text:
    Marion Casey v. Thomas F. Casey.
    Evidence of extreme cruelty held insufficient in a wife’s suit for divorce a mensa el thoro on that ground, on application for alimony pendente Ute and counsel fee.

      Mr. Frank T7. Heilenday, for the petitioner.

      Mr. Joseph F. Farmer, for the defendant.
   Griffin, V. C.

The petitioner having instituted suit for divorce a mensa ei thoro, on the ground of extreme cruelty, fded her petition for alimony pendente lite and counsel fees. The ex pan-te affidavits filed being unsatisfactory and conflicting, a day was set when the parties might appear in open court with their witnesses. The proofs thus taken establish the fact that the parties were married July 1st, 1906, and have one child, a daughter, now seven years of age. The wife left the husband several times before the one in question on account of his habits. The testimony was taken covering a period of about seven months, beginning with January 1st, 1914, and terminating on July 21st, 1914, with leave to the parties to extend the inquiry prior to January 1st, 1914, if the evidence adduced rendered such inquiry necessary.

The testimony indicates that the defendant has been for a number of years past, and now is, steadily employed in a position of some responsibilitj, but, unfortunately, he has been addicted to more than the ordinary use of intoxicating liquors, and habitually came home late at night, if not drunk, in a more or less maudlin condition. Sometimes he brought with him, as late as eleven o’clock at night, some of his boon companions, who were probably under the influence of liquor, and the wife, very properly, ejected them from the house. Apart from this drink habit, little has been shown in the case to condemn him as a dangerous or heartless man. ITe has the appearance of a kindly man. In his testimony he speaks of his wife as a very good woman and a good housekeeper. During the seven months preceding the desertion she says that he seized her by the throat and struck her twice, but she did not leave him on that account. He denies this story. She left him on July 21st, 1914, because of a scene which occurred that evening. He had been upon an outing; he came home about seven o’clock, and asked her to get something to eat; she sent her daughter to get some chops, -and she says she fried them; then she said:

“While I was frying it my little girl came in, and she asked if she could go out. I said, ‘Yesso she was running out of the door, and he said, ‘Come back here!’ and his eyes were starting right out of his head, and she ran out and he ran through the hall to get her, and I said, ‘Marion, come back here,’ and she came back, and I said, ‘Just take a look at your father.’ I said, ‘He is one fine bum.’ I said, ‘You will remember him when you grow older;’ so he picked up the sugar bowl and went to throw it at me. He said, ‘Don’t you say I am a bum, if you call me a bum I will kill you.’ He said, ‘The next son of a b-that calls me a bum is a dead one.’ He said, T am a bum for the last time,’ and he hammered with the sugar bowl and the salt cellar. I told Marion, I said, ‘Now you get out of here as soon as you can go.’ ”

Then she says he said to her:

“ ‘You get out of here,’ be said, ‘get out now.’ So I took my hat and got, and I said, ‘Very well, I am just glad that you put me out,’ and I took my little girl and went up to my neighbor’s house.”

The husband says that he never struck the child. He corroborates this scene, in a measure, spoken of by the wife, and says that he did pound on the table with the sugar bowl and the salt cellar.

The bouse where they resided was a two-family house, the petitioner and her husband living on the lower floor, her friend, Mrs. McDonald living on the upper floor. She immediately after this scene left her apartments and went to Mrs. McDonald’s, where she has remained over since.

On this state of facts she charges her husband with extreme cruelty.

In the ease of Glose v. Close, Mr. Justice Yan Svckel, speaking for the court of errors and appeals (25 N. J. Eq. 526), said: “It is very difficult to give any affirmative definition which will express, with entire accuracy, the meaning of extreme cruelty in our statute concerning divorce. The courts, both in England and in this country, have refrained from lajdng down any inflexible rule which should serve as a standard by which to adjudge all cases. The weight, of authority is, that the injury actually inflicted or reasonably apprehended, must be bodily harm, in distinction from mere mental suffering. * * * Slight abuse of the person, accompanied by opprobrious language, which would imperil the health of a refined and delicate wife, might be endured with comparative unconcern by one of a less sensitive nature.” These rules seem to have stood the test of judicial criticism down to the present time.

After seeing the parties, and hearing them testify, I am satisfied that neither fear of bodily harm nor possible impairment of health induced her leaving him. She is a strong, vigorous, strong-willed, decent young woman, showing not the slightest indications of ill-treatment. She is likewise not supersensitive, nor of such delicacy that the treatment received by her from1 her husband would impair her health. She, undoubtedly, had some mental suffering on account of her husband’s habits. She is rather quick-tempered, and my notion is that in her dealings with her husabnd her display of temper tended to bring on the disputes between them quite as much as his intemperance. To say the least, her conduct was provocative, and possibly might have had a great deal to do with his excessive indulgence; but considering what she had to endure, it would be hardly fair to criticise her too severely. Differing from his wife, he appears to be a man without much self-control — one who might easily be led astray by his companions.

To my mind, when she left him on July 21st, she did not fear him. Her leaving was due to the fact that she despised, rather than feared, him. I am, therefore, of the opinion that neither at nor before the time that the petitioner left her husband was his conduct such as to justify the inference that if they continued to live together she would be in danger of bodily harm at his hands, or that her health would be impaired.

Binding no legal justification for the wife living apart from her husband, under the rules laid down hi. Close v. Close, supra, I will advise an order dismissing the present application.


source: Caselaw Access Project

author: Walker, Ordinary.

license: Public Domain

text:
    In the matter of S., one of the proctors of the prerogative court.
    [Decided August 21st, 1914.]
    1. S. presented a petition for the appointment of an administrator ad prosequendum, on which an order was entered appointing the clerk in chancery as such administrator, the petition and order being delivered to S. for filing. He having failed to file the same until after he learned that an administratrix had been appointed for the decedent in the orphans court, and that an order of revival would not he made until the order of the ordinary appointing the administrator ad prosequendum in the prerogative court had been vacated, S. stated that he had destroyed the petition and order without filing them. — Held, that the order could only be nullified by vacation by the court granting it, and its destruction constituted a contempt.
    2. A judge may destroy an order which he has signed, before it is filed, with the consent of the party obtaining it, treating it as inchoate and not consummate until made a matter of record, but an officer of the court has no right to destroy an order which he has obtained, out of the presence of the court and without its consent, though it had not been filed.
    ' 3. Where a proctor, having obtained an order from the court, sought to vacate it by destroying the petition and order before it had been filed, his lack of bad motive or intent to commit a contempt in so doing was sufficient to mitigate, but not to excuse, the offence.

      In re contempt of court.
   Walker, Ordinary.

S., one of the proctors of the prerogative court, preferred a> petition to the ordinary, on behalf of himself as receiver in a certain cause depending in the court of chancery, praying that an administrator ad prosequendum might he appointed to represent the estate of a deceased defendant in that suit in that court; and thereupon an order was made that letters of administration he granted by the register of this court to the clerk in chancery for tire usual limited purposes. The reason assigned for asking for the appointment was that no application had been made for letters upon the estate of the decedent by anyone entitled thereto.

After signing the order appointing the clerk in chancery as administrator ad prosequendum, the ordinary handed the petition and order therefor to the proctor, S., who was the petitioner, for filing. Some, time afterward S., the proctor, as receiver in the chancery cause, applied to the chancellor for the revival of that suit against the administratrix of the deceased defendant appointed by the orphans court, and for whose estate, as already mentioned, the clerk in chancery had been appointed administrator ad prosequendum by the ordinary. Upon being informed by the ordinary that before the revival of the suit in chancery would be ordered against the administratrix appointed by the orphans court, the order of the ordinary appointing the administrator ad~ prosequendum in the prerogative court would have to be vacated, the proctor stated that he had destroyed the petition and order. "Whereupon the ordinary charged the proctor with contempt of court for his having, without authority, failed to file, and for having destroyed a petition preferred in the prerogative court and an order made thereon by the ordinary.

The proctors excuse for his conduct is, that after the order appointing the administrator ad prosequendum was made in the prerogative court, he learned that an administratrix of the estate of the deceased had been appointed in the orphans court, and believing that she was entitled to defend the suit for the estate of the deceased in preference to the administrator formally appointed, and not having filed the order and petition in the prerogative court, he thought he might lawfully destroy them, and thus be saved the trouble of taking proceedings to vacate and annul the appointment of the administrator end prosequendum. The latter proved a vain hope, because the ordinary compelled the proctor to immediately file a petition suggesting the facts, and ordered office copies of the petition and order appointing the administrator ad prosequendum to be filed in the prerogative court, and then made an order revoking the appointment of the clerk in chancery as administrator ad prosequendum.

As the destruction of a deed does not divest the title by it conveyed, so likewise the destruqtion of an order of a court does not operate to vacate it or destroy its effect. Hence, the order that the proceedings in the prerogative court be established by the filing of office copies, and revocation of the order made in the regular way.

That a judge may destroy an order which he has signed, before it is filed, with the consent of the party obtaining it, and more especially upon his request, treating it as inchoate and not consummate until made a matter of record, I have no doubt; but that an officer of the court has any right to do such a thing out of the presence of the court and without the consent or request of the court, even though it is not filed, T deny. Only the court that makes an order can unmake it, either formally or informally. That an officer of the court can be guilty of such a thing and see no harm in it, as in the case before me, passes my comprehension.

S., the proctor, when charged with contempt, agreed to submit the matter on the facts above stated, and did not require arraignment on formal charges. His only defence is a disclaimer of intentional wrong-doing.'

As I said in the matter of P., a solicitor of the court of chancery (83 N. J. Eq. 390) :

“This, as a rule, is no excuse, especially where the facts constituting the contempt are admitted, or where a contempt is clearly apparent from the circumstances surrounding the commission of the act. 9 Cyc. 25. Disavowal of any intention to commit a contempt may, however', extenuate or even purge the contempt. Ibid. 26.”

