text:
    Elihu B. Frost, appellant, v. Henry R. Carse et al., respondents.
    [Argued June term, 1919.
    Decided November term, 1919.]
    1. A voting trust of a submarine boat corporation formed from the aggregate stockholders to preserve the identity of those who formed and developed the company, and to protect the stock 'from purchase by German government agents during the world -war, removes it from the category of illegality.

      2. In a suit by a trustee of a voting trust to remove a co-trustee, evi•dence that the defendant refused to serve as a director if the plaintiff was chosen on the board, and therefore required the voting trustees to choose between him and the plaintiff — Held, insufficient to show that the defendant had acted only with a view to his own aggrandizement, or that his conduct militated against the interests of the stockholders of the company.
    3. An expenditure by a trustee of a voting trust to an agent to secure contracts with the United States navy for the construction of submarines, paid by the trustee individually — Held, not a misapplication of trust funds, and the fact that such agent was a blood relative of a prominent official, was not evidence of such a debasement or corruption of public officials as to warrant 'his removal at the suit of a co-trustee.
    4. In a trustee’s suit to remove his co-trustee, where prodigality was charged, and appropriations were made with complainant’s assent of $50,000 annual salary to defendant with a bonus of $75,000; of a salary to complainant of $25,000, with a bonus of $130,000, and equally extravagant salaries to others, the equitable doctrine of clean hands is not inapplicable, and in any event, the parties being in pwri deliete, equity will leave them where it finds them.
    5. A trustee may not be removed at the suit of a co-trustee where no reasonably, positive and convincing proof has been produced to substantiate allegations of extravagance or corruption.
    6. In the absence of a corporate request for such action, the corporate power to fill a vacancy caused by the death of a trustee cannot be taken from the corporation and voluntarily assumed and exercised by the court.
    On appeal from a decree of the court of chancery advised by Vice7Chaneellor Lane, whose opinion is reported ante p. 62.

      Messrs. McOarter & English, and Mr. Maurice Derches (of the Yew York bar), for the complainant.

      3fessrs. Pitney, Hardin & Skinner, for the defendants Carse, Sutphen and Dawson.

      Messrs. Stein, Stein & Hannoch, for Submarine Boat Corporation.
   The opinion of the court was delivered by

Minturn, J.

The facts in this case are adequately contained in the report of the opinion of the learned vice-chancellor in 91 N. J. Eq. 52. The bill was filed by complainant, a co-trustee, primarily against the defendant Carse, to procure his removal from a voting trust of the Electric Boat Compaq, and the Submarine Boat Company, upon the ground generally that in the direction of the companies’ affairs he, by his unscrupulous and unconscientious dominance, had been unfaithful in the performance of his duties. Frost had acquired in the early eighties, with some friends, the control of the original submarine, the dubious product of the fertile genius of John P. Holland. At nearly every stage of its development, Frost was its mainstay and support, and has been in this litigation appropriately termed its Deus ex machina.

He nurtured it from infancy and introduced to its membership men of wealth and standing, in the financial world, and in naval circles, and procured contracts in the face of an atmosphere of jocularity and doubt, which looked askance upon the practicability of the scheme. Among others, in his dealings with the Hanover bank, he met the defendant Carse, and confided in him to such an extent that when Carse was not a director in the company he was urged by Frost to become its adviser and consulter.

Up to a period in 1916 Frost and Carse were upon intimate terms of friendship; a friendship which induced Frost to urge Carse for the presidency of the company, “because,” as he wrote him, “I consider you the best man for the position, and hence my stock will be more valuable,” and he therein advocated the payment to Carse of an annual salary of $50,000. Whatever happened between the two after that period is not sufficiently in evidence, but manifestly it was sufficiently acute to induce Carse in 1916 to decline to serve upon the board of trustees with Frost, so that the board retired Frost, and his do-trustee, Johnson, and elected others in their places.

The European war opened up¡ a new and luminous vista to the trustees, and under its impetus, submarines were constructed for Great Britain, the United States and Chile, and the stock of .the corporation, which went without purchasers upon the street at ten, now found willing investors at four hundred forty and more.

The voting trust was formed from the aggregate stockholders, to preserve the identity of those who formed and developed the company, and to protect the stock from purchase by German government agents. It was constituted of stockholders, the men who had nurtured the corporation from an era of uncertainty, to a status of highly successful recognition in the business world.

In that respect, and because of that fact, the voting trust is taken out of the category of illegality, which condemned the voting trusts in Warren v. Pim, 66 N. J. Eq. 353, and Cone v. Russell, 48 N. J. Eq. 208, upon which counsel for the appellant rely.

Into this situation of assured prosperity, the personal differences existing between Frost and Carse were injected. In the earlier days of suspense and uncertainty Frost and Eice, his financial coadjutor dominated, but with the passing of the lean and hungry years, and the advent of prosperity, Carse presents himself in the record, as the dominating factor of the enterprise. He had surrendered a position as vice-president of the Hanover bank, at a large salary, at the instance of the complainant, and his co-trustees, to accept the presidency of the corporation. He had rejected the offer of $50,000 annual salary and accepted the place at the reduced salary of $30,000 and his share of a bonus, which in practical effect meant a liberal share of the earnings of the company. When the personal trouble between the two acutely developed, Frost in 1917 filed a suit in the supreme court of New York, for the removal oí Carse, upon grounds substantially similar. to those here presented. That suit was allowed to lie dormant and this action was instituted. The vice-chancellor decided to dismiss the bill, and from that decree this appeal has been taken. It is insisted that the removal should be ordered because Carse participated in the distribution of the bonus in 1915 among the executive officers. To this Carse might properly reply Tu quo que, and a court of conscience would leave the parties concededly in pari delicto where it finds them.

For over a year Frost, who' was a party to the distribution, remained silent upon the subject, and he admits that he received a bonus of $130,000, and states that he regrets he did not receive more. With the legality of that act we are not concerned in this proceeding. In an appropriate proceeding the stockholders may have their remedy.

It' is insisted also that for purposes of his own, Carse manipulated the affairs of the company, and the actions of his co-trustees with a view only to his own aggrandizement.

We agree with the vice-chancellor that the testimony in the ease fails to support this allegation. It is insisted that Carse manipulated the action of his co-trustees at the annual election in 1917, and to that end voted for himself as a director. Unless his presence upon the .board was inimical to the best interests of the company, and there is no evidence of the fact, we know of no rule of law which imposed silence or inaction upon him as a director and trustee of the corporate affairs, when the question practically was whether he would continue to devote his ability and experience to the company’s affairs; and it must be recalled in that connection that his presence on the board after 1916 was due to no personal intrusion, but to the fact that he insisted upon a choice between himself and Frost. To this his co-trustees assented. They could have accepted the alternative of Frost, but they declined to part with Carse. Spear, one of the trustees, substantially declares that Carse had no ulterior purpose in his conduct of affairs, and that only the best service to the corporation actuated him. It nowhere appears that the conduct of Carse militated against the interests of the stockholders or the interests of the company, and the controversy, therefore, is practicially reduced to the personal equation of argumerdum ad hominum.

