author: Walker, Y. C.

text:
    Margaret Suydam v. Marcus L. W. Suydam.
    [Decided August 25th, 1911.]
    1. If a husband be guilty of conduct amounting to a matrimonial offence that would constitute ground for divorce or alimony, his wife is justified .in leaving him, and the desertion thereby becomes his.
    2. If a wife leaves her husband because of his adultery, even if it be committed elsewhere than at their dwelling, the separation thus created is constructive desertion by him for the purpose of enabling her to compel him to support her; that is, it amounts to tho abandonment or separation (whatever the difference) by him from her without justifiable cause, within the meaning of section 20 of the Divorce act.
    3. In divorce cases the wife is a privileged suitor, and, as a general rule, is entitled to alimony and counsel fee pendente lite whether she be complainant or defendant. If, however, she has sufficient property of her own, no allowance will be made.
    4. There is some distinction, however, accordingly as the wife complains or is complained against. When she is complainant and no sufficient case is made by her bill and affidavits, alimony and counsel fee pendente lite will be denied; but, when she is defendant, she is entitled to preliminary allowances, if she denies under oath the matrimonial offence charged against her, and is without means for her support and for defending her husband’s suit. Even when she is defendant, it may be that she is disentitled if her denial is not made in good faith; but, as to this, quaere.

    5. The rule is different in case for alimony disassociated from divorce a vinculo matrimonii. On motion for preliminary relief in maintenance suits, the court looks into the merits of the application as disclosed by the pleadings and affidavits, and is thereby guided in the exercise of its discretion. And, when the tona fides of a wife’s application is questionable, such relief will be denied.
    G. As well in eases for divorce a mensa et thora as in those for alimony pure and simple, where the wife has in fact left the husband on account of his alleged derelict conduct, her application for alimony and counsel fee pendente lite will be scrutinized and decided upon the weight of the testimony then presented, and the rules of law applicable thereto, just as other litigated motions are decided, even though she be a favored suitor.

      7. Because a husband denies under oath the charges against him, it does not necessarily follow that alimony pendente lite will be refused. Nevertheless, where his sworn denial is abundantly corroborated, and the case made by the pleadings and affidavits on the preliminary motion is with him by the application of the usual rule concerning the burden of proof, the defendant should not be visited with any interlocutory order for allowances, where it appears that the wife has left him either because of his alleged extreme cruelty or adultery; because a wife who leaves her husband does so at her peril, and assumes the burden of making the desertion constructively his by establishing his guilt by clear and satisfactory proof, and this is so on application for temporary alimony and counsel fee as well as on final hearing.
    On bill, &c. On petition for alimony pendente Hie.

      Mr. William N. Qooper, for the petitioner.

      Mr. Scott Scammell, for the defendant.
   Walker, Y. C.

The bill in this case was filed for alimony under the Divorce act. P. L. 1907 p. 474 § 26. It does not allege that the defendant without any justifiable cause abandoned his wife, the petitioner, or separated himself from her, but alleges that by reason of the committing of an act of adultery by him, she was compelled to leave him, which she did June 7th, 1911, and since that time he has refused and neglected to maintain and provide for hei. The adultery is said to have been committed at a place away from the matrimonial domicile.

If a husband be guilty of conduct which will justify his wife in leaving him, which must be conduct amounting to a matrimonial offence that would constitute ground for divorce or alimony, she is justified in abandoning him, and the desertion thereby becomes his. Moores v. Moores, 16 N. J. Eq. (1 C. E. Gr.) 275, 280; Weigand v. Weigand, 41 N. J. Eq. (14 Stew.) 202, 209; Dummer v. Dummer, 41 Atl. Rep. 149.

It is true that it has been held that a wife cannot maintain a suit for divorce against her husband as for a desertion by him when she has left him because of his adultery committed elsewhere than in their own abode. Stiles v. Stiles, 52 N. J. Eq. (7 Dick.) 446; Lake v. Lake, 65 N. J. Eq. (20 Dick.) 544. Vice-Chancellor Reed, in Lake v. Lake, said that an adulterous act committed by a husband at a place other than the dwelling of the parties might justify a wife in separating from her husband, while Vice-Chancellor Pitney, in Stiles v. Stiles, said that the petitioner was entirely justified in leaving her husband because of such an adultery. These cases (Stiles v. Stiles and Lake v. Lake) only establish the doctrine that a wife may not sue for and obtain a divorce for her husband’s desertion, when forsooth she has left him because he is guilty of the matrimonial offence of adultery committed away from their dwelling. Proof of adultery is not proof of statutory desertion. Tracey v. Tracey, 43 Atl. Rep. 713.

The rule is that if a wife discovers her husband’s adultery she must separate herself from him if she would sue for divorce, unless there are imperative reasons for her to continue to cohabit with him. Stevens v. Stevens, 14 N. J. Eq. (1 McCart.) 374; Marsh v. Marsh, Ibid. 315; Chapman v. Chapman, 25 N. J. Eq. (10 C. E. Gr.) 394. And during such separation his liability to support her continues. See Streitwolf v. Streitwolf, 58 N. J. Eq. (13 Dick.) 570, 574.

Under our statute desertion is justified when the deserting party has been so offended against as to authorize at his or her instance a decree for divorce or judicial separation, but only when the guilt of the offending party is shown by clear and satisfactory proof. Drayton v. Drayton, 54 N. J. Eq. (9 Dick.) 298, 301.

If a wif e leaves her husband because of his adultery committed elsewhere than at their dwelling (while the separation thus created is not constructive desertion on his part so as to enable her to procure a divorce from him for that cause), it is constructive desertion of her by him for the purpose of enabling her to compel him to support her; in other words, it amounts to the abandonment or separation (whatever the difference) by him from her without justifiable cause, within the meaning of section 26 of the Divorce act.

In divorce cases the wife is a privileged suitor, and, as a general rule, is entitled to alimony and counsel fee pendente lite, whether she be complainant or defendant. If, however, she has sufficient property of lier own no allowance will be made. Marker v. Marker, 11 N. J. Eq. (3 Stock.) 256; Westerfield v. Westerfield, 36 N. J. Eq. (9 Stew.) 195. There is some distinction, however, accordingly as the wife complains or is complained against. Chancellor Pennington, in 1842, in the case of Amos v. Amos, 4 N. J. Eq. (3 Gr. Ch.) 171, 172, held that when the wife is complained against she has not as just ground for an allowance as when she is complainant. But Chancellor Runyon, in 1881, in the case of Johnson v. Johnson, 4 N. J. L. J. 241, without distinguishing or noticing Amos v. Amos, held that on a bill for divorce by the husband, if the wife applied for alimony and counsel fee, she was entitled to them as a matter of course. This is directly opposed to Chancellor Pennington’s ruling and obviously is the better opinion. I think it is universally conceded that where the husband sues the wife for divorce she is entitled to alimony and counsel fee pendente lite, if she denies under oath the matrimonial offence charged against her and is without means for her support or for defending her husband’s suit. - Although it may be she is disentitled if her denial is not made in good faith bur is merely sham and for the purpose of protracting the period during which the injured husband may be compelled to support her, but as to this, queere. In Kirrigan v. Kirrigan, 15 N. J. Eq. (2 McCart.) 146, 148, it was held that where it appears that a suit for divorce was not instituted by the wife in good faith, but for the mere purpose of collecting money from her husband or compelling him to support her, alimony pendente lite will be denied. See, also, Glosser v. Glosser, infra. But these were cases in which the wife was complainant.

Where the wife is complainant and no sufficient case is made by her bill, alimony and counsel fee pendente lite will be denied. Ballentine v. Ballentine, 5 N. J. Eq. (1. Halst.) 471, 476. Or where no sufficient case is made by the bill and affidavits. Martin v. Martin, 8 N. J. Eq. (4 Halst.) 563, 569; Doughtery v. Doughtery, Ibid. 540.