That the destruction of a petition preferred to a court, and an order made thereon, is at least a contempt of that court goes without saying, and needs not the citation of authorities to support the proposition. Lack of bad motive mitigates, but cannot wholly excuse, the transgression. ■

Upon reflection. I am convinced that my duty requires me to adjudge that S., the proctor, has been guilty of a contempt of the prerogative court. The matter of punishment will be reserved for further consideration.


author: Lewis, . Vice-Ordtjstakt.

text:
    In the matter of the estate of Adam Fritz, deceased.
    [Decided September 15th, 1914.]
    1, Udder section 97 of the Orphans Court act (Oomp. Stat. p. 881fl), upon the application of a judgment creditor to the orphans court to order a sale of the decedent’s real estate to pay the judgment, the judgment creditor cannot he delayed in her right to the order by showing that she is the surviving executrix of the will of another testator whose estate is indebted to the estate of the debtor’s testator in a sum more than sufficient to satisfy said judgment, and that if this indebtedness of the judgment debtor’s testator were paid to her executrix, she would then have in hand sufficient personal property to pay such judgment.

      2. The circumstances that both parties are officials of the court, and represent different estates and are both subject to the orders of the court, and that it is in the -interest of both estates that litigation should be avoided and expenses thereby saved, did not make it the duty and the right of the orphans court to grant an order against the judgment creditor as executrix of the estate of one of the decedents to proceed and settle the same, and to sell the real estate and thereby avoid further litigation.
    3. Our statutes confer no authority on the orphans court to try disputed claims except in cases of insolvent estates.
    On appeal from order of orphans court directing the sale of lands by the executrix of Adam Fritz, deceased.

      Mr. Michael Dunn, for the appellant. .

      Mr. Wayne Dumont, for the respondent.
   Lewis, . Vice-Ordtjstakt.

The appellant, Catherine Eritz, widow and devisee of Adam Eritz, deceased, and sole executrix under his last will, appeals from an order of the orphans court of Passaic county, made March 14th, 1913, requiring the executrix to sell certain real estate to pay the judgment of the petitioners therein. The petition sets forth that on June 23d, 1910, Minnie E. Dodd, to and for the use of Barbara Thomas, recovered a judgment against the executrix of Adam Fritz, in the Passaic county circuit court, t for the sum of $753.92; that execution was issued thereon and returned wholly unsatisfied for want of personal estate to be levied on and sold; that Adam Fritz died seized of certain real estate therein described; that petitioner had requested the executrix of Adam Fritz to take proceedings to obtain a sale of the whole or a part thereof for the payment- of said judgment, in accordance with the Orphans Court act; and that she has refused to comply with such request for the space of at least one month after being so required, and the orphans court was asked to make an order for the sale of said lands, or a part thereof, for the payment of said judgment, under section 97 of the Orphans Court act.

The answer of Catherine Fritz, executrix as aforesaid, practically eonfess.es the facts set forth in said petition, and seeks to avoid tlie relief which would necessarily follow thereon, upon the following grounds:

That said Barbara Thomas, one of the- petitioners, and owner of the said judgment, for all practical purposes, is the surviving executrix of the last will and testament of Peter Fritz, deceased, of whom the said Adam Eritz was a son, said Adana Eritz in his lifetime being also an executor of the said last will and testament of Peter Eritz, deceased; that the estate of Peter Eritz, deceased, is indebted to the estate of Adam Eritz, and that if this indebtedness were paid to the executrix of Adam Eritz she would then have in hand sufficient personal property with which to pay the judgment of Barbara Thomas; and upon these facts the appellant, Catherine Eritz, not only resists the granting of the relief prayed for in the petition, but, by way of cross-petition, she attacks the answer and prays for affirmative relief, by asking the court to make an order directing the said Barbara Thomas to file an account of her administration of the estate of Peter Eritz, and to sell the real estate of the said Peter Eritz, for the purpose of paying to the executrix of Adam Eritz, the appellant, the money so due on said estate.

To this answer and cross-petition the respondents replied, that by virtue of a certain writing under the hand and seal of said Barbara Thomas and said Adana Eritz, her brother and co-executor, made during his lifetime, said money so due from the •estate of Peter Eritz to the estate of Adam Eritz is not to he payable until the death of an invalid sister of Barbara Fritz.

The jurisdiction of the orphans court in this case arises—

(1) From the obtaining of the judgment against the executrix, Catherine Fritz.

(2) The issuing of execution which remains unsatisfied “for want of personal estate to be levied on and sold.”

(3) That there is real estate. ■

(4) The neglect of the executrix, after notice, to sell said lands.

The testimony taken before me shows that the estate of Peter Fritz, deceased, of which Barbara Thomas is the surviving executrix, is indebted to the estate of Adam Fritz, deceased, in the sum of $1,859.99 on a promissory note, dated October 16th, 1908, payable thirty days after date, which was given by the executors for moneys loaned and advanced by Adam Eritz to> the estate of Peter Eritz, and which was used to buy out the dower right of the widow of Peter Eritz, and also to pay taxes and insurance and to make necessary repairs to maintain and keep the buildings on the property of Peter Eritz in a tenantable condition, to prevent the estate from waste, and the money so advanced is evidenced by this note; that under the will of Peter Eritz the whole estate is devised to the executors therein named, to be by them distributed as therein mentioned; that it also gave the executors full power to sell and convey the real estate; that the said Adam Eritz was also a devisee and legatee under said will; that the effect of the said will of Peter Efitz, in devising the property to the executors for distribution, was practically to convert his property so that it might be treated as if it were personal estate; that the said Barbara Thomas was requested, as surviving executrix of the said Peter Eritz, deceased, to file her account and proceed to settle the estate and raise the necessary moneys to pay this note of $1,859.99 due to the estate of Adam Eritz, and to pay to her the amount of the interest of Adam Eritz in the estate of Peter Eritz, as would be shown in the final settlement, thereby putting into the hands of Catherine Eritz, executrix of Adam Eritz, the money due to the estate of Adam Eritz from the estate of Peter Eritz to enable her to liquidate the said judgment.

It is xhe contention of the appellant that both parties, being officials of the court, and representing different estates, and both being subject to the orders of the court, and it being in the interest of both estates that litigation should be avoided and expenses thereby saved, that it was the duty and the right of the orphans court to grant an order against Barbara Thomas as executrix of Peter Eritz, to proceed and settle the same, and to sell the real estate and thereby avoid further litigation.

It will be noted that the judgment obtained by Barbara Thomas against the estate of her co-executor was obtained by her in her individual capacity.

“Our statutes confer no authority on the orphans court to try disputed claims, except in the case of insolvent estates.” Middleton v. Middleton, 35 N. J. Eq. 115, and cases there cited.

“It (the orphans court) being a court created by statute, and invested with special powers and jurisdiction in derogation of the powers of the courts established by the constitution, it must be restrained in the exercise of those powers and jurisdiction by the words of the statute.” Ludlow v. Ludlow, 4 N. J. Law 189; Tenbrook v. McColm, 10 N. J. Law 333; Bray v. Neill, 21 N. J. Eq. 343.

“dioses in action are subject to execution only when made so by statute.” 17 Cyc. 971.

Our statute concerning execution does not malee dioses in action the subject of levy and sale, except in certain specified cases, amongst which promissory notes are not included.

I am, therefore, well satisfied that there was no error in the decree of the court below, so far as the promissory note was concerned.

In regard to the distributive share of the estate of Peter Eritz, to which Adam Eritz would be entitled, I fail to see any reason for delaying the collection of the judgment. A judgment creditor can sell personalty or realty at his option on execution. He is the one the law is particularly interested in seeing made whole. However, when the debtor dies and his estate is sued his personalty becomes liable, first of all, and his realty only secondarily. The law still primarily looks after the judgment creditor. The protection of the heir is only a secondary matter. The heir may give bond to prevent the sale of the real estate if he wishes to do so and thus prevent a forced sale of the realty. Therefore, I must assume that as the Orphans Court act clearly states that if there is not sufficient personalty to pay the judgment, the realty (or so much thereof as may be necessary) shall be sold, that must be the order, as the orphans court is only a statutory court.

The decree shall be affirmed.


author: Backes, Vice-Ordi nary.

text:
    In the matter of the estate of David J. Carney, deceased.
    [Submitted April 21st, 1914.
    Decided July 14th, 1914.]
    Under Orphans Court act (P. L. 1898 p. 724 § 27), providing that administration on an intestate’s estate must be granted to the next of kin, the court has no discretion but to grant the application of one who is next of kin to the intestate, unless personally disqualified, and the fact that the estate is insolvent, and that the applicant, a brother, lacks the necessary business qualifications to settle it in order to get the best financial results, and that many years before he had been intemperate, is insufiieient to justify the appointment of another not of kin to the deceased. .
    On appeal from the Somerset orphans court.

      Mr. William S. Angleman, for the appellant.

      Mr. William A. Godclimgion, for the respondent.
   Backes, Vice-Ordi nary.

David J. Carney died intestate, leaving a brother and a nephew and niece as his next of kin. The brother applied for loiters of administration, which the probate court denied and granted them to Jacob Shurtz, a creditor of the estate. The brother appealed. It was represented to the court below, by counsel, that the estate was insolvent; that the appellant lacked the necessary business qualifications to settle the estate, in order to get the best financial results, and that years ago the appellant was of intemperate habits. These reasons cannot be successfully urged to override the statute, which directs that administration of an intestate must be granted to the next of kin. Orphans Qourt act § 27j P. L. 1898t p. '724. The court must obey the statute, unless the applicant is personally disqualified. Donahay v. Hall, 45 N. J. Eq. 720; Sayre v. Sayre, 48 N. J. Eq. 267; Cramer v. Sharp, 49 N. J. Eq. 558; Degnan’s Case, 75 N. J. Eq. 197. The order appealed from will be reversed, with costs.