But, the major allegation of the complainant is one based upon reasons of public policy, which seeks to attribute to Carse as a part of his modus opermdi, the debasement and corruption of public officials in an effort to obtain contracts at Washington for submarine boat construction.

The company was experiencing trouble in the execution of contracts with the navy department at Washington. Tlie officials of the company seemed unable to solve the difficulty, and at that juncture Ross McAdoo was injected into the situation. Carse had known McAdoo for some years and was cognizant "both, of his ability and his impeciiniosity. In the eyes of Carse, at that moment, apparently, MeAdoo’s greatest qsset was centred in his name. He was the brother of a distinguished statesman, whose name and genius haye been indelibly impressed upon one of the greatest engineering accomplishments in history; and whose record for public probity and integrity was never questioned.

Ross McAdoo was in need of funds, and the submarine corporation in Carse’s diplomatic and business eye was in need of Ross McAdoo. A new modus operandi was thereupon arranged by Carse, with the concurrence of Erost, whereby Ross McAdoo should serye as an emissary of the company at "Washington. This experience cost Carse over $40,000, for which he took Ross McAdoo’s notes. It cost the company nothing. The complainant presents it as one of the bases for his complaint, upon the ground that it was extravagantly lavish, and a misapplication of trust funds, for a corrupt purpose. Ross McAdoo- has; not been produced, but it is noticeable that in his suit against the corporation in New York state for compensation he predicates his claim upon a promise of Erost as a trustee to pay him $100,000 for his services; Erost has not denied this, and it indicates his estimate of McAdoo’s ability and power of service at that period.

The record shows that Erost was cognizant of payments to McAdoo, and never complained so as to make his complaint a basis for legal or equitable action, until his differences with Carse, in 1916 and 1917, suggested the alleged illegality of this; transaction. His insistence now is, that public policy abhors an expenditure, which has as its basis the corruption of public officials. No evidence of such corruption is given, except a statement made by Carse to Erost, which Carse denies making. In any event, the record shows that it was Carse’s money which was expended upon McAdoo’s venture, from the receipt of a bountiful bonus which he received jointly with complainant and his co-trustees, and ivhich he was free- to expend ad libitum,

Ross McAdoo, besides applying a large portion of it to- the payment of judgments against himself, occupied a representative status in Washington life which, in the modern -business eye, as well as Ms own, necessitated a liberality of expenditure commensurate with the character and dignity of his undertaking.

He lived at a high-class hotel, and there received his business callers in the modern business fashion of whetting their mentalities and dispositions to the friendly reception and -discussion of the business in hand, by the prelude of an inviting display of gastronomic liberality and hospitality.

To- do this adequately upon tile contribution he received, and out of the same liquidate his judgment indebtedness, and maintain himself in a sphere comporting with the part he was to assume, as the representative of a corporation which numbered among its stockholders an Austrian Count, and a member of the British aristocracy, would require at least the princely sum he says was offered him by Frost, rather than the .sum he actually received as the private contribution of Carse.

' It may be safely assumed that the possession of that concession conferred upon Ross MeAdoo., neither the moans nor the inclination to assume a role of profligate and corrupt prodigality, made famous and infamous by the iniquities of Warren Hastings in the Carnatic.

If this situation constituted evidence of prodigality with corporate funds of Carse, what shall be said of the appropriations made with complainant’s assent of $50,000 annual salary to Carse with the bonus, of $75,000; of a salary of $25,000 to himself and a bonus of about $130,000; $25,000 salary to Spear; $20,000 to Davison; $12,000 to Sutphen; $10,000 to Johnson, besides their shares of the bonus from an appropriation for that purpose, amounting to $400,000 of the corporate earnings?

In such a situation the equitable doctrine of clean hands is not inapplicable; and, in any event, the rule is familiar that the parties being in pari delicto, equity will leave them where it finds them. Edgar v. Fowler, 3 East 225; Wheeler v. Sage, 1 Wall. (U. S.) 518; Manhattan Medical Co. v. Wood, 108 U. S. 218; Craft v. McConoughy, 79 Ill. 346.

In such a situation reasonably, positive and convincing proof must be adduced to substantiate the allegation either of extravagance or corruption, as the basis for the removal of a trustee, and the ease at. bar presents'no such evidence. At most, we perceive in th.e case a controversy between 'two .conflicting individual interests, and not an inquiry originated by or intended to sub-serve the corporate or stockholding interests, and in that light we have dealt with the situation.

The vice-chancellor deemed it. necessary to suggest in. his opinion the appointment by the court of a trustee to fill a vacancy caused by the death of one of the trustees.” "

In the absence of a corporate request for such action, we fail to perceive upon what 'legal principle the power to fill the vacancy can be taken from tile corporation and voluntarily assumed and exercised by the court.

The decree appealed from will be affirmed. .

For affirmance — Ti-ie Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalisch, Heppenheimer, Aokerson-^8.

For reversal — Parker, Black, Wi-iite, Williams, Taylor, Gardner — 6.


source: Caselaw Access Project

author: Kalisch, J.

license: Public Domain

text:
    Albert C. Wall, administrator of F. Augustus Heinze, deceased, &c., complainant-appellant, v. American Smelting and Refining Company et al., defendants-respondents.
    [Argued June 26th, 1919.
    Decided November 17th, 1919.]
    1. An intestate’s beneficial interest in a royalty agreement with a foreign mining corporation, pledged to secure his debt to a New Jersey corporation doing business in New York, the place of primary administration where the claim secured might be enforced — Eeld, to constitute assets in New Jersey for the purpose of auxiliary administration.

      ' 2. Under section 29 of the Orphans Court act, where there is a domiciliary administrator, the application for letters auxiliary must comp from such administrator, and if he fails to- make the application within sixty days after the death of his decedent, a creditor or relatiye may do so upon notice to the domiciliary administrator, unless the lattpr waives the right to administer, which is equivalent to notice.
    3. A bill by an auxiliary administrator to- impress a trust upon assets in New Jersey, will be dismissed where the proceedings are not necessary, and are npt instituted in good faith, the dojnipiliary administrator being able to sue, and there being no bona, fide creditors within this state.
    4. In a suit by an auxiliary administrator to impress a trust upon assets pledged by an intestate to secure a debt to a New Jersey corporation, evidence held, to show that the proceedings were not instituted in good faith, and that there were no bona fide creditors within this -state.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, and reported in 90 N. J. Eq. 469.

      Messrs. Vredenburgh, Wall & Carey and Mr. FroMlelin Bien (of the New York bar), of counsel for appellant.

      Messrs. Treacy & Milton, for the respondent the American Smelting and Refining Company.

      Mr. Albert I. Drayton, for the respondent the Miners Smelting Company.

      Mr. Gilbert Collins, as amicus curice, for Mr. Fullerton, primary administrator.
   The opinion of the court was delivered by

Kalisch, J.

This is an appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, dismissing complainant’s bill of complaint. The facts are fully stated .in the opinion by the vice-chancellor. It will, therefore, not be necessary to restate them, as it will be sufficient for our purpose to allude only to those facts which are essential to illustrate the legal rale applicable to the questions raised on this appeal.