In the ease at bar, the wife shows herself to be without means, and it appears that the husband is abundantly able to respond. This being the posture of affairs, the wife’s prayer for alimony and counsel fee will be granted, unless the facts disentitle her.

Now, the rule is different in cases for alimony disassociated from divorce a vinculo. Vandegrift v. Vandegrift, 30 N. J. Eq. (3 Stew.) 76, 77. In maintenance suits the court looks into the merits of the application as disclosed by the pleadings and affidavits and is thereby guided in the exercise of its discretion. Ibid. 77; Glasser v. Glasser, 28 N. J. Eg. (1 Stew.) 22. And' when the bona fides of a wife’s application is questionable, preliminary relief will be denied. Ibid. 22.

The legislature appears to have made a distinction between divorce and alimony cases by providing that in the latter a bond may be required of a wife to answer for costs. P. L. 1907 p. 474 § 27. See Harris v. Harris, 62 Atl. Rep. 703.

Cray v. Cray, 32 N. J. Eg. (5 Stew.) 25, was a bill for divorce, but, presenting no ground therefor, it was retained as a bill for maintenance, and the preliminary application for alimony and counsel fee was denied. Chancellor Runyon observed (at p. 28) that in these cases the court acts with great care in passing upon such applications, and cited Glasser v. Glasser, ubi supra. Now, Glasser v. Glasser was a suit for divorce from bed and board with a prayer for alimony incidental thereto, and because the defendant answered denying every material allegation against him and produced, on the motion for alimony and counsel fee pendente lite, numerous affidavits in corroboration of his answer, and the affidavits on the part of the petitioner not being of a character to countervail them, the application for temporary relief was denied. The denial in that ease (Glasser v. Glasser) was rested largely upon Begbie v. Begbie, 7 N. J. Eq. (3 Halst.) 98; Doughtery v. Doughtery, 8 N. J. Eq. (4 Halst.) 540, and Martin v. Martin, Ibid. 563. Begbie v. Begbie was a suit for divorce a mensa et thora. Doughtery v. Doughtery was a case for alimony and maintenance, and so was Martin v. Martin.

The rule deducible from these cases seems to be that as well in cases for divorce a mensa et thora as in those for alimony pure and simple, where the wife has in fact left the husband on account of his alleged derelict conduct, her application for alimony and counsel fee pendente Hie will be scrutinized and decided upon the weight of the testimony then presented and the rules of law applicable thereto, just as other litigated motions are decided, even though she be a favored suitor. Still 1 do not think that what Chancellor Green said in Walling v. Walling, 16 N. J. Eq. (1 C. E. Gr.) 389, that on application for alimony pendente lite the case must be taken most strongly against the petitioner and that the burden of proof is upon her, was intended to have been laid down by him as a universal rule applicable alike to all cases of this character, but that it was intended, as a perusal of the case will disclose, to be applicable only to the case then before the court, which was one in which the application for temporary allowance was submitted upon the facts contained in the petition alone, and which were meagre and unsatisfactory.

Because the defendant denies under oath the charge against him, it does not necessarily follow, said Vice-Chancellor Bird, in Tyrell v. Tyrell, 3 Atl. Rep. 266, 267, that alimony pendente lite will be denied; for if that were so such alimony would seldom' be ordered in litigated cases.

While the mere denial of the husband under oath of the charge against him will not necessarily, and, it seems to me, ought not, under ordinary circumstances, to relieve him from the payment of preliminary alimony and counsel fee, nevertheless, it seems equally clear, that where his sworn denial is abundantly corroborated, and the case made by the pleadings and affidavits on the preliminary motion is with him by the application of the usual rule concerning the burden of proof, he should not be visited with any interlocutory order for allowances where it appears that the wife has left him either because of his alleged extreme cruelty or adultery; because, a wife who leaves her husband does so at her peril, and assumes the burden of making the desertion constructively his by establishing his guilt by clear and satisfactory proof. See Drayton v. Drayton, ubi supra. And this must be so on application for temporary alimony and counsel fee under the rule laid down in Martin v. Martin, Doughtery v. Doughtery and Glasser v. Glasser, ubi supra, as well as on final hearing.

It is not necessary to review or discuss the facts in the case at bar. The proofs before the court on this motion if not more favorable to the defendant than to the petitioner, at least make her ease appear extremely doubtful; and to doubt is to deny. It may be that upon final hearing the petitioner will be able to produce more and stronger proof, and by cross-examination of defendant’s witnesses or otherwise, a case may be made which will entitle her to the relief she seeks; bur, as the case stands upon the affidavits submitted on this application, I am constrained to the conclusion that the defendant is entitled to prevail. His proofs certainly countervail the petitioner’s. Therefore the motion' for alimony and counsel fee pendente lite will be denied.


source: Caselaw Access Project

license: Public Domain

text:
    Michael Allman et al. v. United Brotherhood of Carpenters and Joiners of America et al.
    [Decided September 15th, 1911.]
    1. When a preliminary writ of injunction issues a subpaina ad respondendum must be taken out with it and returned into court within the time prescribed by rule for the return of service of the injunction, or, in default, the injunction will be dissolved, on defendant’s motion.
    2. To make such motion, the defendant, not being in court by plea, answer or demurrer, would have to appear formally for the purpose. And if he desires to appear specially for that purpose only and not have his appearance operate to clothe the court with jurisdiction over him generally in the suit, it seems he must obtain leave of the court to enter such an appearance.
    3. There is a material distinction between a preliminary writ of injunction and an ad interim restraining order. The injunction runs—to use its language—until the defendant “shall have fully answered the bill of complaint and our said court shall make other order to the contrary.” An ad interim restraining order always commands the defendant to show cause on a certain day why an injunction should not issue, and he is thereby brought into court for the purpose of that motion only, and thus afforded an opportunity to litigate with the complainant as to the propriety of the issuance of an interlocutory injunction, without the filing of an answer and without appearing generally in the cause.

      4. Mandatory injunctions are rarely granted before final hearing, and are, as a general rule, strictly confined to cases where the remedy at law is plainly inadequate.
    0. To justify the issuing of an interlocutory injunction, the case made by the complainant must exhibit a right free from doubt or reasonable dispute; and the writ will not issue where the complainant's case is doubtful on the law or the facts. To doubt is to deny.
    On bill, &c. On application for a preliminary injunction.

      Mr. Samuel F. Leber, for the complainants.

      Mr. Henry Carhss, for the defendants.
   Walker, Y. C.

" This is an application for a preliminary injunction, the complainants being all of the members of Local Union 1787 of the United Brotherhood of Carpenters and Joiners of America, and the suit is brought against the United Brotherhood of Carpenters and Joiners of America, a national union of carpenters and joiners, and, succinctly stated, the bill prays for a decree restoring the complainants to full membership rights in the defendant association, alleging an illegal suspension therefrom, and also prays an injunction restraining the defendants from boycotting any of the complainants and any person employing or intending to employ the complainants or any of them.

The bill was filed July 34th, 1911, and an order was made thereon the same day, commanding the defendants to show cause on the 1st day of August then next why an injunction should not issue according to the prayer of the bill, and also ordering that in the meantime and until the further order of the court the defendants and each of them, their agents, servants, attorneys, confederates and any and all persons acting in aid of or in conjunction with them, or any of them, be restrained from conspiring, agreeing or combining to obstruct or prevent any of the complainants from' procuring employment, and from interfering with any person, firm or corporation employing any of them, and from declaring or threatening any boycott against any of them, and from declaring or threatening any boycott against any of the products of any person, firm or corporation employing them', and from printing, issuing, publishing or distributing any copy of any newspaper, magazine, circular, letter or document which shall in any manner refer to any of the complainants or their association, Local Union 1787, as being non-union, unfair or scabs, and from procuring the dismissal from employment of any of the complainants.