-An administrator pendente Hie was appointed in this case, and an order was made directing Mm to sell at public or private sale tbe personal effects of the intestate, which consist of a newspaper and a printing plant. That he may not be hampered, it is suggested that the signing of an order of reversal be deferred for a reasonable length of time.


author: Baches, Vxol-Ohdtnaey.

text:
    In the matter of the estate of John M. Alpaugh, deceased, on appeal by Laura Alpaugh, from order appointing an administrator of the estate.
    [Submitted June 30th, 1914.
    Decided July 13th, 1914.]
    Orphans Court act (P. L. 1808 p. 724 § 37) provides that if any person die intestate, or if the executor renounces, then administration shall be granted to the widow or next of kin, or to some of them, otherwise to such other person as will accept the same. — Held, that, where decedent died leaving a widow and two minor children, and the widow renounced her right to administration, decedent’s mother, though of kin, was not “next of kin,” which means one entitled to distribution, and she was not entitled to administration as against a stranger nominated by the widow.
    On appeal from the Hunterdon orphans court.

      Mr. H. BurdeUi Herr, for the appellant.

      Mr. Willwrd G. Parleer, for the respondent.
   Baches, Vxol-Ohdtnaey.

John M. Alpaugh died intestate, leaving a widow and two minor children. The widow renounced her right to administer, and upen her request letters were granted to John Young, a stranger. The mother of the deceased, whose application for a grant was denied, now appeals, and by agreement of counsel a single question is presented for determination, viz., whether the mother was entitled to administer. Paragraph 27 of the Orphans Court act (P. L. 1898 p. 715) provides that—

“If any person die intestate, or if the executor named in any testament renounce the executorship, or neglect, for the space of forty days after the death of the testator, to prove such testament, then administration of the goods, chattels and credits of such intestate or of such testator with the testament annexed, shall be committed or granted to the widow or next of kin of such intestate or testator, or to some of them, if they or any of them will accept the same; and if none of them will accept thereof, then to such other proper person or persons as will accept the same.”

The resignation of the widow, and the disability of the children, the next of kin, rendered entirely inapplicable the mandate of the statute and left the probate court free, in the exercise of a sound discretion, to appoint any proper person to administer the estate. While the mother was of kin, she was not the next of kin of the deceased, within the meaning of the statute— i. e., next of kin entitled to distribution. The imperative com-' mand of this legislation is limited and restricted in its operations to a class to which the appellant does not belong. It does not require the grant to be made to the nearest of kin qualified to act. Woodruff v. Snoover, 45 Atl. Rep. 980.

The Degnan Case, 75 N. J. Eq. 197, is cited by the counsel of the appellant as holding an opposite view. I do not so understand it. In that case, the husband of the deceased, who was entitled to her ¡personal property, failed to apply for letters. After his death, his executor and the deceased wife’s brother, respectively, petitioned to be appointed. Chancellor Walker directed the orphans court to issue letters to the brother because of his statutory right. He was the next of kin, in fact, within the definition of the statute. The present appellant occupies no such position.

That the probate court’s discretion was judiciously exercised is not brought into question. The court’s appointee was se-, lected by the widow and the natural guardian of the next of kin. Wms. Ex. *363; Cramer v. Sharp, 49 N. J. Eq. 558.

The decree under review will be affirmed, with costs.


author: Baoices, Vice-Ordtuary.

text:
    In the matter of the estate of Samuel Dreier, deceased.
    [Argued October 6th, 1914.
    Decided October 15th, 1914.]
    1. Where, on an accounting by trustees, they furnish vouchers for each item excepted to, swore that they were contracted by them and that the expenditures were necessary in preserving the property, and also produced some of the parties with whom they contracted to do the work, who gave corroborating testimony — Held, that more was not required by the trustees to entitle them to these allowances, and that additional direct proof was not required to show that the work which was done and materials which were furnished were reasonably worth what was paid for them.
    2. In the absence of fraud involving the disputed items, and upon proof that the work was done, that it was necessary, and that the price paid was according to the regular course of trade, the presumption of fairness of value arises.
    3. It was the duty of the trustees to have prepared their own account and a charge for an item paid to counsel for “services drawing first account, presenting same, and appearance on return day,” should be disallowed.
    4. An allowance of a counsel fee to the trustees is proper, but no allowance to the exceptant, who is defeated, should be made.
    On appeal from the Union county orphans court.

      Mr. William R. Wilson, for the appellant.

      Mr. William Nev’corn, for the respondent.
   Baoices, Vice-Ordtuary.

The testator devised the residue of his estate to his two sons, 'in trust, to divide the income in monthly or quarterly payments, for a period of fifteen years, equally among his four children and the issue of a deceased daughter, and at tire expiration of that time to divide the principal in five equal parts; one part to go to each child or its issue. The trustees, who were also executors under the will, filed their first trustees’ account, which was in all things allowed; the orphans court overruling excejitions, sixty-two in number, filed by one of the beneficiaries, who now appeals.

Exceptions numbers 3 to 58, respectively, challenge as many specific items of discharge, of which fifty-two are for moneys laid out by the trustees for repairs and improvements to real estate committed to their care. That these outlays were judiciously made in the conservation of the estate is satisfactorily shown by the proofs, and the exceptions were properly overruled. The trustees furnished vouchers for each item.excepted to, swore that they were contracted by them, and that the expenditures were necessaiy in preserving the property. They also produced some of the parties with whom they contracted to do the work, who gave corroborating testimony. The counsel for the exceptant, in effect, contends that more was required of the trustees to entitle them to these allowances, and that additional direct proof should have been furnished to show that the work which was done, and materials which were furnished, were reasonably worth what was paid for them. I do not think that any such burden is placed upon accountants. In the absence of fraud involving the disputed items, and upon proof that the work was done, that it was necessary, and that the price paid was according to the regular course of trade, the presumption of fairness of value arises. The fact that the trustees are two of the beneficiaries of the estate, adds to the presumption, because of the natural tendency to protect their own inheritance.

Of the remaining exceptions, of 3 to 58, inclusive, five relate to legal services in connection with litigation, to which the trustees were subjected. The services of counsel and expert witnesses were necessary to successfully prosecute and defend the suits, and the charges therefor were reasonable.

In disposing of the balance of the exceptions which charge that the rental values of the properties decreased by reason of the trustees’ mismanagement: and because of their carelessness tire cost of repairs on the properties equaled fifty per cent, of the rents collected, and that these repairs, were not always necessary; and that owing to the nfegligence of the trustees, legal expenses were contracted, which were not necessary; that the trustees failed to account for silverware, diamonds, jewelry, a certificate of stock in a land company, and rent of a barn, all that need be said is that they are not supported by the proofs, except in a single instance of an item of $15 paid to counsel for “services drawing first account, presenting same, and appearance on return day.” It was the duty of the trustees to have prepared their own accpunt, and this charge should have been disallowed. In re Wiley’s Estate, 65 Atl. Rep. 212.

Appeal is also taken from so much of the decree as allows a counsel fee of $200 to the trustees, and $50 to the exceptant. The amounts are not assailed. The allowance of counsel fee to the trustees was proper. Munn v. Munn, 20 N. J. Eq. 472. The appeal from the allowance to the exceptant is sustained. The exceptant was defeated in her efforts in the court below, and no allowance for counsel fee should have been made to her. Smith v. McDonald, 69 N. J. Eq. 765; 71 N. J. Eq. 261.

The orphans court imposed the cost of the transcript of the evidence filed with the surrogate, and the witness fees of the trustees, upon the exceptant, from which an appeal is also taken. The obviously litigious temperament of the exceptant was in a large measure responsible for the voluminous record of some four hundred pages, and the judgment of the lower court in imposing upon her these disbursements will not be disturbed. Comp. Stat. p. 3884 § 196.

l’n their account the truslees charge themselves with $302.92 recovered on a judgment against the exceptant, and pray allowance for the same as against the exceptant’s proportionate share of the funds in their hands. No exception to this allowance was filed in the court below, and had there been, it could not have been upheld. The sum, and more, was awarded to the trustees by the solemn judgment of a legal tribunal, and is not open to collateral attack.

The decree appealed from will be reversed, and the record remitted. No costs.


author: G-ummere, Chief-Justice.

text:
    John A. McFadden, guardian, &c., appellant, v. Florence E. Palmer et ux. et al., respondents.
    [Argued June 18th, 1914.
    Decided November 16th, 1914.]
    The guardian of an infant loaned $3,500 of moneys belonging to his ward, and received from the borrower a bond and mortgage as security for its repayment, with lawful interest. From the amount of the loan, however, and with the consent of the borrower, he retained $275 for his “services in securing the loan,” and appropriated this sum to his personal use. — Held, that the retention of these moneys by him constituted usury; held, further, that such usury could be set up as a defence in a suit for the foreclosure of the mortgage.

      On appeal from a decree of the court of chancery advised by Advisory Master William J. Magie.

      Mr. John A. McFadden, pro se, and Mr. Halsey M. Barrett, for the appellant.

      Mr. Sidney W. Bldridge and Mr. Samuel Koestler, for the respondents.
   The opinion of the court was delivered by

G-ummere, Chief-Justice.

The bill in this case was filed to foreclose a mortgage for $3,500 given by the defendants Florence E. Palmer and Niblo A., her husband, to the complainant as guardian of Marie E. McFadden, an infant. The answer of the defendants sets up usury in the mortgage to the extent of $275. The decree appealed from adjudges the mortgage usurious to this extent.