Edwin Gould had a judgment- for over a million dollars against E. Augustus Heinze, the complainant’s decedent, which judgment was entered in the county of New York, on the1 fifteenth day of October, 1914. Heinze, the judgment debtor, died at Saratoga Springs, the place of his domicile, on November 4th, 1914. Administration was granted by the surrogate of Sara-toga county to Mrs. Eleitman, a sister of the deceased, on the following day. She was removed by said surrogate on August 23d, 1916, on an application of Mr. Gould, on June 6th, 1916, and one Walter A. Eullerton was appointed in place and stead of Mrs. Eleitman. Shortly before Mr. Gould’s application for Mrs. Eleitman’s removal her brother, Arthur P. Heinze, applied to the surrogate of Hudson county for administration upon the estate of complainant’s decedent upon the ground that there was, personal property-choses in action, belonging to the estate of his deceased brother within that county, and creditors of the decedent living in this state. Although Mrs. Eleitman was still administratrix under her original appointment, and had at no time during the two years of her administration applied for auxiliary letters in this state, she gave Arthur P. Heinze, shortly before he applied for letters of administration in Hudson county, a waiver of her right to such administration.

If there were choses of action in this state belonging to,the estate of the deceased, there was no legal obstacle in the way of Mrs. Eleitman to prevent her from enforcing them. Be that as it may, she apparently did not see fit to do so. The waiver of the right to administer in this state in favor of her brother and his application for letters in Hudson county upon the grounds that there were assets and creditors in this state clearly indicate that the object sought was to prevent any assets here I from being transferred to New York, and thus fall within the j grip of the preference of the Gould judgment. But whatever' their motives may have been they cannot affect one way or • another the legal situation arising from the facts under review. Eollowing the order of events, we find that Mr. Heinze was removed from his administration and Mr. Wall was appointed administrator in the former’s place and stead. As such substituted administrator, Mr. Wall instituted the present proceeding, the object of which is to allow the New Jersey assets to be distributed among creditors and escape the preference of the Gould judgment in New York.

The theory upon which the bill was dismissed in the court below, stated in a general way, was, that there were no assets in New Jersey, and therefore no, auxiliary letters could have been properly granted by the surrogate.

With the view that there were no assets in New Jersey we cannot agree under the conceded facts of this ease.

It appears that decedent was owner of ,some stocks but the certificates were deposited in New York, and that the corporations were not New Jersey corporations. The intestate was interested in some royalties on copper ore. The Silver King Company had agreed with the intestate in 1907 to sell him crude oil for a period of years. He assigned his interest to the Miners Smelting Company, who in turn sold its interest to McGuirk, who assigned to the intestate, so that the latter became entitled to the money payable under the agreement. He was indebted to the American Smelting Company for a loan, and to secure this, he and the Miners Smelting Company pledged their interest to the American Smelting Company. The outcome of this series oí transactions is that the American Smelting Company stands in the place of Miners Smelting Company, and is entitled to the output of the ore upon paying the royalty therefor. To this royalty the estate is entitled. This constitutes assets in New Jersey within the rule stated by this court in Amparo Mining Co. v. Fidelity Trust Co., 75 N. J. Eq. 555, that the chose of action is in the jurisdiction where you would have to go to enforce it, and while this claim of the American Smelting Company might be enforced in New York, where it is doing business, it could only be enforced in some instances in New Jersey, its domicile. This conclusion, however, does not end the case, for the right of auxiliary administration is’governed by section 29 of the Orphans Court act (Comp. Stat. p. 3823), which, in ease of a domiciliary administrator, provides, inter alia, that if such administrator shall neglect for the space of sixty days after the death of his decedent to make application in this state-for-letters of administration, then upon the application of any person alleging himself or herself to have any debt or legal claim against such decedent, which, by the laws of this state, survive) against the personal representatives of parties deceased, the surrogate may issue letters of administration to such persons as he may select; and in case application is made under this section by any one except such domiciliary administrator, letters shall be granted upon such notice to such administrator. This makes it clear, that where there is a domiciliary administrator, the application for letters auxiliary must come from such administrator and if he fails to make the application within sixty days after the death of his decedent, a creditor or relative may do so, and then only upon notice to the domiciliary administrator.

It is manifest that the requirements of the provisions referred to were not strictly complied with. It may be said, however, with great force, that the fact that the domiciliary administratrix waived her right to administration was not only equivalent to the statutory notice of such application being made, but was a consenting act on her part that administration be granted in favor of the applicant.

This brings us to a consideration of two questions upon the solution of which this case must turn. First. Is this proceeding instituted in good faith? Second. Were there any bona fide New Jersey creditors? Both of these questions in the light of the facts and circumstances must be answered in the negative. As to the good faith of this proceeding. This has not been made plain to us. It is apparent that no administration in this state was necessary sincej even if it was necessary the domiciliary administratrix could sue. Mrs. Eleitman was domiciliary administratrix until she was removed on August 23d, 1916. She was appointed in 1914. In 1916, two months before Mr. Gould filed his petition for her removal, she waived her right of administration in this state in favor of her brother. It is fair to assume that she was aware at that time of Mr. Gould’s intention to apply for her removal. In her answer to Mr. Gould’s petition she tendered her resignation and consented that she be removed. Her brother was appointed administrator in this state on March 27th, 1916. She was still domiciliary administratrix. Slie had had nearly two years in which to enforce any claim the estate had in New Jersey. She was removed August 23d, 1916, and Mr. Fullerton was immediately appointed her successor. „ It is to be noted that she had divested herself of the right, as domiciliary administratrix, to apply for auxiliary let-, ters in New Jersey by her waiver in favor of her brother, which was very likely done in anticipation that Mr. Gould’s action would result in her being removed, and to forestall her successor from making such application, if he saw fit. All this appears to be part of a -scheme to prevent New Jersey assets from falling within the preference of the Gould judgment.

But an insuperable bar to- the complainant’s successfully maintaining this suit is, that there were no bona fide New Jersey creditors.

For the appellant, it is urged that the validity of the alleged claims could not be properly attacked in this suit since that was a matter which rested with the administrator, and if he did not object, it became a claim against the estate. .

This proposition is palpably unsound. In the first place, the claim must be a legal one. The status of creditor can only arise from a valid obligation of the debtor. If .there is no such valid obligation then it necessarily follows that there i-s neither a creditor nor a debtor. In fact, it appears, here, that the appellant in the courts below attempted to establish that there were New Jersey creditors and that they had valid claims against the estate. To that end the appellant produced Mr. Geer who testified that he had a claim of $250 for back salary due him from the decedent since Hovember, 1907. He does not attempt to explain why this claim remained unpaid for seven years, or why he made no effort to have it paid in decedent’s lifetime. A Mr. Schulz, who -said he had charge of the books, testified that at the time of decedent’s death there was due to Geer three months’ salary, which, if true, would make Geer’s claim $525 instead of $250. This witness further testified that he did not have charge of the books after September 30th, 1907, up to which date Geer had been paid in full, nevertheless he swears that there were three months’ salary owing to- Geer, whereas Geer says that the salary due him was $75 for October, and $175 for November, 1907. Geer claims that he had another transaction with decedent in 1909. Nothing appears to have been said then by the former to the latter about any claim for back salary, although this was a transaction in which it appears that the decedent gave Geer a stock note for the sum of $10,000, upon which note it is claimed there still remains unpaid $2,500, and which Geer assigned to the Assets Developing Company, of which corporation the complainant's predecessor, in administering the decedent's estate, was president.