On the return day an order wras made on application of de-~ fendants’ counsel continuing the hearing on the order to show cause, to August 22d, 1911, and on that date the matter was continued to August 24-th, 1911, when it came on to be heard upon bill and affidavits, and on affidavits on behalf of defendants, in the presence of counsel of both parties.

As one of the contentions on behalf of the defendants, it was urged that no injunction should be awarded, and that the bill should be dismissed, because no sub poma ad respondendum had been taken out and served upon the defendants, although four weeks had elapsed since the filing of the bill.

It is entirely settled that upon the issuance of a preliminary writ of injunction a subpoena must be taken out and served. Lee v. Cargill, 10 N. J. Eq. (2 Stock.) 331 The penalty for neglect is dissolution of the injunction. If a preliminary injunction had issued in this case instead of a temporary restraining order, the motion now made on behalf of the defendants would have to be granted. In Lee v. Cargill, Chancellor Williamson said that the practice would be thereafter strictly followed requiring the subpoena to be taken out with the writ of injunction and returned into court within the time prescribed by the rule for return of service of the injunction. The reason is that the suitor who would restrain his adversary must use due diligence in expediting the cause.

The bill in this cause prays for an answer without oath, but, upon the issuance of either a preliminary injunction or a preliminary restraining order, the defendants might have come in ■and answered the bill on oath, and such answer would have been evidence for them on motion to dissolve the injunction, or in resisting its issuance, notwithstanding the prayer for answer without oath. Ireland v. Kelly, 60 N. J. Eq. (15 Dick.) 308. But no answer is required without a subpoena compelling it.

If a complainant could obtain a preliminary injunction and not summon the defendant to answer the bill, he could thereby perpetually enjoin him without litigating the matter in dispute between them, unless the defendant voluntarily appeared and answered. Ordinarily, defendants do not voluntarily appear; they are generally unwilling to involve themselves in the annoyance and expense of litigation, with the hazard of defeat, unless compelled to do so by a compulsory process of the court. And that is why it is that a complainant obtaining a preliminary injunction is required to speed his cause and bring the defendant compulsorily into court at the earliest day and afford him an opportunity to answer involuntarily, and obtain the benefit of his answer.

The writ of injunction now rarely issues upon the filing of a bill, but in its stead an order is usually made requiring the defendant to show cause on a certain day why an injunction should not issue, and usually that order contains an ad interim restraint, and is generally called a restraining order, although sometimes it is called an injunction order. Now, an order to show cause serves the purpose of a subpoena issuing with a preliminary writ of injunction to this extent: it compels the defendant’s appearance on the return of the order, thus affording him an opportunity, by the use of ex parle affidavits, to combat the complainant’s claim to a preliminary injunction, without his having to answer or appear generally. Of course, he may make this resistance by answer and affidavits as well as by affidavits alone, but does not have to file an answer and thus put himself voluntarily in court. If, on the return of the order to show cause, it is made absolute and a preliminary injunction is ordered to issue, then a subpoena must go out with the injunction, unless, of course, the defendant has already voluntarily answered.

There is a material distinction between a restraining order and an injunction. 16 Am. & Eng. Encycl. L. (2d ed.) 349; Dean v. Bonnell, 4 N. J. L. J. 348. In this case (Dean v. Bonnell) the bill for injunction was filed and an order to show cause, including a restraint, was made, and the hearing thereon adjourned several times, and then a motion was made on the part of the defendant to dismiss the bill on the ground that no subpoena to answer had been issued. Vice-Chancellor Dodd observed that the case of an order to show cause was different from that of an injunction, the order itself commanding the defendant to show cause on a certain day being sufficient to bring him into court.

Upon the authorities, therefore, my conclusion is, that a subpoena is not required to be taken out with a restraining order which commands the defendant to appear on the return day and show cause why an injunction should not issue, but that when a preliminary injunction issues ex parte upon the filing of a bill without any order to show cause being made, as it sometimes does, it runs—to use its language—until the defendant “shall have fully answered the bill of complaint, and our said court shall make other order to the contrary;” and if the defendant would seek to have the restraint removed, he must answer (unless the chancellor shall allow the motion to be heard on affidavits under rule 123), and he can be compelled to answer only by the service of subpoena for that purpose; lie is never obliged to appear voluntarily.

If, on the hearing of an order to show cause a preliminary injunction is awarded, then a subpoena must be- issued with the injunction, and if it is not issued and returned served within the time prescribed by the rule for the return of the injunction (Lee v. Cargill, ubi supra), the injunction would be dissolved on the defendant’s motion. To make this motion, the defendant, not being in court by plea, answer or demurrer, would have to appear formally for the purpose. Groel v. United Electric Co., 68 N. J. Eq. (2 Robb.) 249, 251. And if the defendant desires to appear specially for the purpose of making the motion to dissolve only and not to have his appearance operate to clothe the court with jurisdiction over him generally in the suit, he must doubtless obtain leave of the court to enter such an appearance. Dan. Ch. Pl. & Pr. (6th Am. ed.) 453. In the unreported case of Reimers v. Magowan (July 9th, 1901, docket 23, p. 389), in which a preliminary injunction had issued without a subpoena having been issued and return served within the time in which the injunction was returnable,‘counsel for the defendant, Sldnn, applied for and obtained leave from Yiee-Ohancellor Eeed to appear specially for the purpose of moving to dissolve the injunction as to him, and, such appearance being entered, the injunction was, on hearing of the motion, dissolved as to that defendant.

This brings me to the consideration of the propriety of the issuance of a preliminary injunction.

In the first place, let it be stated that there is neither allegation nor proof that the defendants have printed or distributed any magazine or document asserting that Local Union 1787, or its members, are non-union, unfair or scabs, and in that respect the restraining order is too broad, and it would, therefore, to that extent, have to be modified. All that the defendants did in this regard was to publish in their official journal, “The Carpenter,” in the April number, 1911, “that Local Union 1787, by orders of-the G. E. B. (General Executive Board), has been and at this moment stands suspended from our organization.” It was not proved that there is any threat or intention of repeating even this assertion. In this situation, a preliminary injunction should be refused. Pennsylvania Railroad Co. v. National Docks Railway Co., 52 N. J. Eq. (7 Dick.) 555.

The other part of the case refers to the alleged unlawful suspension of Local Union 1787 from the national body and the prayer for restoration to membership, and of attempts of the defendants to prevent the complainants from obtaining employment by means of the boycott, threats, &c. As to this the denials of the defendants under oath are as explicit as the sworn assertions of the complainants, and put the facts relied upon for the injunction in such a state of equipoise or doubt as, under the well-known rule, to forbid of the issuance of a preliminary injunction.

It is perfectly well settled that whenever the complainant’s case is doubtful on the law or the facts a preliminary injunction will not issue. To doubt is to deny. To justify the issuing of an interlocutory injunction the case made by the complainant must exhibit a right free from doubt or reasonable dispute. Roberts v. Scull, 58 N. J. Eq. (13 Dick.) 396.

As to restoration to membership on account of the alleged illegal suspension from the national body of Local Union 1787, a mandatory injunction would be required, and such writs are rarely granted before final hearing, and'are, as a general rule, strictly confined to cases where the remedy at law is plainly inadequate. Lord’s Executors v. Carbon, Iron Manufacturing Co,, 38 N. J. Eq. (11 Stew.) 452. It was conceded on the argument that this case did not fall within the exception to the rule. Therefore no mandatory injunction may preliminarily issue for the restoration of the local to the general body.