It appears from the undisputed proofs in the case that the defendants Mrs. Palmer and her husband applied to the complainant, who is an attorney-at-law as well as the guardian of Marie E. McFadden, to secure a loan of $3,500 for them upon a house and lot in the city of Elizabeth; that the complainant, after having seen the property, promised to make the loan out of funds in his hands as guardian of his infant ward, provided the defendants would pay him $275 for his services in securing the loan and his expenses in connection therewith, and thereupon took from them the following agreement, in writing:

“Elizabeth, N. J., March G, 1911.
“For services in securing a loan of $3,500 to be secured by bond and first mortgage for one year with interest at five per cent., covering-premises No. S41-S43% Madison avenue, southeast corner of Madison avenue and Fanny street, Elizabeth, N. J., we agree to pay to John A. McFadden $275 besides actual expenses. (Signed) Florence E. Palmer, Niblo A. Palmer;”

that five daj^s later he received from them the mortgage in suit, securing the payment of a bond for $3,500; that out of the moneys agreed to be loaned he paid certain prior encumbrances, retained a sum sufficient to pay the expenses which he had ineurred in connection with the making of the loan (search fees, fees for cancellation of mortgages, &c.), deducted $275 for his services, and paid over the balance to Mrs. Palmer.

It is the retention of this $275 which it is claimed constitutes usury.

In the case of O’Neill v. Cleveland, 30 N. J. Eq. 273, the defendants made to the executors of one Joseph Cleveland, deceased, a bond and mortgage to secure the payment of $2,225. It appeared that the executor, who had acted for the estate in making thé loan, took an agreement from the defendants by the terms of which he was to receive a bonus of fourteen per cent, upon the amount loaned by the estate, and that this bonus was paid to him out of the moneys so loaned. Upon the foreclosure of the mortgage the defendants claimed that the acceptance of this fourteen per cent, bonus constituted usury. It was urged against the contention that the receipt of the bonus by the executor did not constitute usury, because it was paid to him, not in his official capacity as the representative of the estate of the decedent, but as a private individual, for his own personal use and benefit, for commissions due him in securing the loan; the argument being that there could be no usury which could affect the estate, unless he was acting for the estate when he took the bonus. This court held that the transaction was usurious.; declaring that it could make no difference that the lender in the first place paid over the full amount to the borrower, and then received back, by another title or description, the agreed bonus. Counsel for the appellant attempts to distinguish the cited case by pointing out that what the executor received was a bonus, pure and simple, and not a payment for services rendered, while in the case now before us the $275 was retained, as he says, for the services of the complainant as attorney “in procuring the loan, making an abstract of the title of the propertjr, paying off encumbrances and other work incidental thereto.” But this attempt overlooks the written agreement of the parties, which declares that the paj'ment of $275 shall be made, not, in part, for making an abstract- of title of the premises to be mortgaged, or for services in paying off prior encumbrances, and the like, but for the single service therein specified, viz., “securing a loan of $3,500” for Mrs. Palmer and her husband; and it is this written contract which determines the consideration for the payment of this money. We do not doubt that Mr. McPadden could have made an agreement with the Palmers for compensation for such services as those specified by counsel which would have been free from any taint of usury; but that is not what he did. He took from them an agreement to pay him this money for securing them a loan from the estate of his ward, an estate of which he was the trustee; in other words, he took a bonus to himself personally for making a loan as the representative of ah estate of which he had the custody. This is exactly what was done by the executor in the cited case, and if we follow it we must declare the transaction usurious.

It is said that the rule laid down in O'Neill v. Cleveland is unreasonably harsh, in that it makes innocent cestuis que trustent suffer loss for the unlawful act of their trustees; and that it ought to be repudiated by us. But it does not follow that the application of the rule entails loss upon the cestui qwe tmast, for if Che trustee has unlawfully wasted the estate which has come into his hands, he must answer for the loss out of his own funds. Even if the fact was otherwise, however, we should be unwilling to overrule the earlier decision because we were not in entire accord with the. policy which it lays down. As was said by us in Bowman v. Freeholders of Essex, 73 N. J. Law 543, a decision upon a point of law which has been made upon solemn argument, and after mature deliberation, ought not to be disturbed by the court in which it was promulgated except for very urgent reasons and upon a clear manifestation of error. It can hardly be contended that we a.re now confronted with such a situation.

The decree of the court of chancery establishing the usurious character of the transaction under review will be affirmed.

For affirmance — The Chiee-Jtjstice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Bogert, Heppen-HEIMER — 9.

For reversal — Black, Vredenburgh, Williams — 3.


author: Gummere, Chief-Justice.

text:
    William H. Keneaster and Elsie M. Keneaster, respondents, v. William Erb et ux., appellants.
    [Argued June 24th, 1914.
    Decided November 19th, 1914.]
    1. A tenant in common, who has been disseized of a part of the tract held in cotenancy, is not entitled to partition as against the disseizor.
    2. The right to a partition of lands can only be exercised as between joint tenants or tenants in common.
    S. The conveyance of an absolute estate in fee-simple, by a tenant in common, of a part of the land held in common, without the consent or. knowledge of his cotenant, will not affect, much less destroy, the right of the cotenant to have a partition of the whole tract; but, in the exercise of that right, the partition will be made in such a way as to protect, so far as possible, the interests of-the grantee in the part of the land so conveyed to him.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported ante p. 206.

      Mr. William J. Kraft and Mr. Charles K. Landis, Jr., for the appellants.

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

Gummere, Chief-Justice.

The bill in this case was filed by Lillian Keneaster against William Erb, and Emma, his wife, for partition of a tract of land in Sea Isle City, about one hundred feet in width and ninety-five feet in depth. Mrs. Keneaster having died pendente lite, the present respondents, her husband, and only child, were substituted as complainants. The learned vice-chancellor held that the complainants were entitled to a partition, and, as an actual division of the land itself could not be made, directed a sale thereof and a. distribution of the proceeds between the complainants and defendants. From this decree Mr. Erb and his wife appeal.

The material facts are as follows: About the year 1901 Lillian Keneaster and Matilda Landis became tenants in common in a tract of land in Cape May county, bordering on the Atlantic ocean, containing three hundred and fifty-four acres. Miss Landis owned an undivided three eighty-seven three ninety-seconds of this tract, and Mrs. Keneaster owned an undivided five three ninety-seconds part thereof. In 1908, Miss Landis executed a deed in fee for a part of this tract, containing about one hundred acres, to one Edgar S. Ale, and he, in turn, conveyed it to the Sea Isle City Realty Company. This company laid out the one-hundred-ac-re tract into streets, blocks and lots; and, after improving the property, sold a considerable number of the lots to different purchasers, among whom was the defendant Erb. The conveyance to Erb was by deed of general warranty', with full covenants, and covered the property of which partition was sought by Mrs. Keneaster. It consists of four adjoining Lots, numbered 28, 29, 30 and 31, in block A, as laid out on a map of the property by the Sea Isle City Realty Company. Having paid the purchase-money for this conveyance, Mr. Erb entered into exclusive possession of the four lots and continued in such possession, and in the sole enjoyment of the profits thereof, from that time up to the filing of the bill in this cause.

We think this decree cannot be sustained. The right to partition can only be exercised as between joint tenants, or tenants in common, and no such relationship existed between Mrs. Keneaster and Erb. The conveyance of Miss Landis, who was the co-tenant of Mrs. Keneaster, to Ale, of the entire estate in the land embraced in the deed to him, was conclusive of her purpose to appropriate so much of the land to her own use; and the subsequent conveyance by Ale to the realty company was an equally positive declaration of his claim to ownership of the entire interest in this one hundred acres. This is true also with relation to the effect to be given to the conveyance by the realty company to Erb, and that is peculiarly so, in view of the fact that this latter conveyance contained full covenants of seizin and warranty. The entry of Erb under his deed, and his exclusion of Mrs. Keneaster, was a complete disseizin by him, and if he had been permitted to remain in possession for. a period of twenty years continuously, without any interference on her part or on the part of those who succeeded to her interest, he would have had a complete title by adverse possession. Foulke v. Bond, 41 N. J. Law 527, 540. Mrs. Keneaster, having been disseized by Eib and those through whom he claims, and having been actually ousted by his exclusive possession of the property, cannot claim a right against him which can only be exercised by a joint tenant or tenant in common against a cotenant. A tenant in common who has been disseized is not entitled to partition as against the disseizor where there has been an actual ouster by him. Roll v. Everett, 73 N. J. Eq. 697.

We are not to be understood as holding that the conveyance of the one hundred acres by Miss Landis to Ale, and the subsequent conveyances of that tract, operated to destroy the right of partition which prior thereto had vested in Mrs. Keneaster. Her right prior to the Landis grant was to have a partition of the whole tract of three hundred and fifty-four acres-owned by her and Miss Landis in common, and to have five three ninety-seconds (approximately one-seventy-eighth) parts thereof set off to her in severalty. That right was not affected, much less destroyed, by the wrongful conveyance o£ approximately two-sevenths of that tract by Miss Landis. Holcomb v. Coryell, 11 N. J. Eq. 548; Boston Franklinite Co. v. Condit et al., 19 N. J. Eq. 394. If she had sought partition of the whole tract, under the conditions exhibited in the present case, such partition would have been directed, of course, upon equitable terms. In other words, the interests of those parties who hold under the Landis conveyance, and have, in good faith, improved the property embraced therein, would have been protected to the same extent as Miss Landis’ rights would have been if she had made such betterments herself for the purpose of improving the properly, and not for the purpose of embarrassing her cotenant or encumbering her estate; for they would be subrogated to her rights. That she would be protected is entirely settled by the decisions in this state; and such protection would usually be afforded either by assigning to her the portion oí the land upon which the improvements have been made, at the value of the land, without the improvements, or, if that could not be done, then by compensation directed to be made to her for them. It was so declared in the early case of Brookfield v. Williams, 2 N. J. Eq. 341, and the principle of that case has been followed in Doughaday v. Crowell, 11 N. J. Eq. 201; Hall v. Piddock, 21 N. J. Eq. 311; Atha v. Jewell, 33 N. J. Eq. 417, and Shipman v. Shipman, 65 N. J. Eq. 556.

The decree under review will be reversed.

For affirmance — None.