If further appears, that when Geer made his claim against the estate for his back salary he had the stock note in his possession on which, according to his story, there was due him $2,500, and he makes no satisfactory explanation why he made his claim only* for the back salary. Geer further testified that he received no money from the Assets company for the note which he subsequently assigned to it.

The evidence satisfies us that neither Geer's claim for salary, nor the Assets company’s claim, on the note, is real, and that neither is a New Jersey creditor of the deceased.

The only other claim made against the estate is that of the United Copper Company, a corporation of this state. This claim is made up of two alleged claims of the Western Development Companjq a foreign corporation, of which the wife of Mr. Geer, who figures so prominently in all these transactions, is the president, and of an alleged claim of Ruth Noyes Heinze, the widow of the deceased, a resident of the State of New York. The Western Development Company assigned their claims to the United Copper Company on December 12th and 20th, 1916, and Mrs. Heinze assigned her claim to the Copper company on December 21st, 1916. These claims were filed on December 22d, 1916, with Arthur P. Heinze, who was appointed in this state on March 27th, 1916, under circumstances which have been above detailed, and who was succeeded by the appellant as such administrator on January 18th, 1917.

It cannot successfully escape notice that at the time of the decedent’s death and of the appointment of an administrator in this state there were no bona fide New Jersey creditors, and that the artificial process which has been resorted to for the creation of New Jersey creditors fails of its purpose. For the reason that there were no Iona fide New Jersey creditors the decree below must be affirmed.

For affirmance — T'i-ie Chief-Justice, Swayze, Trenci-iard, Parker,, Bergen, Minturn, Kalisch, Black, White, Heppeni-ieimer, Williams, Gardner, Ackerson — 13.

For reversal — Rone.


author: Black, J.

text:
    John William Coyle et al., complainants-respondents, v. Elizabeth C. Donaldson et al., executrices, defendants-appellants.
    [Submitted June term, 1919.
    Decided November 17th, 1919.]
    1. The words in the will of James Coyle, “the coal business now owned by me” pass and include, not only the good-will of the business, the lease-, hold interest of the land on which the coal business was conducted, the horses, wagon-s and other equipment used by the testator, in carrying on the business of coal merchant, but in addition thereto, coal on hand, cash and checks, cash on deposit in check account “James Coyle Coal,” difference between bills receivable and payable, i. e., for coal sold and delivered.
    2. The meaning and intention of the testator must be determined, not by fixing the attention on single words in a will, but by considering the entire will and -surroundings of the testator, when -he executed the will, and by ascribing to him, so far as his language permits, the common impulses of our nature.
    3. The word “business” is a word of extensive signification. It is an uncertain and equivocal expression.
    On appeal from the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 90 N. J. Eq. 122.

      Mr. John Francis Gough, for the respondents.

      Mr. James A. Gordon and Mr. John J. Fallon, for the appellants.
   The opinion of the court was delivered by

Black, J.

The bill of complaint in this case was filed in the court of chancery to obtain, among other things, a construction of the meaning of two clauses in the last will of James Coyle, deceased. The only point, however, involved in this appeal is the meaning of the words or the phrase in the fourteenth clause of the will “the coal business now owned by me,” bequeathed to the testator’s grandson James W. Coyle, Jr., and his daughter Elizabeth C. Donaldson.

The learned vice-chancellor, before whom the case in the first instance was heard, reasoning from analogy, decided the words included only the good-will of the business, the leasehold interest of the land on which the coal business was conducted, the horses, wagons and other equipment used by the testator in carrying on the business of coal merchant. We think this construction is too narrow. These words or this phrase in the will include in addition thereto the following items: Coal on hand, valued at seven thousand fifty-four dollars and thirty-eight cents ($7,054.38); cash and checks, seven hundred and seventy-five dollars and thirty-four cents ($775.34); cash on deposit in check account “James Coyle Coal,” one thousand nine hundred and seventy-eight dollars and twelve cents ($1,978.12); difference between bills receivable and payable, i. e., for coal sold and delivered, five thousand eight hundred and seventy-three dollars and seventy-three cents ($5,873.73); total in dispute, fifteen thousand six hundred and eighty-one dollars and fifty-seven cents ($15,681.57). Whether such was the testator’s meaning and intention, to use the language of this court, -as written by Mr. Justice Dixon, in the case of Torrey v. Torrey, 70 N. J. Law 673, must be determined, not by fixing the attention on single words, but by considering the entire will and the surroundings of the testator, when he executed the will, and by ascribing to him, so far as his language permits, the common impulses of our nature. If we put ourselves in the position of the testator, at the time of the execution of the will, and consider the circumstances he had in view in making the will, it seems quite clear, that the coal business was to pass, as it was then owned by the testator, as a whole, with all that pertained to it, as a going concern or business. Neither one of these two legatees had any means whatever, except what they received under the provisions of the will, and no one, perhaps, knew better than the testator himself that such a business could not be carried on successfully without some capital. To assume that the testator intended or desired to separate the stock from the business, in which it was more valuable than it possibly could be in the possession of the executrices, is both unnatural and unreasonable. The respondent, who is a son and one of the heirs-at-law, is entitled to one-third of the residuary. The .sum bequeathed to him by the testator under the terms of the will was given, “at such times and in such amounts as the executors may determine to be proper.” If these items now in dispute go into the residuaiy, the son would receive a substantial amount unhampered by any condition, whereas, all that he receives under the will is carefully guarded by the testator; such a result, it is reasonable to presume, would not have been intended by the testator. Then, too, the grandson and legatee, John W. Coyle, Jr., had been employed by the testator in the coal business since leaving school, in 1909, to the satisfaction and with the confidence of the grandfather and testator; to separate the coal business into separate parts would impair its value at least to some extent; such a result it is not reasonable to presume was either desired or intended by the testator, when he used the words “the coal business now owned by me” in his will.

The definition of the word “business,” or Hie construction given to it by the courts in other cases, is of little aid in ascertaining the intention of the testator in this case. The word is an uncertain and equivocal expression. In re Weber's Estate, 261 Pa. St. 561, 569; 104 Atl. Rep. 735; Widdall v. Garsed, 125 Pa. St. 358, 361. It is a word of extensive signification under any legal or general definition of the term. White v. Rio Grande Western Ry. Co., 25 Utah 346, 349. A word of large signification. Goddard v. Chafee, 84 Mass. 395.

The word “business” in a contract not only includes the goodwill of the business, but the money in bank and cash on hand, which came from the sale of goods, so held in McGowan v. Griffin, 69 Vt. 168. This court held that, where a testator orders his business, “brewing business,” to be carried on after his death, the funds employed in the business before his death are answerable to the subsequent creditors. Liable v. Ferry, 32 N. J. Eq. 791, 798.

The decree of the court of chancery is reversed and the case is remanded to that court, to enter a decree in accordance with this opinion.

For affirmance — Kone.