Other questions raised and discussed on the hearing are without controlling force, and it is unnecessary to decide them.

Upon this whole matter I am constrained to the conclusion that the complainants are not entitled to a preliminary injunction, and the restraining order must, therefore, be dissolved.

No costs will be awarded on this application. The costs will abide the event of the suit.


author: Walker, Vice-Ordinary.

text:
    Adelaide Lyon, appellant, v. Adaline E. Bird, executrix and trustee of Theodore S. Bird, deceased, respondent.
    [Decided June 23d, 1911.]
    1. Though executors who are also trustees under a will are entitled to commissions on the corpus of the estate in each capacity, yet, where they settled their accounts as executors in eleven months after their assumption of the administration of the estate, amounting to $81,629.48, and of this amount $72,417.62 was the amount of the inventory and appraisement, of which they became possessed on proving the will and qualifying as executors and trustees, and the difference, $9,211.S6, came from the payment of installments on lands of the testator contracted to be sold, they having collected income amounting to $6,955.60, and showed disbursements of all of that sum, except .$285.66, among which disbursements were about $2,500 of income, divided between the life tenants, and $347.78 as commissions, being five per cent, on the income, it was improper to allow as executors’ commissions five per cent, on the principal; a proper allowance being one per cent, on the amount of the inventory, and two per cent, or two and a half per cent, on the principal by which the inventory was augmented.
    2. Where executors, who were also trustees, settled their accounts in eleven months and were allowed five per cent, commissions on the principal of the estate, which was excessive, a further allowance to the surviving trustee of another five per cent, on $15,798.39 of principal, which was not in the inventory or account of the executors, was improper.
    3. An allowance of commissions on the principal or income of a trust estate must be made directly by the orphans court to the trustee, and out of this the trustee is bound to compensate agents, attorneys, or others who have performed her duties; the court being unauthorized to make an allowance direct to such agents, attorneys, &c., for performing duties devolving on the trustee.
    On appeal from a decree of the orphans court of the county of Hunterdon allowing and disallowing certain exceptions to executrix’s account.

      Mr. Rickard S. Kukl and Mr. A. Wheeler Palmer (of the Hew York bar), for the appellant.

      Mr. Abraham 0. Hulsizer, for the respondent.
   Walker, Vice-Ordinary.

On May 16th, 1910, Mrs. Adaline E. Bird, surviving trustee of Theodore S. Bird, deceased, filed a principal and income account extending from June, 1906, to April, 1910. To this account Adelaide Lyon, one of the beneficiaries of the estate, filed eighteen exceptions, which were dealt with by the Hunterdon county orphans court, and exceptions 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13 and 15 were dismissed; 16, 17 and 18 were stricken out as repetitional of 8, 9 and 10; 8 was sustained in part and dismissed in part; 11 was sustained to the extent of allowing five per cent, commissions to M. E. Dilts for collecting rents and five per cent, commissions to A. C. Hulsizer for collecting interest on mortgages, both as being commissions allowed by law to the trustee for collecting and disbursing the income of the estate, and was further sustained as to items improperly charged to the estate, being for services and expenses of Mr. Hulsizer, amounting to $458.60.

The respondent, Mrs. Bird, trustee, in her answer asks that this finding against her be reversed. Cottnsel for the appellant claims that the answer does not formally present that issue, and that the question of disallowing the $458.60 item is not properly presented and cannot be adjudicated. Assuming that it is in shape for consideration, I will dispose of it by holding that the orphans court was right in allowing the exception to that extent and in disallowing the executrix a credit for the sum mentioned, and that part of the decree will be affirmed.

Only exceptions 11 and 12 are involved in this appeal. Originally, there were three executors, one being Mrs. Bird. The other two died, one May 8th, 1907, the other August 31st, 1907. The surviving trustee, Mrs. Bird, has done practically nothing with reference to the administration of the estate, almost everything having been done for her.

On May 15th, 1906, the three executors named in the will filed their account showing the corpus of the estate which had come to their hands to be $81,629.48. On this amount the orphans court allowed them a commission of five per cent., amounting to $4,275, thus reducing the principal to $69,691.93. Under the will of the testator certain specific legacies were bequeathed to the widow and to the relatives of the deceased of the value of $131.01, and also pecuniary legacies amounting to $5,000; and all the remainder of the estate (real and personal) was devised and bequeathed to the executors, in trust, to collect the interest on securities and the rents from real estate, and to divide the net annual income into two parts, one to go to the testator’s widow and the other to his daughter during then-joint lives, and on the death of each to divide the one-half among the children of the deceased life tenant, but not until the youngest child should attain the age of thirty years. The trust will undoubtedly last for many years to come, and if Mrs. Bird, the surviving trustee, should die in the lifetime of the daughter, a trustee, one or more, in succession to her, will have to be appointed and paid commissions on the principal of the estate, and so, too, if, at the mother’s death after the daughter’s decease, any of the remaindermen should be under thirty years of age.

The executors settled their account in eleven months after their assumption of the administration of the estate. Of the $8.1,629.48, upon which the allowance was made, $72,417.62 was the amount of the inventory and appraisement, of which they became possessed upon proving the will and qualifying as executors and trustees, and the difference, $9,211.86, came from the payment of installments on lands of the testator contracted to be sold.

True it is that tiróse occupying the dual capacity of executors and trustees under a will are entitled to commissions on the corpus of the estate in each capacity (Pitney v. Everson, 42 N. J. Eq. (15 Stew.) 361), yet, as sections 128, 129 of the Orphans Court act (P. L. 1898 p. 762) provide that the allowance of commissions'to executors, administrators, guardians or trustees shall be made with reference to tlreir actual pains, trouble and risk in settling- an estate, rather than in respect to the quantum of the estate, and that such commissions on any estate where the receipts exceed the sum of $50,000 shall be determined by the orphans court on the final settlement of their accounts, according to the actual services rendered, not to exceed five per centum on all sums which come into their hands, it seems to me that the allowance of the full five per cent, commissions to these executors by the Hunterdon county orphans court was excessive and unwarranted. The account was the final account of the executors, and, at that time, it was proper for the orphans court to make them an allowance of commissions on the principal, but, something like one per cent, on the amount of the inventory, and, possibly, two or two and one-half per cent, on the principal which augmented the amount of the inventory, would have been a fairly reasonable allowance in view of the fact that the executors closed their account ■ within a year and then transferred the securities to themselves as trustees; in fact they got them as trustees under the will, but were obliged to convert enough as executors to satisiy the legacies, which were practically inconsiderable.

If trustees administer an estate for a quarter of a century, investing and reinvesting, perhaps over and over again, the securities of the estate, and, in the end, are entitled to no more than five per cent., upon what theory can the maximum allowance to these executors, whose duties with reference to the corpus of the estate were more or less perfunctory, be possibly justified ?

This court held (In re Hibllers Estate, 78 N. J. Eg. (8 Buch.) 217) that where one was named executor and trustee and his duties as executor were inconsiderable compared with his duties as trustee, in determining his compensation, the principal fund should be deemed as having passed to him at once as trustee, and an allowance on the corpus should be held to have been an allowance to him as trustee, though the accounts were filed as executor. In that case the trustee had filed several accounts as “executor,” arid had been allowed three per cent, commissions on the corpus of a very large estate, besides five per cent, on the income. After managing the estate for twenty-two years he resigned and asked to be relieved from the trust and applied for an allowance of two per cent, on the corpus as trustee. As the trust had probably eleven years to run as to one portion and sixteen years as to another, the applicant ivas denied further commissions on the corpus, so that the court would be in a position thereafter to allow commissions to the new trustee on the corpus of the estate not exceeding two per cent., making in the end five per cent., if so much should be earned.