For reversal — The Ci-iiee-Justice, Garrison, Swayze, Parker, Bergen, Kalisoh, Black, Bogert, Vredenburgi-i, HEPPENI-IEfMER, WlLLJAMS-11.


author: Swayze, J.

text:
    Carrie S. Beam, respondent, v. Paterson Safe Deposit and Trust Company, appellant.
    [Argued March 18th, 1914.
    Decided November 16th, 1914.]
    A trustee received as part of the trust fund stocks and bonds of corporations in which the testator had invested in his lifetime, which were supposed to be of the highest class; subsequently they depreciated at a time of financial depression; another corporation to which the properties had been leased became insolvent; the court directed the receiver to borrow money on receiver’s certificates to pay the rent, and it was paid; later there was a default, but there was then no market for the securities; quotations were merely nominal and of a speculative character; the securities were unsalable. — Held, that since the good faith of the trustee was conceded, it had under the special facts of the case exercised reasonable discretion and was not liable for the loss.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 82 N. J. Eq. 518. ' _'

      Mr. Pierre F. Gooh, for the respondent.

      Mr. John W. Harding and Messrs. Griggs .& Harding, for the appellant.
   The opinion of the court was delivered by

Swayze, J.

We agree with the learned vice-chancellor that the burden of proving that the trustee exercised good faith and reasonable discretion is upon the defendant, as we have already decided upon appeal from the order refusing to strike out the bill. 81 N. J. Eq. 195. We differ from his conclusion that the defendant has failed to establish the exercise of good faith and reasonable discretion, which is the duty imposed by the statute. Comp. Stat. p. 2271 pi. 3J. Its good faith is not questioned. Our examination of the facts shows that the securities were supposed to be of the highest class; that on August 1st, 1906, the date fixed by the vice-chancellor as the time when the trustee should have sold, they had fallen, as follows: Central Park, North and East Eiver Bailwa3r stock, from 206 bid and 210 asked to 195 bid and 200 asked; Twenty-eighth and Twenty-ninth Streets Crosstown Bailroad first mortgage bonds, from 112 bid and 113% asked to 102 bid and 105% asked; Second Avenue Bailroad Company Consolidated 5’s, due 1948, from 115 bid and 117 asked to 111 bid and 113 asked. The prices at the date fixed.by the vice-chancellor while lower than when the trust company acquired the securities, were still prices commanded by high-grade investments. To hold that so slight a variation in the market required the trustee to sell would, in effect, require a trustee to watch the “ticker” as any mere speculator might. This is not the duty of a trustee. He is to invest in safe productive securities and mere fluctuations in market price which may be due to variation in the current rate of interest or in the current demand for ready money in panic or in war, ought not to force him to sell. Were it otherwise, it would practically be impossible to invest a trust fund with any approach to permanence, and the loss of interest on the constant reinvestment might be a serious loss to the cestui que trust. These considerations suffice to' show that the date fixed by the vice-chancellor cannot be justified. We cannot, however, leave the case at that since, subsequently, the securities became practically worthless, and a rapid fall began in the summer of 1907. This is shown to have been a time of financial depression when the best securities dropped in value. We think that even then the trustee was not required to sell, since great shrinkages take place at such times which are subsequently recovered; the trustee might be held liable for loss if he sold when the market was low and there was a subsequent recovery. 'The testimony is uncontradicted that nothing occurred to disturb anyone’s sense of security until about' September, 1907, when receivers were appointed for the New York City Railroad Company, the lessee of the companies whose securities are now in question. This led to the trustee taking steps to protect the interests of its cestuis que trust as well as its own interest as holders of the same securities. We see no reason to doubt, and there is no evidence to the contrary, that all was done that was possible. The federal court in New York directed the receivers of the New York City Railroad Company to operate the whole sjrstem, and to borrow money on receivers’ certificates to pay the rent on the leases of the three companies. There was no default until 190.8. The dividend on the Central Park stock was paid on January 1st, 1908; the interest on the Second Avenue bonds on February 1st, 1908, and-on the Twenty-eighth and Twenty-ninth Streets Crosstown bonds on April 1st, 1908. As long as the dividends and interest were regularly paid under an order of the court, the trustees were certainly justified in disregarding the market fluctuations, unless there was something else to arouse their suspicions;' there is no proof that there was. When the default in dividends and interest came later, tire time had passed when it was possible to save the situation. There was no market for the securities; the quotations are shown to have been merely nominal and of a speculative character; as one witness said, “you. couldn’t do anything; the bottom fell out eom•pletely;” or, as another witness put it, “they were unsalable; where a stock was quoted as 50 bid, if you had offered ten shares you couldn’t have got fifty per cent, of the nominal quotation price.” In the face of this uncontradiéted testimony, we are unable to see what the trustee could have done; its good faith is unquestioned and is conceded; we think it exercised reasonable discretion. It is indeed suggested that the trustee should have sought the protection of an order of court under the act of 1889; but such an order would have done no more than give the authority which the statute of 1899 itself conferred. Erom whatever source the authority came, whether from the court or the legislature, the trustees would at least have been bound thereafter to exercise the good-faith and reasonable discretion that the act of 1899 requires.

It is also suggested that perhaps an examination of the records would have disclosed that the old mortgage on the Central Park road was uncanceled. The difficulty is that it is impracticable to require trustees investing in bonds for a comparatively small amount, a portion of a large issue, to make such an examination. The expense would be prohibited, and, as business is done by careful investors, reliance must be had upon the opinions of bankers who have made, or may properly be supposed to have made, the necessary examination and inquiry for their clients. This is one of the useful purposes served by bankers in our modern business organization.

We think the defendant in this case has proved that it exercised good faith and reasonable discretion, and as the statute enacts is not accountable for any loss by reason of the continuance of the investments. If it is necessary to refer to the adjudged cases, it is enough to cite Matter of Weston, 91 N. Y. 503; Matter of Mercantile Trust Co., 141 N. Y. Supp. 460; Bowker v. Pierce, 130 Mass. 262. The decree must be reversed and a decree entered dismissing the bill, with costs.

For affirmance — None.

For reversal — The Chief-Justice, Swayze, Trench ard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Terhune — 10.


text:
    Mordecai E. Endicott, respondent, v. Philip Marvel et al., appellants.
    [Argued June 17th, 1914.
    Decided November 16th, 1914.]
    1. A corporation borrowed of five of its seven directors and pledged its own stock as collateral, giving collateral notes in the ordinary form, authorizing a sale in default of payment at maturity; there was default . in payment, but nothing further was done; there was no demand for payment, no sale, no foreclosure, no notice to redeem. The stock became very valuable and upon liquidation of tjie company, much more was realized than sufficed to pay the notes. — Held, that a stockholder had the right to insist upon the redemption of the stock by paying the debt and interest and upon- the return of the overplus to the treasury of the corporation.
    2. Where five out of seven directors of a corporation held stock as a pledge for money loaned the corporation, and it was claimed that the right to redeem had been lost by laches — Held, that there was no laches as long as the pledgor had no opportunity to act, and that as the corporation was always in the control of the pledgees, the pledgor never had a chance to redeem, and there was no laches.
    On appeal from a decree oE the court of chancery advised by Yiee-Chancellor Learning, whose opinion is reported in 81 N. J. Bq. 878.

      Mr. Joseph U. Gusldll and Mr. Allen B. Bndicoit, for the respondent.

      Mr. Robert H. McCarter and Mr. George- A. Bourgeois-, for the appellants.
   The opinion of the court was delivered by

Swayze, J.

We think this case presents little difficulty. In 1898, five out of seven directors of St. Leonard’s Land Company loaned about fifteen hundred dollars each to the company for its immediate and pressing- needs. Each was given a collateral note in the ordinary form; pledging thirty shares of stock of the company as collateral and authorizing a sale in default of payment at maturity at private sale without notice to the company and with the right to the pledgee of becoming the purchaser. There seems to be no question that the transaction was a proper one and for the benefit of the company at a time when it was otherwise impossible for it to secure needed funds. There was default in payment. Nothing further seems to have been done. There was no demand for payment, no sale, no foreclosure, no notice to redeem. The stock became very valuable, and upon liquidation of the company much more was realized than sufficed to pay the notes. The five directors, however, retained the monej1-, including the excess after payment of the notes, and do not seem even to have returned the notes to the corporation. Thereupon a stockholder filed this bill seeking an account, and praying that the five directors accept each the amount due with interest and pay into the treasury of the company all dividends and profits.

This presents a plain case of a pledgee who seeks to retain the pledge without calling upon or giving the pledgor a chance to redeem or pursuing the remedy by sale specially pointed out in the notes. It was no doubt a breach of the duty of the defendants as directors to fail to redeem, for the benefit of their company, the stock pledged, as soon as the company was in funds, but tiie complainant’s rights do* not rest upon this breach. He may properly insist that the rights of the pledgor corporation shall be protected against the pledgees. The directors seem to have thought that under the resolution the stock became their absolute property at the end of the year. The language of the resolution is: “The company to have the privilege of redeeming the stock in one yeap from date with interest at 6 per cent., otherwise to revert to the borrower.” (The use of the word “borrower” is explained by the fact that each of the five directors was to borrow the money he was to loan the company.) The language is not apt to express an intent to foreclose automatically, without notice or sale, the ordinary right of a pledgor to redeem, even though there has been default in payment when the loan was due; but if we assume that apt language for that purpose had been used, the case of the defendants would not be helped. That for three reasons — first, because an agreement of that kind in a contract of pledge is inconsistent with the contract itself which by its very nature involves a right to redeem (31 Cyc. 858, 859; Jones Pl. §§ 554, 555); second, because it would be a contract of a harsh and unusual character between directors and their corporation to the personal advantage of the directors; third, because the pledgor was controlled by the five pledgees and could not redeem except by action of the pledgees, who were thus necessarily put in a position where their personal interest was adverse to that of their company. An agreement to waive the right to redeem the pledge is always scrutinized by the courts with jealous care and cannot be enforced where the pledgor has no opportunity to redeem unless the pledgee chooses.