For reversal — The Ci-iibf-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON-14.


text:
    Hearsey Girvan, petitioner-appellant, v. Georgina Griffin, alias Georgina Williams, defendant-respondent.
    [Submitted June term, 1919.
    Decided November 17th, 1919.]
    A petition was filed in the court of chancery to annul a marriage on the ground that the pretended marriage was not a real marriage but was made in jest, as a vacation frolic and without willingness or consent to anything more than the formal ceremony. It is held, upon an examination of the testimony, that the evidence justifies the decree of the court of chancery dismissing the petitioner’s petition on the ground, that the parties were not married in jest.

      On appeal from' the court of chancery.

      Mr. Samuel TP. Boardmcmi, Jr.; for the appellant.
   The opinion of the court was delivered by

Black, J.

- The petition in this case was filed in' the court of chancery to have the'marriage of the petitioner on August 16th,' 1917, declared null and Void, on the ground, that the pretended marriage was not a real marriage, having been made in jest, as a vacation frolic and'without t willingness or consent to anything more than the formal ceremony.

The case was heard in the first instance by a special master. He reported to the chancellor that the petitioner was not entitled to the relief prayed for and recommended that the petition be dismissed. The master’s report was reviewed by one of the vice-chancellors. He approved thé report and concurred with the master. The-proof shows that the parties were not married in jest. A short resume of the testimony produced before the master will show that the decree of the court of chancery should be affirmed. At the hearing the petitioner was sworn, also, Ethel Maj Scholl, a chum of the defendant, one of the witnesses at the marriage ceremony, Rev. Walter Earle Lcdden, the clergyman who performed the ceremony, and Sarah E. Hindley, a witness to the marriage license, with whom the defendant was boarding, during the summer at Belmar. Two witnesses to the marriage ceremony, Mr. Chapin and Mr. Shattuch, were not produced as witnesses. The testimony of the other three witnesses produced at the hearing relate to collateral facts only. The petitioner and the defendant knew each other since November, 1914. The defendant was staying at Belmar, New Jersey. The petitioner went there on Saturday, August 11th, 1917. He sent the defendant a special delivery letter stating that he was coming. As soon as he arrived at Belmar he went to her boarding-house just to let her know that he had arrived. On Monday afternoon, the 13th of August, the petitioner made plans to go home. They had lunch and the petitioner said to the defendant, “I have to go back to work,” and she said, “Why don’t yon take a vacation ?” I said, “I can’t take- a vacation. The only way I could get a vacation is to take a fireman’s job- or get married.” She said, “Why don’t you get married?” and I said, “Who? Why don’t yon and I get married?” She said, that is the way it first started. That night they took out a license to marry. On the following Thursday evening, August 16th, at eight-thirty, the marriage ceremony was performed by Rev. Walter Earle Ledden, a minister of the, Methodist Episcopal Church, at Belmar, Mew Jersej1, in the presence of three witnesses brought by the parties to witness the ceremony. The petitioner and 'defendant have never had marital intercourse. They have never lived together. The petitioner has never contributed anything towards the defendant’s support, and she has never made any claim for support. The defendant did not appear at the trial to give testimony, nor was she represented. The witness to the ceremony, Ethel May Scholl, and the Rev. Walter Earle Ledden, the minister who performed the ceremony, detailed the circumstances attending the marriage ceremony. On this testimonjq the learned vice-chancellor^ who reviewed the case, concurred with the master, the proofs showing that the parties were not married in jest. There is nothing in the -surrounding circumstances to indicate jest. All there is of testimonj', is petitioner’s statement, which amounts to nothing more than his present opinion, as to the effect of what was done. There is nothing at all to indicate that the defendant regarded the ceremony as a joke, or that it was so regarded by those who participated in it; the one witness present who was produced and gave evidence and the clergyman who performed the ceremony did not think they were participating in a joke. With this conclusion of the master and learned vice-chancellor we concur. See McClurg v. Terry, 21 N. J. Eq. 225.

The chancellor has recently held, in the case of Bolmer v. Edsall, 90 N. J. Eq. 299, that corroboration is required in suits for nullity of marriage, as well as in those for divorce from the bonds of matrimony. In this case, there was no corroboration of the petitioner’s testimony, that the marriage ceremony was performed in jest.

The decree of the court of chancery is affirmed.

For affirmance — The Chief-Justice, Swayze, Tebnci-iakd, Parker, Brrgeit, Minturn, Kalisch, Black, White, ITep-PBNHEIMER, WILLIAMS, TAYLOR, GARDNER, ÁCKEESOK — 14.

For reversal — Kong.


author: White, J.

text:
    Beatrice I. Goll, trustee, et al., complainants-respondents, v. Mary K. Stefanski et al., defendants-appellants.
    [Submitted July 7th, 1919.
    Decided November 17th, 1919.]
    1. Where a priest, to defraud his parishioner and his own ci'editor, purchased certain property with funds furnished by the parishioner and his own sister, and had the title taken in the name of the sister, unless such sister was a party to his fraud, she was entitled to the protection of her legal title to the' extent of her loan to her brother to purchase the property.
    2. Held, however, that the evidence in this ease established that the priest’s sister was a party to his fraud in placing the title in her name to defraud his creditors.
    On appeal from the court of chancery.

      Mr. Ilarrij T. Davimos, for the appellant.

      Mr. John O. Frey, for the respondent.
   The opinion of the court was delivered by

White, J.

The complainant, Goll, is trustee in bankruptcy for Francis Stefanski, la Polish Catholic priest, who was spiritual and business adviser-of a young woman, Dominika Michalewska, from whom he borrowed, or as the vice-chancellor expressed it, “took,” $.3,000 with which he purchased two houses and the lot upon which they were erected, with the express agreement that the title should be taken in the name of the young woman, Dominika, as security for her $3,000; instead of which, however, he had the title made to his sister, Mary K. Stefanski. Complainants’ claim is that the title was taken in Mary for the purpose of defrauding the creditors of Francis and particularly of defrauding the young woman, Dominika. Mary claims, however, that she is the owner of the property in fee, that she advanced the sum of $700 to her brother towards the purchase of the property at the time it was purchased and that he, at that time, owed her various other sums which she had previously loaned to him, making up the full consideration of $3,000 paid for the property. The vice-chancellor found that with the exception of the $700 alleged loan from Mary, the other pretended advances by. her were never made. After an examination of the evidence we agree with this finding, and in fact, if it had been before us, might have extended the same finding to the $700 loan.

The learned vice-chancellor was also convinced that the defendant, Francis Stefanski, had the premises in question conveyed to his sister Mary in fraud of his creditors, and particularly for the purpose of defrauding the young woman, Dominika. With this finding we agree, but standing alone it is not enough to entitle Dominika’s loan of $3,000 to priority over the $700 loan of Mary Stefanski, who holds the legal title: Unless Mary was a party to the fraud she is entitled to the protection of her legal title to- the extent of her loan. Demarest v. Terhune, 18 N. J. Eq. 532.