The executors in their account in this case charged themselves with income collected $6,955.60, and showed disbursements of all that sum except $285.66; among which disbursements were about $3,500 of income divided between the life tenants (which in reality was executing their office of trustees) and $347.78 of commissions, being five per cent, commissions on the income. This was in April, 1906, and here ended the executors’ duties as such, and the corpus of the estate passed to them as trustees, and that, too, by devise and bequest in that behalf in the will contained, as already stated. This ease is just like that In re Hibbler’s Estate, supra. The duties of the executors were inconsiderable, and the principal fund, at least that remaining at the foot of their account, namely, $69,691.93, should be deemed as having passed to them as trustees in the first instance, and the allowance on the corpus in excess of the amounts above suggested, namely, one per cent, on $72,417.62, and two and one-half per cent, on $9,211.86, should be held to be an allowance to them as trustees, though the account was filed as executors.

In re account of New Jersey Title Guarantee and Trust Co., 32 N. J. L. J. 137, the Morris county orphans court dealt with the allowance of commissions upon an estate which had been administered by a trustee for little over six and a half years. On tiie income five per cent, was allowed, although the estate was a large one. As to commissions on the principal of the trust fund the court allowed one per cent., considering the character of the services and risk incurred by the trustees up to the time of the accounting, and remarked (at p. 141) (quoting from Conover v. Ellis, 49 N. J. Eq. (4 Dick.) 549) that "where the final.distribution of an estate by an executor is, by will, deferred for a considerable time after the settlement of his account, he will not, in the allowance of commissions upon that accounting, be paid for that distribution, or be paid commissions at the highest rate permitted by the statute. The court will reserve a portion of that which it may allow for his final compensation when he shall have completely performed his duty.” This decision of the Morris county orphans court was sustained by the ordinary in this court on December 20th, 1908, without a^ opinion being filed. An appeal was taken, and the court of errors and appeals held that, under the circumstances, the award of five per cent, commissions upon the income should be sustained, although it declared it was not to be understood as holding that even in that case so large an allowance would be proper in the future. And on the question of the allowance of the commissions on the corpus the court thought that as the trustee had administered the trust for so short a time (it was six and a half years), and had so little to do with making or changing investments, that no commissions on the corpus ought to have been allowed, and the decree was reversed, and the record remitted that a decree might be entered, disallowing the commissions on the corpus. In re New Jersey Title Guarantee and Trust Co., 76 N. J. Eq. (6 Buch.) 293.

As the court of errors and appeals decided In re New Jersey Title Guarantee and Trust Co., supra, that no allowance of commissions on the corpus should then be made—not even one per cent, to a trustee who had managed an estate for six and a half years, when the trust had still a iong time to run, and the trustee had had little to do with making or changing investments—how can there be any justification for the payment of' five per cent, commissions to the trustees in this case, although in their capacity as “executors,” when only eleven months after they assumed their duties they simply charged themselves as trustees with the securities which had come to their hands? However, there is no exception here involving the allowance of five per cent, on principal made to the executors in 1906, but that allowance is animadverted upon for the reason that in the twelfth exception, which is involved in this appeal, objection is made to the allowance of another five per cent, to the surviving trustee, Mrs. Bird, upon $15,798.39 of principal collected, which was not in the inventory or account of the executors, the allowatiee amounting to $789.9.1. The exception to this item will be sustained and the credit of these commissions to the trustee will be disallowed in tolo. She has already received one-tliird of $4,275, being the amount of commissions allowed the executors on the settlement of their account. This makes an allowance of $1,425, or one sixty-six hundredths and two-thirds per cent., to her, and she has done practically nothing with reference to the estate, everything being attended to for her by her attorney and agent. She will be required to manage this estate for many years to come before she may be considered as having earned any further commission on the corpus. This disposes of the twelfth exception.

As to the eleventh exception, Lhe five per cent, commissions allowed to Mrs. Dilts for collecting rents, she being the widow of one of the deceased trustees, and the similar allowance to Mr. Hulsizer, attorney for the estate, for collecting interest on mortgages, will be sustained—that is, the decree of the orphans court allowing those charges in lieu of an allowance of five per cent, to the trustee for collecting and disbursing so much of the in-come of the estate will be sustained. The disallowance of the $458.60 paid to Mr. Hulsizer has already been sustained.

The rule regulating the allowance of commissions, I take it, is, that such allowance on the principal or income of an estate, must be made directly by the orphans court to the executor or trustee, who, out of such allowance, must compensate agents, whether attorneys or others, for performing the representative’s duties. In addition, there is to be allowed any expenses aetualty, that is to say, legitimately, incurred in the management of the estate and in making collections; and, obviously, such expenses are those only which are necessarily incurred, and a claim for their allowance should be scrutinized by the court. The allowance of commissions on principal and on the collection and disbursement of income must be made with reference to the actual pains, trouble and risk of those administering the estate; and commissions on the principal where the estate, as in this case, exceeds $50,000, must be determined with reference to the actual services rendered, and the maximum rate should be allowed only when clearly earned—never for the mere asking.


author: G-ummbre, Ci-jieb-Justice.

text:
    Joshua S. Cope, complainant-respondent, v. C. B. Walton Company et al., defendants.
    [Argued March 16th, 1911.
    Decided June 28th, 1911.]
    An assignment by a corporation, insolvent to the knowledge of the assignee, of money to become due under a contract for work by the corporation, even if considered'a sale for value, is ineffective against the lien of one subsequently furnishing the corporation material for the work; the only exception to the provision of the Corporation act (P. L. 1896 p. 298 § 64), that every sale, conveyance, assignment, or transfer by a corporation when insolvent shall be void as against creditors, being that a liona fide purchase for a valuable consideration, before the corporation shall have suspended its ordinary business, “by any person without notice of such insolvency,” shall not be invalidated.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 77 N. J. Bq. (7 Buck.) 512.

      Mr. Frank 8. Kaizenbach, Jr., for the appellant.

      Messrs, James &, Malcolm G. Buchanan, for the respondent.
   The opinion of the court was delivered by

G-ummbre, Ci-jieb-Justice.

The bill in this case was filed to enforce the payment of a municipal lien claim under the act of March 30th, 1892. Both Cope, the complainant below, and one Thomas R. Allen claimed the fund. The proofs showed that the .defendant C. B. Walton Company, a corporation of this state, had a contract with the freeholders of Mercer county for the construction of a stone road at a cost of $11,360.64. The complainant furnished crushed stone to the Walton company for the work, and it is for the moneys due for that material that the lien is filed against the freeholders of the county. At tire time when the contract was entered into between the Walton company and the county Charles B. Walton, the treasurer and general manager of the company, applied to Allen for financial assistance to enable the company to carry on the work of building the road. Allen thereupon went with Walton to the First National Bank of Trenton, and the following arrangement was then entered into between the parties: the Walton company agreed to give Allen an assignment of the moneys to grow due under the road contract; Allen agreed that he would endorse the notes of the company, and the First National Bank agreed that it would discount the notes so endorsed. In pursuance of this arrangement the Walton company executed the following order:

"Trenton, New Jersey, January 13, 1908. Mr. E. P. Mount, County Collector, Mercer county, N. J. Dear Sir: Please pay Thomas R. Allen all moneys due on contracts for roads as the monthly payments at different times as they come due until the completion of all work contracted for the year 1908, by doing so you will oblige, Yours very truly, The C. B. Walton Co., Charles B. Walton, Treasurer.”

The contention, on the part of Allen is that by virtue of this assignment, or order, his right to the moneys earned by the Walton company on the contract with the county is superior to that of any mechanic or materialman furnishing work or materials upon the road.