In this ease, the agreement giving the pledgor the privilege of redeeming in one year seems to have been made in October, 1898, while all but one of the loans were made at an earlier date. This does not help the defendants. They still retained the notes authorizing a sale in the usual fashion of collateral notes, and the action in October was clearly meant as a performance of the agreement to pledge the stock as collateral, and a ratification of the notes already given. We cannot otherwise explain the language. of the resolution that each director borrow the sum of $1,500 and receive company’s stock as collateral. (We pass over as unimportant for the present purpose the discrepancy between the fifty per cent, excess of stock authorized by the resolution and the one hundred per cent, excess actually pledged.)

The notes and the resolution must be read together, and by their terms, no absolute title could be acquired by the pledgees except by a sale. There was no such sale and their title continued to be by way of pledge only.

This view of the case disposes of the argument directed to what were called promoters’ profits and the limitation of time applicable to actions for their recovery.

There were no promoters involved and no profits. It is a case of a pledgee attempting to retain for himself the proceeds of the pledge over and above the amount of the debt.

We are referred to numerous cases where the rights of the pledgor have been held to be forfeited by laches and long delay. All were cases where a sale had been had and the pledgor delayed in objecting; we do not question that informalities in proceedings to foreclose a pledge may be waived by delay in making objections. We are pointed to no authority which holds that the right to redeem can be cut off without any proceeding whatever. If it could, the laches would not begin to run until the pledgor had an opportunity to act, and in this case the pledgor corporation was always in the control of the pledgees and never had a chance to redeem.

We are not concerned with the question to which the stress of the argument was directed. Whether the other two directors acted liberally to the corporation in refusing to help, as the five directors did, whether they had knowledge of what was done, whether they will profit by the calling to account of their five associates, is of no consequence. The complainant as a stockholder has the right to insist upon the performance of the contract of pledge, upon the redemption of the stock by paying the debt and interest, and, since the pledgees already have received more than enough for that purpose, upon the return of the over-plus to the treasury of the corporation.

The decree is affirmed, with costs.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenohaed, Parker, Bergen, Minturn, Kalisoi-i, Bogert, Vredenburgh, Heppenheimer, Williams — 12.

For reversal — None.


author: Trenoi-iard, J.

text:
    Jackson Realty Company, complainant and appellant, v. Minnie Lehman et al., defendants and respondents.
    [Submitted July 10th, 1914.
    Decided November 16th, 1914.]
    1. The authority of an agent or officer of a corporation to do certain acts in behalf of his principal may be inferred from the continuance of the acts themselves over such a period of time, and the doing of them in such a manner, that the principal would naturally have become cognizant of them and would have forbidden them if unauthorized.
    2. On the facts of this case, as recited in the opinion, the secretary of the complainant company is deemed to have been authorized by the company to accept the usurious payments in its behalf. •
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison.

      Mr. Isidor H. Brand and Mr. H. 8. Stuhr, for the appellant.

      Mr. Harry W. Lange, for the respondents.
   The opinion of the court was delivered by

Trenoi-iard, J.

This was an action to foreclose a mortgage which, on its face, was for $1,300.

The defence was usury and it prevailed in the court of chancery where a decree was entered for the amount due after deducting the statutory penalty for usury.

The facts are as follows: Max Lehman, one of the defendants, desired to borrow' money. He learned that he could get it from the Jackson Realty Company, the complainant. He consulted Simon Lubash at his office. Lubash was, at that time, and for some years afterwards, the secretary and one of the active men of the company, and had the company’s books at his office. Lehman was informed by Lnbash that he could have $1,300 provided he gave a bonus of ten per cent, thereon to the company for loaning it to him. On September 8th, 1908, he paid Lubash $130, and, on the same day, at the office of the lawyer of the company, executed a bond and real estate mortgage and received a check for $1,300. The bonus was paid in cash, Lubash refusing to take a check. The mortgage was to be paid off in installments of $162.50 every three months, together with the interest - accrued at each period. He paid to Lubash $162.50 for each of the four installments next ensuing after the execution of the mortgage. When the next installment became due, he informed Lubash that he desired to extend the mortgage for another year and not be called upon to pay his $162.50 installments, and Lubash told him that the company would do this, provided he paid ten per cent, of the then existing principal, -which was $650. He agreed to this, and paid to Lubash $65 in cash at his office and Lubash entered the payment in a book and put the money and the book in the safe. The company did not, during the next ensuing year, take any proceeding against him to collect the mortgage because of the non-payment of these installments. Interest was paid, but nothing on account of principal. At the end of that year he again informed Lubash that he wished to obtain another extension for a year during which he would not be required to pay any part of the principal but would only be required to pay interest on the amount of principal then due, which was still $650. Lubash informed him that the company would extend the mortgage for another year and not require anything on account of the principal, provided he paid the company another ten per cent, for this accommodation. This he agreed to and paid $65 in cash. During the next ensuing year likewise, interest was paid, but no installments, and still the company took no action. When that- year expired Lehman again sought Lubash, and Lubash told him then that he was no longer an officer of the company, but that Mr. Goldram had better be seen. Mr. Goldram. was, and since the inception of the company had been, its president. Lehman testified that hé went to Gold-ram’s office and was informed by him that he could have the extension of the mortgage for another year, provided he paid $25 a month instead of $162.50 every three months; and also provided he paid another ten per cent, bonus. He further testified that he went a few days later to Goldram’s office and left with Goldram’s son $35 in cash and a check for $28.25, the $35 being on account of the <$65 bonus, and the $28.25 being $25 for the first installment on principal under the new arrangement, and <$3.25 accrued interest. Goldram admits that this amount of money and the check were left at his office, and both agree that, within a day or two, Goldram came to Lehman’s place of business and had a talk. They both agree that, after that talk, Goldram took away with him the money that he had brought there and the check. They disagree as to what was said between them. Lehman says that Goldram told him that he would not receive any checks; that they did not receive cheeks for that kind of thing; that he must make his whole payment in cash. Lehman further testified that he told Goldram that the check was for a payment on the installment on the mortgage, and therefore there was no reason why that should not be represented by a check; that, as to the bonus, the $35 in cash was intended to apply on account of that; that he would pay him the other $30 in a few days, and that Goldram was satisfied with that, and took the check and the money and left. Lehman’s brother corroborates some part of this. Goldram says that he got this check and money; that he did not know what it was about; that he went around to see Lehman, and told him that he would not receive that amount but would have to have a larger amount (how much larger he does not state, nor what amount); and that, further, he told Lehman he must come before the weekly meeting of, the board of directors; that Lehman told him he would do so; that he had given Lehman the check and the money, but Lehman gave them back to him and said, “You keep these until I get around before the board of directors,” and he did so.

Shortly thereafter, no further payments being made by Lehman, and he having refused to pay the balance of the bonus, the bill of foreclosure was filed.

We are of the'opinion that the vice-chancellor properly charged the complainant company with the usurious moneys received by Lubash, its secretary.

It is true that there is no direct evidence that the company received from Lubash the usurious moneys, but it is admitted that it received from him the four installments paid during the first year; aggregating $650, and all payments of interest.

But we think that the conclusion is irresistible that the company had knowledge of the usurious agreements made by its secretary, and that he was authorized to make them.

The rule is that the authority of an agent to do certain acts in behalf of his principal may be inferred from the continuance of the acts themselves over such a period of time, and the doing of them in such a manner, that the principal would naturally have become cognizant of them and would have forbidden them if unauthorized. Dierkes v. Hauxhurst Land Co., 80 N. J. Law 369.

During the several years covered by this transaction, and until near the end when Goldram appeared, the complainant corporation was represented wholly and solely by Lubash. It was with him that the borrower exclusively dealt. In fact, so far as the borrower is concerned, Lubash typified the corporation. He was the custodian of its books. Lehman made payment of the four installments of principal and all payments of interest to him. It is undisputed that lie made all of the usurious payments to him. It is admitted that the corporation received regularly the four installments of principal and the payments of interest during the entire term. Lehman, assumed and testified that in each instance he was informed by Lubash that ihe company insisted upon these bonuses before it would make the loan, and later, before it would modify its terms. The company does not deny that it authorized Lubash to make these corrupt agreements. It does not deny that it received these bonus moneys. In every instance the company did the very thing that Lubash agreed they would do when he accepted the money. It had weekly meetings of its board of directors, but for a period of two years it did not foreclose or in any way proceed against Lehman, .although he was, if the arrangements made by Lubash were to be disregarded, during this entire two years in continual default to the corporation. After Lehman made the second payment’ of bonus (the first $65 payment) he was always in default so far as the terms of the mortgage were concerned. He should have paid $162.50 at four periods during that year, and at four periods during the succeeding year, if the mortgage was not sooner paid off. The company knew that he had made none of these payments, and there is not a scintilla of proof to show that he was ever pressed to make any of them. ' We think it is incredible that the company would have acted in this way, unless it knew of the corrupt agreements made by Lubash. Of course, knowing of such agreements, it would have repudiated them if Lubash had no authority io make them in the company’s behalf.

This conclusion is strongly fortified when we consider the attitude of its president, Goldram, with reference to Lehman’s last proposition for an extension. In view of the previous dealings between Lehman and the company, and what we find to have been the facts, we believe that Lehman spoke the truth with reference to his dealings with Goldram, and this notwithstanding the latter’s partial denial. Goldram’s disinclination to receive the check until he was assured that it represented part of the principal and interest, and not. bonus money, and his acceptance of the $35 in cash after he knew, as we find, that it was for a part of the bonus, the balance of which was promised later, shows, we think, that Lubash’s usurious exactions were in line with the settled policy of the company.

The decree will be affirmed, with costs.

For affirmance — The Chibe-Justice, Garrison, Swayze, Teenckard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, Heppenheimer, Williams — 13.