The question, therefore, is was Mary a party to the fraud. The vice-chancellor did not expressly pass upon this point, but an examination of the evidence convinces us that she was. Assuming that the $700 loan was actually made, the other alleged advances from Mary were fictitious and merely gotten up for the purpose of attempting to bolster up her claim for a fee-simple title to the property. Her claim to a fee under the circumstances is, therefore, a fraud, and taken in conjunction with the evident purpose of her brother at the time of the conveyance, it is sufficient we think, viewed in the light of all the other circumstances in the case, to establish the fact that Mary was a party to her brother’s fraud at the time the conveyance was made. This view, of course, besides resulting in Mary’s loss of the fee in favor of the trustee in bankruptcy of Francis, would, if the question were before us, result also in her loss of the lien given her by the decree of the court of chancery for her $700 loan, subject to the prior lien in favor of Dominika for her $2,000 loan, but this $700 loan lien item of the decree was not appealed from and is, therefore, not before us.

Upon a careful examination of all the evidence in the case, therefore, we think' that the decree should in substance be affirmed. : Through inadvertence, however, as it would seem,' the vice-chancellor appears to have assumed that the conveyance in question to Mary was made by Francis himself and that, therefore, the proper remedy was to set the conveyance aside. Such, however, was not the case. The conveyance was from a former owner direct to Mary at the instance of Francis. The conveyance should not, therefore, be set aside for that would vest the legal title in the former owner who was no party to the fraud and is not a party to these proceedings. The decree should declare a trust in favor of the trustee in bankruptcy subject to the liens as indicated in the.decree of the court of chancery appealed from and should order a conveyance accordingly.

The case is remanded to the court of chancery in order that the decree may be technically modified as above indicated, and subject to such modification, the decree is affirmed, with costs.

For affirmance — Ti-ie Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Blaók, White, ITep-PENI-IEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON-14.

For reversal — None.

For modification — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, ITeppeni-ieimer, Williams, Taylor, Gardner, Ackerson — 14.


author: Per Curiam.

text:
    Henry Hyer, appellant, v. Sophie Hyer, respondent.
    On appeal from a decree in chancery.

      Mr. Addison P. Rosenkmns, for the appellant.

      Mr. Albert Comstock, for the respondent.
   Per Curiam.

This is a suit foil divorce brought by a husband against his wife, his complaint being that she had been guilty of a willful, continued and obstinate desertion for a period of two’ years prior to January 23d, 1917, the date when the petition was filed. The proofs showed that the defendant had left her husband’s home in December, 1912; that they remained apart until the following September, when he visited her at Bridgeport, where she was then living, and spent two* days at her home, during which time they resumed marital relations. At the end of his visit he returned to his home at Little Palls, New Jersey, and ■since that time they have continued to live apart.

Our examination of the testimony leads us to the conclusion that the wife was not solely to blame for the breaking up of the family home, but that, on the contrary, his treatment of her during their life together was a contributing cause of their separation. During the periods from September, 1912, to December, 1913, he made reasonable effort to induce her to return to him, and we are inclined to think that the wife was wholly responsible for the continuance of their separation during that period; but in view of. the fact that they resumed marital relations at the date last mentioned, the period of time preceding such resumption cannot be considered to be a part of the two years of willful, continued and obstinate desertion required by the statute. Tracey v. Tracey, 43 Atl. Rep. 713. The duration of time -between their resumption of marital relations and the filing of the petition is ample to entitle the husband to the divorce sought, provided the wife alone was responsible for their living apart during that time; that is to say, provided she was guilty of a willful, continued and obstinate desertion. That she was the deserting party is conceded; that the desertion was willful and continued is not denied; but the proofs will not justify the conclusion that this desertion was obstinate, within the meaning of the statute. In Hall v. Hall, 60 N. J. Eq. 469, we pointed out that it was entirely settled that a desertion in order to be obstinate must be persisted in against the willingness of the injured party to have it concluded; and that when the husband has by his conduct toward his wife contributed in any degree to her original desertion, the law requires that he should evidence that willingness by making such advances or concessions to his wife as might! be reasonably expected to induce her to return to him. The case fails to show the making of any such advances or concessions by the husband to the wife subsequent to September, 1913, when they resumed marital relations. On the contrary, a reading of the evidence makes it reasonably clear, not only that he was derelict in the performance of this obligation, but that he was content to have the separation continue. This being so the court of chancery property refused to grant him a divorce.

The decree appealed from will be affirmed.

For affirmance — Tub Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppeni-ieimer, Williams, Taylor, Gardner, Ackerson — 14.

For reversal — None.


text:
    Helen Clarke Matthews, petitioner-appellant, v. Clarence D. Matthews, defendant-respondent.
    [Submitted July 7th, 1919.
    Decided November 17th, 1919.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 107 Atl. Rep. 480.

      Messrs. Vredenburgh, Wall & Carey, for the appellant.

      Mr. Oscar B. Redraw, for the respondent.
   Per Curiam.

The suit was for divorce on account of alleged desertion. Vice-Chancellor Backes, who heard the case below, after examination of the evidence, came to the conclusion that petitioner had not shown that she was entitled, under the rules laid down in this state, to the divorce prayed; and, accordingly, dismissed the petition. Our own examination leads to a similar result. The decree of the court of chancery is therefore affirmed. .

For affirmance — Swayze, Trenchard, Parker, Kalisch, Black, Williams, Ackerson — 7.

For reversal — Bergen, Minturn, White, Heppenheimer, Taylor — 5.


text:
    William B. Loudenslager, respondent, v. John Stafford and Ambassador Hotel Corporation, appellants.
    [Decided November 17th, 1919.]
    On appeal from a decree of the court of chancery, reported in 91 N. J. Eq. 1.

      Mr. Norman Grey, for the respondent.

      Mr. Clarence L. Cole, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Swayzb, Trenchard, Parker, Kalisot-i, Heppeni-ieimer, Williams, Ackerson — 8.

For reversal — Bergen, Minturn, Black, White, Taylor, Gardner — 6.


text:
    William B. Loudenslager, respondent, v. John Stafford and Ambassador Hotel Corporation, appellants.
    [Decided November 17th, 1919.]
    On appeal from a decree of the court of chancery, reported in 91 N. J. Eq. 1.

      •Mr. Norman Grey, for the respondent.

      Mr. Gla/t'ence L. Gole, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Swayze, Trenci-iard, Parker, Bergen, Kalisch, Heppenheimer, Williams, Aokerson — 9.

For reversal — Bergen, Minturn, Black, White, Taylor, Gardner — 6.


text:
    Morristown Trust Company, complainant, v. Elizabeth Safford et al., defendants.
    [Decided November 17th, 1919.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, and reported in 90 N. J. Eq. 22.

      Messrs. King & Vogt, for the complainant.

      Mr. Edkuao-d K. Mills and Mr. John A. Bernhard, for the defendants.
   Per Curiam.

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

For affirmance — Ti-ie Ci-iiee-Justice, Swayze, Trenoi-iard, Bergen, Minturn, Kalisci-i, Black, White, I-Ieppeni-ieimer, Williams, Taylor, Gardner, Ackerson- — 13.

For reversal — -None.


text:
    Clement E. Eckrode, appellant, v. Endurance Tire and Rubber Corporation of New York, respondent.
    [Decided November 17th, 1919.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, whose opinion is reported in 90 N. J. Eq. 129.