Upon the hearing before the vice-chancellor the complainant offered evidence to show that at the time of the making of this assignment by the Walton company to Allen the company was insolvent to the knowledge of Allen. The vice-chancellor found this fact to be established by the proofs. This finding, in our judgment, is amply supported by the evidence submitted.

Conceding that the order upon the county collector, signed by the treasurer of the Walton company, in its name, bound the company, and also the board of freeholders of the county, and was therefore valid as between Allen, the company, and the board, the question remains whether, in view of the fact that, at the time the order was made the company was insolvent, and its condition known to Allen, his right to the fund in controversy is superior to that of the complainant under his lien. The answer seems to us not to be in doubt. The sixty-fourth section of our Corporation act (P. L. 1896 p. 298) provides that

“whenever any corporation shall become insolvent, or shall suspend its ordinary business for want of funds to carry on the same, neither the directors, nor any officer or agent of the corporation shall sell, convey, assign or transfer any of its estate, effects, choses in action, goods, chattels, rights or credits, lands or tenements; * * * and every such -sale, conveyance, assignment or transfer shall be utterly null and void as against creditors; provided, that a liona fide purchase for a valuable consideration, before the corporation shall have actually suspended its ordinary business, by any person without notice of such insolvency, * * * shall not be invalidated or impeached.”

Considering Allen as a purchaser, for value, of the chose in action assigned to him by the order drawn upon the county collector, his knowledge of the company’s insolvency, at the time he took the assignment, excludes him by the very words of the proviso from the protection afforded by it. The decree appealed from, which subordinates Allen’s right under his assignment to that of the complainant under his lien claim, must be affirmed.

For affirmance—The Chief-Justice, Garrison, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, VredenBURGH, CONGDON, SULLIYAN—11.

For revena!—None.


author: G-ummere, Chief-Justice.

text:
    Imperial Realty Company, respondent, v. West Jersey and Seashore Railroad Company, appellant.
    [Argued June 22d, 1911.
    Decided November 20th, 1911.]
    Where complainant asserts that it has .an easement over defendant’s land, and seeks to restrain the defendant from interfering with its use, and defendant disputes its right, equity will not interfere by injunction until such right is established at law.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Mg. (8 Buch.) 170.

      Messrs. Bourgeois & Coulomb, for the appellant.

      Messrs. Thompson & Smothers, for the respondent.
   The opinion of tlio court was delivered by

G-ummere, Chief-Justice.

The complainant, the Imperial Realty Company, by its bill in this case seeks an injunction restraining the defendant from interfering with its free use and enjoyment of an alleged right of way over lands of the defendant, the right of way being, as is claimed, an alley twenty feet in width, located at the rear of the complainant’s land. The defendant, by its answer, denies the existence of such an alley, or that the complainant has any right of way over, or easement in, the land sought to be covered by it.

It is the settled law of this state that where the fundamental right under which the complainant prays equitable relief is the legal title to an easement in lands oE the defendant, and that right is in substantial dispute, its establishment at law is necessary to justify the interference of a court of equity. Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507; Borough of South Amboy v. Pennsylvania Railroad Co., 77 N. J. Eq. (7 Buch.) 242; Mason v. Ross, 77 N. J. Eq. (7 Buch.) 527. The learned vice-chancellor who heard the cause in the court below, while recognizing the existence of this rule, considered that it did not apply to the ease in hand because he found, from the proofs submitted, that the legal right of the complainant was not substantially in dispute, its existence being made clear, as he conceived, by facts which were not denied. He, for this reason, proceeded to final hearing on the merits, without first requiring the complainant to establish the existence of its alleged easement by an action at law.

We are not entirely satisfied that the dispute between the parties as to the present existence of the right asserted by the complainant was unsubstantial. But, be that as it may, there was certainly much more than a formal dispute with relation to the extent of that right. The complainant asserted that it had an easement of way over all portions of a strip of land twenty feet in width, belonging to the defendant, and this claim was disputed by the defendant. The vice-chancellor concluded that the complainant had failed to establish its easement to the full extent of its claim, and held that under the proofs its right was clear only to a way ten feet in width; and then restrained the defendant from interfering with the complainant in its use of the way as so defined. In the late case of Borough of South Amboy v. Pennsylvania Railroad Co., supra, the primary matter in dispute was the width of a public road. After a consideration of the proofs submitted the court of chancery adjudged that it was “at least two rods wide,” and undertook to settle the rights of the parties upon that basis. It was held in this court that the action of the court of chancery was unwarranted for the reason (among others) “that the proper forum for settling the width of a highway is a court of law, and the proper method for its correct determination is a trial by jury.” Opinion p. 246. The principle underlying the decision is, of course, that the extent of a purely legal right, as well as the existence thereof, is a matter to be settled at law, and until it is so settled, the aid of a court of equity in its enforcement cannot properly be invoked.

For failure of the complainant to establish at law the extent of its claimed right before filing its bill the decree below must be reversed.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yooehees, Kaltsch, Bogert, Vrkdenburgh, Congdon, White—12.


author: Gummere, Chiee-Justice.

text:
    John B. Ball et ux. v. Nellie W. Ball et al.
    [Argued July 7th, 1911.
    Decided November 20th, 1911.]
    Parents, who make a conveyance to a creditor of their sou under pressure of a threat to have the son criminally prosecuted, made in the honest belief that the son had subjected himself to such a prosecution, although the contrary was the fact, are entitled to have the conveyance set aside.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 8.

      Messrs. Pitney, Hardin & Skinner, for the appellants.

      Messrs. Piker Piker, for the respondents.
   The opinion oE the court was delivered by

Gummere, Chiee-Justice.

The bill in this case was filed to Fet aside two deeds of conve3rance made by the complainants to Sidney S. Ward, the defendants’ decedent, upon the ground that they were executed under duress exercised upon the grantors by Mr. Ward; the duress complained of consisting of threats of the immediate arrest and imprisonment of their son, Arthur I). Ball, for obtaining money from Mr. Ward under false representations.

We concur in the conclusion reached by the learned vice-chancellor that the complainants established by a fair preponderance of proof the validity of their claim that these conveyances were made as a result of the threat to have their son arrested, and for the purpose of preventing that threat from being carried into effect. The analysis of the testimony made by the vice-chancellor, and set out in his opinion, is complete and accurate, and leaves nothing to be added by us.

The vice-chancellor further concluded from the proofs submitted that the money advanced by Ward to the son of- the complainants was not, in fact, obtained under false pretenses, although Mr. Ward probably believed that this was the case when he made the accusation to the complainants. We concur in this conclusion of the vice-chancellor, and for the reasons which he states in his opinion.

Having reached these conclusions upon the facts the vice-chancellor in his opinion then takes up the consideration of the question whether a conveyance made by parents to a creditor of their son, under the pressure of a threat to have the son criminally prosecuted, is valid, when it appears that the creditor honestly believed that the son had subjected himself to such a prosecution, although the contrary was the fact. He reaches the conclusion that the grantors of a conveyance made under such conditions are entitled to have it set aside. We concur with him in this view.

In discussing this latter question, however, the learned vice-chancellor goes outside of the lines of the question, and the conclusion declared by him is broader than the decision of the case required. He thus states it: “In my judgment the equitable

rule to be applied in this case is that it is against equity and good conscience for the creditor to extort from the parent payment or security for the debt of the son, for which the parent is not responsible, by threats of criminal prosecution of the son, even if imprisonment be lawful.” The question whether a conveyance made by a parent to prevent the imprisonment of a child who has, in fact, been guilty of a criminal offence, may afterward be set aside at the option of the parent, is one upon which judicial views are not in harmony. It is not presented under the facts found by the vice-chancellor, and concurred in by us, and any exjoression of view upon the question by this court would, consequently, be obiter. For this reason we neither assent to, nor dissent from, what was said by the learned viee-chaneellór upon this point.