For reversal — Hone.


author: Parker, J.

text:
    Charles A. Steadman et al., executors, &c., complainants-respondents, v. Frank J. and Clara F. Foster, defendants-appellants.
    [Argued June 22d, 1914.
    Decided November 16th, 1914.]
    1. The record of an assignment of mortgage of real estate is constructive notice to the mortgagor of such assignment.
    2. The habitual payment of interest on a mortgage to a person other than the mortgagee, who in turn paid it to the mortgagee, will not authorize the payment of principal of such mortgage to such other person.
    3. The execution by the mortgagee of a release of part of the mortgaged premises after the malting of such unauthorized payment, does not amount to a ratification of its receipt when it does not appear that the mortgagee received any of the money or knew of the payment.
    4. The making of the payments having come to the knowledge of the mortgagee after the death of the person that received them, and a dispute having arisen between mortgagor and mortgagee as to which should make claim against the estate, and the mortgagor finally refusing so to do, — Held, that the action of the mortgagee in filing a claim to save its total loss to all parties amounted neither to an estoppel of the mortgagee to claim the full amount of the mortgage nor to a ratification of the act of the deceased in receiving the money.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery.

      Mr. Frederick J. Greenberg and Messrs. Osborne & Astley, for the appellants.

      Messrs. Lehlbach & Van Buyne, for the respondents.
   The opinion of the court was delivered by

Parker, J.

This is a. suit for foreclosure of a mortgage, and the question for decision is whether two payments of $500 each, made by de- . fondants to Charles A. Feick, now deceased, should he credited on the principal of the mortgage. The vice-chancellor ruled that the complainants were not required to give credit for them, and the defendants appeal.

The mortgage was made originally to Feick, who, about three months later, and before any interest was due thereon, assigned it to Mary E. Steadman, complainants’ testatrix, the assignment being promptly recorded and the bond and mortgage turned over to Mrs. Steadman, who retained possession of them until her death. Feick, however, habitually collected the semi-annual interest, defendant Frank J. Foster paying it in at his office and taking a receipt signed by a clerk, presumably in Feick's name. This interest was regularly remitted to Feick and received by complainants’ testatrix without objection to his action, and the vice-chancellor properly held that by thus receiving it she assented to Feick acting as her agent for the collection of interest.

The two payments, intended to be on account of principal, were made at Feick’s office, but without Mrs. Steadman’s knowledge, and were never transmitted by him, he accepting interest from Foster as on a reduced principal, and remitting to Mrs. Steadman full interest on the original principal. These facts developed after Feick’s death. Mrs. Steadman, so far as appears, never authorized Feick to receive payments of principal, and from the fact that Feick paid her interest in full, it is apparent that she did not know of any such pajunents. According to Foster’s testimony they were made in this wa}': About August 1st, 1910, Foster contemplated the sale of part of the mortgaged premises, so he went to Feick’s office and asked for a release of this part, and was told he would have to make a payment on account of principal, and accordingly paid $500. He did not get his release then, but was told that “Mrs. Steadman was away.” A year' later, in July, 1911, he asked for the release, and was required to pay $500 more, which he did, and, later, received through Feick’s office the release, dated August 1st, 1911, but not acknowledged until September 27th, 1911. It appears from the testimony of a former clerk in Feick’s office that he, the said clerk, arranged with Mrs. Steadman to execute the release, assuring her that the security of the mortgage would not be impaired thereby, and without informing her of the two $500 payments that had been made to Eeick.

It was claimed at the hearing that the payments should be credited on the mortgage because the Fosters did not know of the assignment. But the vice-chancellor properly held that they were bound to know of it. Leonard v. Leonia Heights Land Co., 81 N. J. Eq. 489. Moreover, it is reasonably plain that Foster must have had actual notice of it when told, as he testifies, that the release could not be given him “because Mrs. Steadman was away.”

It was further claimed that the evidence showed that Feick was authorized to receive payments of principal as Mrs. Stead-man’s agent; but this claim cannot be supported. The practice of permitting attorneys-at-law to receive and give acquittances for interest payments is common; but the habitual payment of interest to an attorney-at-law who in turn remits it to the mortgagee, does not establish his authority to receive the principal or any part thereof, especially -when he has not the custody of the papers. 27 Cyc. 1389; Cox v. Cutter, 28 N. J. Eq. 13. Hot does it amount to a holding out of the attorney as agent so as1 to create any estoppel against the mortgagee. Lawson v. Nicholson, 52 N. J. Eq. 821.

The further point is made that Mrs. Steadman ratified Feick’s receipt Of tire principal payments by executing the release. But this is obviously without substance, for, as already observed, she knew nothing of the payments and released (for a stated consideration of one dollar) purely on the representation that her security for the entire principal would not be impaired.

Finally, it is urged that she either ratified the receipt of this money by Feick or is estopped as against the Fosters from1 denying his agency, because she presented a formal sworn claim for the amount to the Feick estate after his death.

The evidence showed that both Mrs. Steadman and the Fosters were represented by the same attorney so far as the Feick estate was concerned; that he made up first a joint or alternative claim,'consisting of the affidavit of Foster that he paid in the money and the affidavit of Mrs. Steadman that it was received without her authority; that the attorney was notified by the executor of Feick that this could not be recognized as a claim, and so he prepared and presented several similar documents, all of which were overruled, and, filially, after many disputes between Mrs. Steadman and the Fosters as to which should be the moving party in making a claim against the estate, he prepared and presented at the,last moment a claim in the name of Mrs. Steadman in order to avoid, as he put it in his testimony, “making a gift to the estate.”

From what has been said, it is plain that the claim should have been put in by the Fosters, who had every opportunity of doing so, and refused. It does not savor of equity for them now to say that because she did what they should have done, she should lose her right of recovery against them. Certainly, there is no estoppel; for the Fosters were not led to change their position by any act of Mrs. Steadman. Nor is there any ratification; for, as the vice-chaneeilor observed, Mrs. Steadman would have the right to resort to the Feick estate for any deficiency on the foreclosure sale, not exceeding the amount paid by Foster, but to lay the foundation for this must file a claim within the time allowed by Jaw. The vice-chancellor fairly solved the difficulty by inserting in the decree a provision that upon collection of the amount of the decree the complainants should assign to the Fosters the claim against the estate of Feick. This does full equity to all the parties. The decree of the court of chancery is affirmed, with costs.

For affirmance — The Ctiiise-.Justioe, Garrison, Swayze, Trenci-iare, Parker, Bergen, Minturn, Kaliscii, Black, Bogert, Yredenbukgh, Williams — 12.

For reversal — None.


author: Kalisoh, J.

text:
    W. M. Ostrander, incorporated, complainant-respondent, v. The United New Jersey Railroad and Canal Company et al., defendants-appellants.
    [Argued March 10th, 1914.
    Decided July 10th, 1914.]
    1. In a suit for specific performance, to enforce by way of injunction, a covenant for maintaining certain farm crossing's constituting rights of way over the defendant railroad company’s lands, as claimed by the complainant, and which the bill of complaint alleges passed to the complainant by conveyance from the original covenantees, and in which the complainant claimed an easement, where the answer denied that the complainant became seized and'possessed of such rights of way or easement, and further set up an exclusive and continuous possession of the premises for more than twenty years prior to the filing of the bill adverse to the rights of way or easement, if any, reserved by the covenant and the consequent extinguishment thereof, and further set up a lost grant or release, releasing to the defendants all rights of way or crossings over the railroad tracks — Held, that the fundamental right upon which the complainant prays equitable relief is the legal title to an easement in lands of the defendants, and that right being in substantial dispute, until such right is settled at law the aid of a court of'equity cannot be properly invoked. ,

      2. It can make no difference that the bill of complaint is for specific performance of a covenant out of which the easement arises, since the substantial question raised by the bill and answer is whether the complainant has the legal title to the easement. It is wholly immaterial under what form of bill the question arises. The disputed question must be first settled at law, and in favor of complainant, before the complainant is entitled to relief sought by the bill.
    3. In a suit for the specific performance of the following covenant contained in a deed made by the complainant’s predecessor in title to the defendant railroad and canal company, “And it is hereby understood and agreed by and between the parties hereto that the said parties hereto of the second part (viz., The United New Jersey Railroad and Canal Company) shall and will construct and maintain fences between the strips of land hereby conveyed and the remaining land adjoining of the said parties of the first part. And the said party of the second part (viz., The United New Jersey Railroad and Canal Company) shall and will maintain the two farm crossings now existing across the said strips or pieces of land hereby conveyed” — Held, that a decree cannot be justified which adjudges the complainant to be entitled to enjoy a right of way or easement for itself, its agents, servants and licensees, on foot or in vehicles over the land of the defendants, and so materially broadens and enlarges the right of way or easement reserved by the covenant between the parties, thus virtually converting a private road into a public one.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis.

      Mr. Alan il. Strong, for the appellants.

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

Kalisoh, J.

The respondent, complainant below, the owner of a tract of land in the county of Middlesex, lying on both sides of the railroad, United New Jersey Railroad and Canal Company, which it holds, through mesne conveyances from Ellis and Edward E. Potter, filed its bill of complaint in the court of chancery against the appellants, defendants below, for specific performance.

The prayer for relief is, in substance, that the defendants be enjoined and commanded to restore certain easements, crossings and rights of way over their premises as the same existed at the time of a conveyance made by Ellis and Edward E. Potter to the United New Jersey Railroad and Canal Company, one of the appellants, in 1882; and that the defendants be enjoined and commanded to remove all obstructions erected and maintained by them in said crossings or rights of way; and that the defendants be enjoined and restrained from further obstructing the easements and crossings by the building of embankments, the excavation of ditches and by the construction of further railroad tracks thereon, without maintaining thereover platforms and approaches at such grades as to- afford the complainant free and unobstructed passage suitable for pedestrians and vehicles, and that the defendants be enjoined and commanded not only to re-establish the crossings and rights of way but to maintain the same over their premises in suitable condition for the passage of pedestrians and vehicles, and for such further and other relief as the nature and circumstances of the case may require.

