’s whole story.’

      “The case of Foote v. Foote (Court of Errors and Appeals), 71 N. J. Eq. 273, is cited in the (hens Case as authority for the above proposition, as is also Williams v. Williams, 78 N. J. Eq. 13.
    “In the Foote Case (at p. 280) the court says: Tf the circumstances of the case as shown by the expressions and conduct of the defendant, together with the letters of the parties, all corroborate the testimony of the complainant, the case is complete/ This case, of course, was decided upon its own particular facts, as, indeed, every case should be, and it might be thought, in the absence of corroboration by witnesses, that both conduct of the defendant and letters of the parties, or at least of the defendant, must necessarily be shown to afford corroboration. I do not so take it. In the case of Robinson v. Robinson, 83 N. J. Eq. 150, Vice-Chancellor Learning held that corroboration of the testimony of a petitioner need not be by other witnesses but may be furnished by surrounding circumstances, and remarked (at p. 152) that surrounding circumstances adequately established may be of a nature to fully supply the office of corroboration which the law requires in matrimonial .cases. In other words, letters and conduct, or either, if established with sufficient clearness, form, as it were, the general atmosphere of the case, which, taken as a whole, will establish a proper basis for a decree, even though there are no corroborating witnesses to the acts alleged by the petitioner.
    “Applying the above principles to the case under discussion we find, in addition to the evidence mentioned above, that there are in evidence letters, post cards and pictures which were found in the defendant’s valise. They were sent to her by several different men, some of whom are named as corespondents. When confronted with these, the defendant confessed, and they are evidence corroborating the confession. The petitioner’s mother testifies that the defendant received a large amount of mail, which she refused to read except in private. When the husband desired to read a letter, directed to her as 'Miss,’ defendant snatched' it out of his hand and ran upstairs with it; and these facts are corroborating circumstances.

      “Upon considering the whole case, therefore, I conclude that there is sufficient corroboration of the petitioner’s testimony from the defendant’s confession, corroborated by the above circumstances, to justify a decree for the petitioner which I shall accordingly advise.”

      Mr. Carl Weitz, for the petitioner.
   Walker, Chancellor.

A decree of divorce nisi will be made in conformity with the advice contained in the conclusions of Advisory Master Church, which are hereby adopted as the opinion of the court.

As the case of Foote v. Foote, supra, is cited in the opinion of the learned master, I desire to call attention to a misleading-statement in syllabus 3. It is found in this expression: “Under a statute requiring corroborative evidence * * * to obtain a divorce,” &c. There is no statement in the body of the opinion that corroboration of the petitioner’s testimony in divorce cases is required by statute; and properly so, as there is no statutory requirement in that regard. It is part of the substantive law o E divorce evolved by the court as a matter of sound public policy, and resides in numerous decisions.

I have examined the original opinion on file in the secretary of state’s office and find that Judge Yroom, who wrote the deliverance for the court of errors and appeals, did not preface it with any head-note whatever. The syllabus in the official report is copied from the report of the same case in 65 Atl. Rep. 205. The error, therefore, appears to have originated with the editor of the Atlantic Reporter, and to have been copied by the official equity reporter. The one with whom the mistake originated was doubtless misled by an assertion in the opinion — 71 N. J. Eq. (at p. 280) — where it is stated that it was insisted that the corroborative testimony offered did not extend to all the essential elements of the offence “defined by our statute.” It is the elements of matrimonial offences that arc defined by our statute, and there is, as stated, no statutory requirement that there shall he corroborative testimony. That there must be corroboration, however, is established by a long line of cases.