The decree under review will be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Kalisch, Bogert, Yredenburgh, Congdon, White—12.

For reversal—None.


author: Garrison, J.

text:
    Samuel Williams, Jr., respondent, v. Samuel Lowe et ux., appellants.
    [Argued June 26th, 1911.
    Decided November 20th, 1911.]
    1. The general rule that a court of equity will not specifically enforce a construction contract, while it justifies the court in its refusal to do what it cannot be required to do, does not prevent it from so doing as incidental to other relief in exceptional cases.
    2. Whether or not a final decree shall be opened is discretionary in the court of chancery and where an order refusing to open a decree was neither an abuse of such discretion nor the result of mistake or of any imposition practiced on that court, this court will not review such order for the mere purpose of substituting its discretion for that of the court of chancery.
    3. A defendant cannot have a decree moulded into a form suggested by him and then have it reversed because of the form so imparted to it.
    On appeal from a decree and certain decretal orders of the court of chancery advised by Vice-Chancellor Walker.

      Mr. Scott ScammeU, for tbe appellants.

      Mr. William M. Jamieson, for tlie respondent.
   The opinion of the court was delivered by

Garrison, J.

This appeal attacks a final decree of the court of chancery, also an order refusing to open such decree and also an order amending such decree. The bill was filed by Williams against Lowe, who is fclie appellant, fox the specific performance of a contract to convey a house, and the case made by the complainant was as follows: In 1907, Lowe leased to Williams a house and lot on Morgan avenue, in Hamilton township, for four years, with an option of purchase and a covenant to convey free of encumbrance. Williams entered into possession, exercised the option and was making payments of the purchase price in monthly installments when the foreclosure of a mortgage covering the premises brought the transaction to a halt. It was then agreed between Williams and Lowe that the former should purchase in lieu of the Morgan avenue house an unfinished house belonging to the latter on Oregon avenue, to be paid for in weekly installments, Williams to be credited with the payments made on the Morgan avenue house, Lowe to finish the Oregon avenue house and convey it to Williams free of encumbrance when $800 was paid.

Williams moved into this unfinished house and had made payments, amounting with the credits to $615, when he discovered •that Lowe had put a $700 mortgage on the house which was still unfinished. Williams then, stopped his payments and filed the present bill setting out these facts, tendering the balance of the purchase price for the house when completed and praying that Lowe complete the house and convey it to him free of the said mortgage. There was also a prayer for general relief. Lowe not having answered this bill a decree pro confesso was entéred with an order for taking proofs under which was shown what it would cost to complete the house, and such sum being in excess of the unpaid purchase-money, the latter was credited to Lowe and a decree made that he pay the balance, viz., $118.48, and convey the unfinished house free from the mortgage.

This decree was made on August 23d, 1910. On September 21st, 1910, Lowe petitioned the court of chancery to open this decree and let him in to answer, which, after a hearing on an order to show cause, was denied. Lowe then applied to the court to amend the final decree against him by striking out the requirement. for the payment of the balance of the cost of completing the Oregon avenue house on the ground that it was not within the specific prayer of the bill, and was oppressive because the house could be completed by him for less than the unpaid purchase price.

This application of Lowe was granted and the decree ordered to be amended according to the specific prayer of the bill.

From the original final decree and from each of these decretal orders the defendant has appealed, but not from the final decree as ordered to be amended.

Passing over this technical difficulty, we think that the final decree was justified by the facts before the court and that it was as originally framed in effect a decree for specific performance of a contract to convey with an abatement oí the price. The objection that there was no such specific prayer, if well founded, which we do not need to admit, cannot now avail the appellant since that part of the decree was stricken out on his own application. The objection that the decree as amended is one to enforce a construction contract cannot avail the appellant, first, because the agreement is not a construction contract but a contract io convey a house, the completion oí which was an incident and not the object of such contract; second, because the rule invoked, while it justifies the court in refusing to do what it cannot be required to do, does not prevent it from so doing as incidental to other relief in exceptional cases, and ihircl, because the appellant cannot lay as a ground for reversal a feature of the decree made at his own suggestion.

The order refusing to open the decree was neither an abuse of discretion by the court below nor the result of mistake or of any imposition practiced upon it. Assuming that this court will review a discretionary order in these respects, as was done in Day v. Allaire, 31 N. J. Eq. (4 Stew.) 303, it will not do so for the mere purpose of substituting its discretion for that of the court of chancery.

The order amending the final decree will not be reversed at the instance of the appellant since it was the product of his own suggestion. A defendant cannot have a decree moulded into a form suggested by him and their have it reversed because of the form so imparted to it.

The sole merit of the defendant’s application was that the house could be finished by him at an expense less than the unpaid balance of the purchase price; he got the amended decree in order to enable him to do what he said he could do, and wanted to do, and in equity should be permitted to do, and then instead of doing it. he prolongs the litigation at an expense which, if he is paying his lawyer at all in proportion to his services, is greatly in excess of what, on his own showing, it would cost him to complete his contract with the complainant.

The decree and both of the decretal orders are affirmed, with costs.

For affirmance—The Chief-Justice, Garrison, Swayze, Parker, Bergen, Voorhees, Kalisch, Bogert, Vredenburgh, Congdon, White—11.

For reversal—None.


author: SWAYZE, J.

text:
    William S. Van Clief, trustee, complainant-respondent, v. Frank Melville et al., defendants-appellants.
    [Argued December 1st, 1910.
    Reargued June 30th, 1911.
    Decided November 20th, 1911.]
    A corporation in financial straits executed a mortgage on all its property to trustees to secure all creditors who should assent to its terms before a certain date and extend the time of payment of their claims; the mortgage recited that it was given only upon the assent and extension of time by creditors owning seventy-five per cent, of the claims; additional advances of moneys to be made by or through the trustees were also secured by the mortgage as a first lien; tlie trustees were given full discretion and authority to disburse the moneys so advanced; the business of the corporation was to be conducted under their oversight and their expenses were to be a first lien; some creditors did not assent; a receiver was afterward appointed for the corporation, and upon a foreclosure by the trustees, filed an answer setting np the invalidity of tlie mortgage under section 12 of the statute of frauds.—Held, that the discretion reposed in the trustees as to the disbursement of moneys advanced by or through them was so broad as to evince an intent to binder, delay and defraud creditors, and that the mortgage was invalid even as to the advances.