The basis for invoking the jurisdiction of the court of chancery, by the complainant, was an alleged breach of a covenant contained in the deed of conveyance, made by the Potters to the United New Jersey Bailroad and Canal Company, in the year 1882, and which is as follows:

“And it is hereby understood and agreed by and between the parties hereto that the said parties hereto of the second part (viz., The United New Jersey Bailroad and Canal Company) shall and will construct and maintain fences between the strips of land hereby conveyed and the remaining land adjoining of the said parties of the first part. And the said party of the second part (viz., The United New Jersey Bailroad and Canal Company) shall and will maintain the two farm crossings now existing across the said strips or pieces of land Jiereby conveyed.”

The effect of the Potter conveyance -was to extend the line of the United New Jersey Bailroad and Canal Company about three thousand two hundred feet through the Potter property and divided the farm through which it traversed into two almost equal parts, leaving seventy-two acres iying easterly of the railroad and a little over seventy-three acres lying westerly of the railroad.

Por a long time prior to the Potter conveyance to the railroad company the easterly and westerly portions of the farm were connected by the crossings over the tracks of the railroad company, passable for pedestrians and vehicles, over which the Potters and their licensees were accustomed to pass on foot and in vehicles.

It was these crossings which the complainant claims constituted rights of wrav over the defendants’ lands and which it asserts passed to it by the conveyance to Potters.

The bill charged that the defendants have tom up and demolished the twro farm crossings and have constructed embankments and ditches and have laid railroad tracks upon the embankments without providing platforms between the sanie and had fenced the lands so as to make the rights of way and crossings impassable to the complainant, its agents, servants and licensees either for pedestrians or vehicles, &c. ■

The defendants, in their answer, admitted the complainant’s title to the farm as set forth in the bill and also the convej^anee -by Potters to the railroad company containing the covenant above set forth, and also admit the existence of the easements and rights of way which the Potters and their licensees enjoyed at the time of the making of the deed by them to the railroad company. The defendants denied that the complainant became seized and possessed of these rights of way or casements, and further asserted that in the year 1890 they had torn up and demolished the two crossings and constructed embankments and ditches and made the crossings impassable and incapable of use, and that this condition has continuously existed ever since, thus setting up an exclusive and continuous possession of the premises for more than twenty years adverse to the rights of way or easements, if any, reserved by the covenant in the deed, and the consequent extinguishment thereof.

The answer further contained a plea of a lost grant or release, releasing and discharging to the defendants all rights of way or crossings over the railroad tracks.

The vice-chancellor adjudged that the complainant is seized and of right possessed and entitled to enjoy a right of way or easement for itself, its agents, servants and licensees on foot and in vehicles over the lands of the appellants at the more westerly of the two crossings mentioned in the bill of complaint, and that the appellants be enjoined apxl restrained from in any way obstructing, &c., with the free passage of the complainant, &c., and that the appellants be enjoined and commanded to remove the fences, embankments, &c., in interference with the free passage of the complainant, its officers, agents, servants and licensees, either on foot or in vehicles over the lands of the appellants, and to restore to the complainant a crossing over said lands at the place aforesaid, passable for pedestrians an'd vehicles, as the same was possessed and enjoyed by Ellis Potter and Edward E. Potter, and that the appellants maintain the same.

The appellants appeal from this part of the decree upon the ground that the fundamental right upon which the complainant prays equitable relief is the legal title to an easement in lands of the defendants, and that right being in substantial dispute, until such right is settled at law the-aid of a court of equity cannot be properly invoked.

The right of the court of chancery to entertain jurisdiction at the present time is not challenged in the answer. But this was not necessary. In Mason v. Ross, 77 N. J. Eq. 527, it appears that the defendant did not challenge the jurisdiction of the court of chancery, but this court, speaking through Chief-Justice Gummere, held that the question whether a right of way over the lands óf one place exists in favor of. another is purely a legal one, and, where the existence of such an easement is in dispute, the proper tribunal in which to settle it is a court of law; and that if the defendant had challenged the right of the court to entertain jurisdiction at this time, the bill would have been dismissed for lack of it, but that not having been done, the proper course for the court to have pursued was to retain the bill until' the complainant had had a. reasonable opportunity to establish her title at law. The decree was reversed so that the course indicated in the opinion could be pursued.

It can make no difference that the bill of complaint in this instance is for specific performance of a covenant out of which the easement arises, since the substantial question raised by the bill and answer is whether the complainant has legal title to the easement.

It is wholly immaterial under what form of bill the question arises. The disputed question must be first settled at law and in favor of complainant before it is entitled to the relief sought by the bill. See Imperial Realty Co. v. West Jersey Railroad Co., 79 N. J. Eq. 168, and the cases there collected.

Aside from the question of Ihe present right to entertain jurisdiction the decree cannot be justified. It adjudges the complainant to be entitled to enjoy a right of way or easement for itself, its agents, servants and licensees on foot or in vehicles over the lands of the defendants and so materially broadens and enlarges the right of way or easement reserved by the covenant between the parties. Marino v. Central Railroad Co., 69 N. J. Law 628. It virtually converts a private road into a public one. The right of way covenanted for was a farm crossing to be used and enjoyed as such.

It was never contemplated that the farm crossing was to become, in the course of lime, a public road, between farms plotted and laid out into building lots for the benefit of the complainant or the purchasers of such lots, to be maintained by the defendants. Under the form of the decree, as pointed out, there is nothing to preclude the complainant from asserting the right of the use of the easement to the extent described.

The decree will be reversed, with tlie direction that the bill be retained 'in the comt of chancery and the complainant be given a reasonable opportunity to establish its title at law.

For affirmance — None.

For reversal — Swayze, Treno hard, Parker, Bergen, Min-'turn, Kalisoh, Bogert, Vredenburgh, White,' HgppenI-IEniER — 10.


author: Kalisch, J.

text:
    Eloise Mackay, complainant-respondent, v. Edward Jay Mackay, defendant-appellant.
    [Submitted March 24th, 1914.
    Decided July 10th, 1914.]
    1. In a wife’s suit against her husband, an actor by profession, for support and maintenance under section 26 of the Divorce act (Comp. Stat. p. 2038), evidence held to warrant a finding that he was guilty of refusing and neglecting to maintain and provide for her, because it appeared that he did not, according to the income he was receiving, suitably and properly provide for her, under the circumstances, and that the sum of $40 per week awarded to her for the support of her and their two children, who were in her custody, is not excessive in view of the fact that he commanded a salary of $150 to $175 per week when employed during the theatrical season.
    2. An order for a writ of ne exeat is clearly incidental to the suit and in nowise affects the merits, and an appeal therefrom not having been taken within the time prescribed by law, is not properly before the court and will not be considered at the hearing.

      On appeal from a decree of the court of chancery advised by Advisory Master Charles H. Hartshorne.

      Messrs. Smith-, Mahon é Herr, for the appellant.

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

Kalisch, J.

The complainant filed her bill of complaint against her husband, the appellant, for support and maintenance, under section 26 of the Divorce act. Comp. Stab. 1910 p. 2038.

The complainant in the bill charged her husband with having, without justifiable cause, separated himself from her and with refusing and neglecting to support her in a suitable and proper manner.

It appeared that the wife had the'eustody and care of two boys, aged two and three years, respectively, the issue of the marriage.

The advisory master found the charges in the bill proven and advised a decree directing the appellant to pay $40 a week for the support and maintenance of his wife and children.

The first ground urged by the appellant against the validity of the decree is that the court of chancery was without jurisdiction to make a decree in favor of the wife.

This claim is based upon the assertion of counsel of appellant that the evidence adduced before the master does not support a finding that there has been a neglect or refusal on the husband’s part to maintain his wife.

We think the evidence is ample to support the finding. The husband, without justifiable cause, abandoned his wife, leaving their two children with her. He is an actor by profession, and when employed during the theatrical season of forty weeks earns from $150 to $175 a week. It appears that while earning $150 a week he was paying his wife for the support of herself and children about $110 a month. At first he paid his wife $1.50 a day, which was increased to $15 a week, the rent, coal and gas bills being paid by him. Out of the $15 the wife was to provide all other necessaries of life. The wife had no other source of income, had no means of her own and was in ill health.

We think the evidence warranted a .finding that the husband was guilty of refusing and neglecting to maintain and provide for his wife, in the sense in which the words are used in the statute, upon which her bill is founded, because it appeared that the husband did not, according to tire income he was receiving, suitably and properly provide for her under the circumstances.

It is also urged that the amount of $-10 a week for the support and maintenance of the wife and children is excessive.

In view of the fact that the appellant’s standing in his profession is such that he commanded a. salary of $150 to $175 a week when employed during the theatrical season, we do not think the amount -fixed is excessive.

Lastly, the appellant appeals from an order for ne exeat, made and filed in the cause, on the 3d day of September, 1913, and the notice of appeal was filed on the 21th day of January, 1914, more than four months after the order was filed. Section 111 of the Chancery act (Comp. Slal. 1910 p. 450), among other things, requires that “all appeals except from final decrees shall be made within forty days after filing the order or decree appealed from.” This clause of the section of the act was construed, by this court, in Decker v. Ruckman, 28 N. J. Eq. 614, to mean such orders and decrees relative to pleadings and adjudications merely incidental to the suit and not affecting the merits, and as to those, that they were conclusive, except when appealed from within forty daj'-s.

‘The order for ne exeat was clearly incidental to the suit and in no manner affected the merits. The appeal not having been taken -within the time prescribed by law, the matter is not properly before us and will not be considered.

The decree should be affirmed.

For affirmance — The Chibe-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Tíalisoh, Bogert, Vredenburgh, White, Heppenheimer — .12.

For reversal — None.