      Mr. August C. Streittvolf, for the appellant.

      Messrs. GoEins •& Corbin, for the respondent.
   Per Curiam.

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

For affirmance — Trenchard, Parker, Bergen, Minturn, Black, Wi-iite, Heppenheimer, Williams, Taylor, Ackerson — 10.

For reversal — Swayze, KalisciI — 2.


text:
    Ella S. Smith, respondent, v. Ernest N. Smith, appellant.
    [Decided November 17th, 1919.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Poster, who filed the following opinion:
    “About October 25th, 1916, conclusions were filed by me in this cause in which a decree was advised in favor of petitioner on the ground of extreme cruelty. Thereafter, in December, 1916, defendant presented his petition in which he alleged that he had learned since the hearing of the case, that during its pendencji', petitioner had been guilty of improper conduct with one William H. Lyons, and thereupon the entry of the decree in petitioner’s favor was stayed, and leave was granted to defendant to file a cross-petition for divorce on the ground of adultery alleged to have been committed by the petitioner with one William H. Lyons, at various places and at various times between April 20th, 1915, and July 4th, 1916; and the case was re-opened and evidence submitted in support of the allegations of the cross-petition. The petitioner offered no evidence and her counsel informs me that about the time the case was reopened, she became broken in health and friends provided money for her to go to Kansas City, and she has written that for the first time in years she is happy with her child and that her mind is at rest and that she will have nothing more to do with this case.
    “In support of his charge defendant has filed several affidavits, including one of William H. Lyons. These affidavits were taken without notice to Mrs. Smith or her counsel, and I am at a loss to understand why they were filed or are relied upon in any way, and I have ignored them in my consideration of the case.
    “Prom the evidence offered, it appears that while the case of the petitioner against the defendant was pending and being heard, she and her counsel employed a detective named William H. Lyons to obtain evidence against her husband and to protect her and her little girl, as she feared that her husband would attempt to' take the child from her. Lyons called on her at her home frequently, sometimes daily, both in the daytime and at night, dnd she told several of her neighbors that he was a detective whom she had employed, and who was preparing papers for her; that she was assisting him in his detective work and that she and her father, who lived with her during part of this time, had employed him as a guardian for herself and child.
    “Sometimes Lyons would be accompanied by Mr. Eomine, petitioner’s counsel, and sometimes the latter would call on petitioner and take Lyons away with him, and while these visits were being made Mrs. Smith is said to have told one of her neighbors that she thought a great deal of Lyons and would marry him if he were not married. While petitioner was living at Irvington with her father and child, under the name of Sutphen (which it is claimed is her maiden name which she assumed for the purpose of concealing her whereabouts from her husband), Dr. Simons treated Lyons at her home for a boil on his chin; on two occasions, between eight and nine o’clock at night, he found Lyons in bed, clothed in a bathrobe, and that Mrs. Smith told him her name was Smith, and that Lyons was a state detective whom she was assisting in his cases; and he was introduced by petitioner to her father.
    “Petitioner was away from her home in Morristown for several days prior to and including July 4th, 1916, and she told one of her neighbors that she bid spent the time in New York and C'oney Island, and it appears that on June 29th, 1916, a man and woman engaged a room at the Oriole Hotel, Coney Island; they are said to have registered as ‘Wm. F. Edwards and wife, Summit, N.’ J.,’ at about three twenty-five p. m., and to have been assigned to room Fo. 14, and that they remained at this hotel until noon of July 4th. The registration was made by Mr. Edwards, and the woman who had charge of the registry and office states that the hotel had either thirteen or fourteen bedrooms, that it was located on the beach and that she also attended to the bath houses; that she knew Mr. Edwards because about two years before, in 1914, he had called at the hotel and got acquainted with a. few people in the hotel, and that he then had his young nephew with him; that on his arrival he introduced the woman with him as his wife; and from photographs she identifies Mrs. Smith as the womdn, and Mr. Lyons as the man.
    “The registry book also shows that on September 14th, 1914, Charles Edwards and wife of Summit were assigned to room No. 14, and again on September 18th, 1914, to room No. T4, and that on October 5th, 1914, Charles Edwards and wife, of Summit, registered again; but the woman in charge of the registry did not know if this was the same Edwards who registered in 1916 and was assigned to room No. 14.
    “This witness was interviewed by Edwards and one of Mr. Smith’s attorneys in January, 1917, and she was shown the photograph of a woman whom she identified as Mrs. Edwards, and who it is claimed was Mrs. Smith; and Edwards then asked her if she remembered the time that he and his wife had stopped at the hotel, and when she replied she did, he asked her to sign an affidavit to that effect, which she did.
    “The chambermaid who had charge of room No. 14 identified Edwards and the woman who accompanied him from photographs of Lyons and Mrs. Smith, although she states she forgets his appearance, and the best of her recollection is that she guesses the photograph of Lyons shown her is that of the man Edwards; she saw them in the room the day they arrived, and saw them go in and out. Mrs. Reilly, who had a candy stand opposite the hotel, states that in the summer time, she does not state the year, Mr. Edwards introduced a woman to her as his wife, when they bought some candy from her. She recognizes Lyons’ and Mrs. Smith’s photographs as Mr. and Mrs. Edwards. She had seen Edwards twice before this occasion, possibly in 1914, when they had refreshments and drinks at the bar with her husband, and never had any conversation with him.
    “It further appears that about the conclusion of the former hearing Lyons telephoned1 Mr. Smith, asking for an interview, and informed him that Mrs. Smith was about to leave the state with her child.
    “It also appears that Lyons became angry over stories which he claimed Mrs. Smith was circulating about him and declared he was going to help Mr. Smith because he had money, and Mrs. Smith was still indebted to him for what he had done for her in the case. Lyons is said to be a fugitive from justice, and counsel on neither side have been able to locate him.
    “This summary of the proof offered to establish the allegations of the cross-petition shows an entire absence of direct evidence of the offences charged, and it is subject to this criticism: If Lyons was the man who registered at the hotel as Edwards in 1916 and was the same man who was at the hotel with his nephew, a small boy, in 1914, no reason is offered to explain why he assumed the name of Edwards in 1914 when unaccompanied by a woman. One of the photographs of Mrs. Smith, whom the housekeeper, chambermaid and Mrs. Reilly identify as Mrs. Edwards, was taken, Mr. Smith states, about ten or fifteen years before, and admittedly is not a good representation of her at the present time; and yet none of these witnesses testifying in May, 1918, have the slightest doubt of the identity of the woman whom they saw only for a few brief minutes, and in the most casual way, nearly two years before, and they are unable to recall any detail of her dress or appearance, or baggage, and only surmise that Edwards and the woman with him actually occupied the same bedroom.
    “The entry of the registry was written by the man; whether it was done in the presence of the woman does not appear; the registry sheet shows that the expression ‘& wife’ was not written on the same line with the name ‘Wm. R. Edwards,’ and the address ‘Summit, R. J.,’ but was interlined between the name ‘Edwards’ and the word ‘Summit.’ Why was this interlineation necessary? Had Lyons, as Edwards, forgotten that he was accompanied to the hotel with a woman? , The name ‘Wm. R. Edwards’ and the place ‘Summit, R. J.,’ are written in a large bold hand and were apparently written at the same time; the expression ‘& wife’ is written in much smaller letters and it was so inconspicuous that it was overlooked by me when I first examined this page of the register.
    “It is hardly reasonable to suppose that Lyons, as Edwards, had forgotten the woman he is said to have brought to- the hotel, or that he did- not consider it necessary to register her; he had sufficient space on the line on which he wrote his fictitious name and address to have entered the fact that a woman, passing, as his wife, was with him; that he failed to register her except as an afterthought, causes me to suspect that the thought of having a pretended wife with him was very much of an afterthought; in fact so long after, that I believe the interlineation was not written by Lyons until after he had his quarrel with Mrs. Smith. This was easily possible,' as the hotel people were apparently on very friendly terms with the supposed Edwards, andl knew that he was a detective; the registry book was very loosely kept and no safeguards were apparently provided that would prevent Lyons from interlining the expression wife’ at any time and on any page of the register. It is also significant that the parties who registered as Edwards and wife, of Summit, on three occasions in 1914, should be assigned to room No. 14, which Lyons and Mrs. Smith, as Edwards and wife, are said to have occupied in 1916, and little, if any, weight can be attached to Mrs. Reilly’s testimony or her identification of Mrs. Smith as the woman Edwards introduced to her as his wife.
    “Where an offence of this kind is sought to be established by other than direct evidence, the rule is well settled that the circumstances relied on to prove adultery must show both an inclination and an opportunity to commit the offence. The only evidence offered to show such an inclination on the part of Mrs. Smith is the fact that Lyons was a frequent visitor at her home, and that she seemed, to some of her neighbors, to think a great deal of him, and that she told one of these neighbors that if she could, she would marry Lyons if he were free, and not married.
    “Lyons’ visits to Mrs. Smith are explained by the testimony of her counsel who employed him and by her frequent statement to her neighbors that he was guarding the little girl so the father could not kidnap her. The alleged remark to her neighbor about marrying Lyons is not explained, but as I saw Mrs. Smith upon the stand and observed her in the court room at the former hearing, she impressed me as a nervous, high strung, temperamental woman, anxious for sympathy, and keenly appreciative of any kindness shown her, and she did not impress me as a woman of immoral tendencies or inclinations.
    “There are, without doubt, certain suspicious circumstances in the case, but mere suspicion is not sufficient to justify a decree. The proof is not convincing that Mrs. Smith ever had the inclination or the opportunity to commit adultery with Lyons, or that she was ever at Coney Island with him, and his conduct and his failure to appear and testify, tógether with the questionable hotel registry and the unsatisfactory identification of the parties from their photographs, make the case too doubtful, and with such doubts in mind, I do not feel justified in branding this woman as an adulteress.
    “I will therefore advise that the cross-petition be dismissed and that a( decree be granted to the petitioner on her petition for cruelty.”