      On appeal of Thomas G-. Haight, receiver, from a decree of the court of chancery advised by Vice-Chancellor Walker.
    The bill in this case was filed to foreclose a mortgage given by the Frank Melville Amusement Company and by Frank Melville and wife to William S. Van Clief, the complainant, and Albin Harry Cortright as trustees. The receiver of the Frank Melville Amusement Company filed an answer setting up that the mortgage was void under the sixty-fourth section of the Corporation act and the twelfth section of the statute of frauds. The facts are as follows:
    In 1907, the amusement company conducted what was apparently a profitable enterprise, but in August of that year was in financial straits, probably because of the fact that the receipts,' while showing a profit over the running expenses, were not sufficient to pay the cost of the plant. Suits were pending and lien claims were filed, including lien claims by Van Clief and by Cortright. These two lien, claims were filed when they were, for the purpose of inducing a more favorable settlement of a large claim then in the hands of an attorney for collection. Negotiations and creditors’ meetings followed, as a result of which the mortgage in suit was given. It bears date October 21st, 1907, a few days after the scheme had been approved at a meeting of creditors, but it was not acknowledged until January 6th, 1908. The delay'seems to have been due to the effort to secure the assent of creditors of the amusement company, in accordance with the provisions of the mortgage. The total amount of claims, as appears by a statement assented to both by the amusement company and by the trustees named in the mortgage, including the complainant, was $72,119.98, but of this amount $15,292 claimed by Cortright himself wras proven fictitious; the valid' claims amount to $56,827.98. Slightly over seventy-five per cent, of that amount assented. The provisions of the mortgage are peculiar. It recites the wdllingness of the mortgagors to give security for their debts “upon said creditors accepting such security, and in consideration thereof giving an extension of time until October 1st, 1908;” conveys all the property of the amusement company and also property used in connection with the enterprise, which in equity belonged to the company, though the title was in Melville; provides that it is given only upon the receipt from creditors owning seventy-five per cent, of the claims of extensions of payment to October 1st and the assent of the said creditors to the terms o£ the mortgage, and that the remaining twenty-five per cent, may share in the benefits by executing and delivering to the mortgagors like extensions apd assents on or before February 6th, 1908, being one month from the date when the mortgage was acknowledged. It provides for additional advances to the extent of $10,000, to be made only through the trustees. The advances are to be applied as the trustees direct; they are given full discretion and authority with regard to all disbursements, and the loans and advances are to be a first lien on the mortgaged premises prior and paramount to the lien of the other claims. The mortgagors are to remain in full possession of their park property, business, franchises and appurtenances, to manage and control the same and receive and control all rents, royalties, earnings, revenues and income thereof and therefrom in the same manner and with the same effect as if the mortgage had not been made, with the right to make such changes and alterations as they may deem best. The trustees are authorized after May 1st, 1908, that is, after the beginning of the next season for such amusements as the company conducted, to appoint a bookkeeper; the books are to be at all times open to inspection and audit by the trustees. There are provisions for the! advancement by the trustees of the expenses necessary to keep the enterprise going, which are to be a first lien upon the mortgaged property.

      Mr. Elmer W. Demaresi (Messrs. Roberson &. Demaresi, on the brief), for the complainant-respondent.

      Mr. Richard Boardinan (Messrs. Oondict, Oondicl &■ Board-man, Mr. Robert 8. Hudspeth and Mr. George II. Peirce, on the brief), for the appellants.
   The opinion of the court was delivered by

SWAYZE, J.

The learned vice-chancellor held that the mortgage was invalid as far as it attempted to secure the then existing debts of the amusement company, but that, although the company was insolvent, the mortgage was valid security for the subsequent advances, notwithstanding section 64 of the Corporation act, for the reason that the trustees, particularly Van Clief, who advanced the money, had no notice of the insolvency. He did not consider whether or not the mortgage was invalid under section 12 of our statute of frauds. If we thought it necessary to consider the effect of section 64 of the Corporation act, we should have some difficulty in finding, as the vice-chancellor did, from the facts in the case, that Van Clief was without notice of the insolvency; but it is unnecessary to pass upon that question, for the reason that the case can be disposed of under the twelfth section of the statute of frauds. The above recital of facts suffices to show that as to antecedent creditors the case comes within the rule of Owen v. Arvis, 26 N. J. Law (2 Dutch.) 22, and National Bank of the Metropolis v. Sprague, 21 N. J. Eq. (6 C. E. Gr.) 530. Notwithstanding what Vice-Chancellor Pitney said in Sipley v. Wass, 49 N. J. Eq. (4 Dick.) 463 (at p. 473). the authority of these cases has not been at all shaken by the later decisions of Muchmore v. Budd, 53 N. J. Law (24 Vr.) 369, and Clinton Bank v. Cummins, 39 N. J. Eq. (12 Stew.) 577. Muchmore v. Budd turned upon the question whether the bill of sale amounted to an assignment for the benefit of creditors within the meaning of our statute relating to such assignments, and it was held it did not. If not, the case was an ordinary one of preference of creditors. In neither that case nor in Clinton Bank v. Cummins was the question of fraudulent intent involved. In the present case, it was clearly the intent of the parties to the mortgage that creditors who did not assent should he deprived of any right to share in the security, which covered all the property of the amusement company, so that the effect was that creditors unwilling to assent to the terms proposed -by the debtors were shut out. This was exactly the scheme condemned in National Bank of the Metropolis v. Sprague. The present case differs in that the mortgage secures future advances, and was sustained only to that extent. The reargument was directed upon the point whether a. mortgage had in part because in contravention of the statute of frauds could be sustained in part by a court of equity in view of the plain language of the statute declaring that “a conveyance contrived in fraud, covin or collusion with intent to hinder, delay or defraud creditors of their lawful actions should be utterly void and of no effect.” Upon further consideration, we think we need not pass on that question. The mortgage shows upon its face that the provisions as to future advances were contrived to defraud creditors of their lawful actions. It provides for advances not exceeding $10,000, to be made in installments as the same may be approved by the trustees from time to time for the maintenance of the business, for inn and tavern or restaurant and beer saloon licenses, rent, water taxes and other taxes, wages or arrears thereof, stock in trade, insurance of buildings and the general carrying on and safeguarding of the properties and business between its date and the ensuing 1st of June. . The trustees agree to advance for such purposes at least $5,000 in such installments and at such times as to them and Melville shall seem proper; any sums advanced by them or other persons are to be applied as they direct, and they have full discretion and authority with regard to all such disbursements. These provisions are so broad as to authorize the trustees to advance money and apply it to the payment of pre-existing debts at their discretion. The object of the provision seems, from the testimony, to have been to permit the trustees to pay small creditors who were pressing for payment and annoying the management of the enterprise. Payments of this kind were made. Such a provision, while it may have been at the time intended only for the benefit of small creditors, was susceptible of being used for the benefit of Van Clief himself, and the effect of vesting such discretion in the trustees was to make it possible for them to substitute the first lien which the mortgage gave to the advances, for the inferior lien that favored creditors might otherwise have, merely by using the monejr to pay those creditors. A better scheme to hinder, delay and defraud creditors of their lawful actions cannot readily be devised. The assenting creditors no doubt thought that the trustees intended that the advances should be used for the purpose of carrying the enterprise through to another season for outdoor amusements, with the hope that it would prove profitable enough to enable the corporation to pay its debts, but the discretion reposed in the trustees was much broader than that. Under Much-more v. Budd this scheme cannot be called a general assignment, but, in substance, it is an arrangement by which the corporation appoints its own receivers, authorizes them to continue the business and create a first lien upon the property prior to the claims of existing creditors and use the proceeds of the new loans for such purpose as they deem best. As to non-assenting creditors such a scheme is illegal, and is within the reason that led the court to condemn the mortgage in National Bank of the Metropolis v. Sprague.

It is urged that the state of the record prevents creditors from profiting by this appeal because a decree pro confesso has been taken against them in the court of chancery. It is conceded that there were creditors who did not assent to this scheme; the receiver represents them; he raised the issues by proper pleading in the court of chancery, and is entitled to press the objections to the mortgage in this court. The fact that some of the creditors, whose counsel signed the brief in behalf of the appellant, assented to the arrangement, is of no moment. The receiver is tile appellant, representing the rights of non-assenting creditors. The question of equities that may have arisen by reason of the assent of-many creditors to the scheme is not now before us. That will naturally arise in the court of chancery upon the distribution of the fund now in the hands of the receiver. ■

For the reasons stated, the decree is reversed and the record remitted to the court of chancery for further proceedings in accordance with this opinion. The decree in favor of the Commonwealth Eoofing Company is affirmed for the reasons stated by the vice-chancellor.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen,’ Yoori-iees, Kalisci-i, Bogert, Vredenburgii, Congdon, White—12.