      Mr. Elmer W. Bomine, for the respondent.

      Messrs. King & Ycgt, for the appellant.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ÁCKERSON-14.

For reversal — None.


text:
    Jennie M. Oppenheim, appellant, v. Myron H. Oppenheim et al., respondents.
    [Decided November 17th, 1919.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following opinion:
    “The bill prays that two deeds bearing date and purporting to have been acknowledged on October 3d, 1916, made by complainant and her husband to the DePeyster Realty Company — a company of which her husband holds all the stock — may be decreed to be null and void as to the complainant on the ground that her signature was, in the language of the bill, ‘obtained falsely and without her knowledge of the purport or effect of the papers and without there having been made known to her the contents or effect thereof.-’
    “In Februar]^ 1909, Mr. Oppenheim caused the realty company to be incorporated for the purpose of taking title to certain properties in New York City and Elberon, New Jersey, of which he was the owner. Deeds for the New York property were executed and recorded. Deeds for the New Jersey property were signed but not acknowledged, Mrs. Oppenheim expressing a wish at that time that Mr. Oppenheim would keep it in his own name, as it was their home and as their daughter was unmarried. To this Mr. Oppenheim acceded and the papers were put in the safe.
    “Prior to 1909 the parties had made mutual wills. Subsequently to the signing of the deeds Mrs. Oppenheim came into the possession of an inheritance and wanted the mutual wills canceled. Mr. Oppenheim consented and said he would make a new will by which he would give his wife $10,000 and an annuity. Soon afterward he requested her to come to the office and acknowledge the deeds of the Elberon property, which he still desired to convey to the Eealty company.
    “There can be no doubt that Mrs. Oppenheim went to the office and acknowledged the deeds before Miss Goodman with intent to make them effective. Her failure to remember the transaction does not counterbalance the other evidence. The certificate of acknowledgment is correct in form and Miss Goodman’s uncertain evidence is not sufficient to overcome its effect. Homeopathic Life Ins. Co. v. Marshall, 32 N. J. Eq. 103; Gould v. Hurley, 75 N. J. Eq. 512. Whether she separately acknowledged is immaterial, for the statute requiring separate acknowledgments has been repealed. P. L. 1916 p. 321. It may be a question whether a wife’s title may not now pass by delivery just as 'a husband’s title does. The fourth section of Paterson’s act {Pat. L. p. .898) provided that bio estate of a feme covert * * * shall hereafter pass by her deed’ without separate acknowledgment. That provision having been repealed, it may be plausibly argued .that the ground for holding the acknowledgment of the essence of the conveyance fails. Armstrong v. Ross, 20 N. J. Eq. 109, 118; Corby v. Drew, 55 N. J. Eq. 392; Ten Eyck v. Saville, 64 N. J. Eq. 611. As the question was not argued and as its solution does not seem to be necessary or even material to the decision, I express no opinion upon it. If Mrs. Oppenheim’s recollection, is to be depended upon she neither acknowledged nor delivered the deeds in question.
    “The complainant further insists that the deeds are voidable because 'there is a presumption of undue influence and because ■she is not shown to have had the benefit of independent advice. We are not dealing with the case of a transfer by Mrs. Oppenheim of her separate estate nor with an instrument whose provisions are complicated. Nothing is better understood by people in general than the nature of a wife’s dower. When she signed and acknowledged the deeds she did not need advice as to what she was giving up. There is not the least evidence that there was any fraud practiced or that her acknowledgment was obtained by undue influence. The parties were living together and as far as appears without, at that time, any thought of separation. The conveyance is to a company of which her husband owned the stock and it might well have been for their mutual advantage. The surrounding circumstances do not stamp the transaction as open to criticism, or as unreasonable or as at all different in principle from the multitude of eases in which wives join with their husbands in executing deeds of their husband’s properly. It seems to have been very much in the nature of a family arrangement, grounded upon what had occurred a short time previously. It does not fall within, the principle of Hall v. Ottenson, 57 N. J. Eq. 522, and I think the bill should be dismissed.”

      Messrs. Oongleton, Stallman & Hoover, for the appellant.

      Messrs. Linddbury, Depue & Faulks, for the respondents.
   Per Curiam.

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

For affirmance — Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, White, Heppeni-ieimer, Williams, T'aylor, Gardner, Ackerson — 13.

For reversal — None.