author: Ackerson, J.

text:
    John Kapalczynski, complainant-respondent, v. Anna Sitniski et al., defendants-appellants.
    [Submitted March 22d, 1920.
    Decided June 14th, 1920.]
    1. A mortgage which has been, either partly or wholly satisfied may be made ¡security ,by ¡the mortgagor for a funtheir or other debt than that for which it was originally given..
    2. Where in a foreclosure suit brought by the mortgagee against the widow 'and heirs-at-law .of the1 -mortgagor, who died intestate, seized of t)he mortgaged ¡promises, the defendants claimed a .payment ran account of the principial of 'the mortgage, the tarden of proof rested upon them to prove it by a prepmideiiamce of ibhe ewdeanee, but where a .payment of a specific 'amount was admitted, auid .the m'or.tgaigeé ¡sought to load the mortgage with a rel'oam of ithe same amount, the burden was upon the mortgagee to establish the reitoan by a preponderance of .the evidence.
    3. A witness who is mot a party to the suit is hot pi-oibibited by the act concerning evidence (P. L. MOO p. S6S § 4) from testifying ais to any transaction with or statement by any testator or intestate represented in said action.
    4. Where a representative party bias testified concerning any transaction with ior 'statement .by the deceased, this opens the dolor for the mom-representative party to ¡testify concerning all transactions with and statements ¡by the person deceased, which are pertinent to the issue.
    On appeal from a decree of the court of chancery advised by Advisory Master Church.

      Mr. James P. Mylod, for the appellants.

      Mr. Frederick H. Pilch, for the respondent.
   The opinion of the court was delivered by

Ackerson, J.

This is an appeal from a decree in chancery based on the conclusions of an advisory master in a suit to foreclose a mortgage made by Frank Sitniski to the complainant, on October 13th, 1911, for $3,000, payable in one year with interest at five and one-half per cent., payable semi-annually, covering property in the town of Bloomfield, Essex county. Frank Sitniski died intestate, October 7th, 1917, seized of the mortgaged premises and leaving- a widow, Anna Sitniski, and seven minor children, the defendants in this suit. The bill of complaint alleged that there was due for principal the sum of $3,000, and interest from October 13th, 1915, and certain taxes and insurance premiums, which had been paid by complainant under the terms of the mortgage. The defence is that in the middle of November, 1913, $1,000 was paid on account of the principal of said mortgage and that interest was paid up to April 13th, 1917. At the.hearing it was admitted that taxes and insurance premiums to the amount of $188.92 had been advanced by complainant for which he was entitled to reimbursement. Complainant contended at the hearing, that while a sum of money was paid by the mortgagor, Sitniski, on account of the principal, it was not $1,000 but only $785, and that shortly after this payment was made, the same sum was reloaned again to the mortgagor with the understanding that it was to be added to and secured by the existing mortgage, thereby restoring it to $3,000.

The advisory master found that.there was due on the bond and mortgage the -sum of $3,000 principal, and interest thereon from October 13th, 1916, besides the above mentioned taxes and insurance premiums, against which he allowed a credit of $200 for moneys paid either on account of interest or principal, and the defendant’s chief grievance is with the amount found due upon the principal of the mortgage.

It seems to be settled in this state, that a mortgage which has been either partly or wholly satisfied, may be made security by the mortgagor for a further or other debt than that for which it was originally given. State Mutual Building and Loan Association v. Millville Improvement Co., 74 N. J. Eq. 721, and cases cited; affirmed, 76 N. J. Eq. 336, and therefore the complainant’s contention of a new loan on the security of the -existing mortgage, if true in point of fact, would be well founded in law.

The question involved in this ease is one of fact, being the determination of the correct amount due on the mortgage, and it is therefore essential to determine where the burden of proof rested. Payment is a matter of defence, and idle burden was upon the defendants to prove the payment made on account of the mortgage by a preponderance of the evidence. But -when a payment of $785 was admitted, and the mortgagee sought to load the mortgage with a reloan of the same amount, we think the burden was upon him to establish the reloan by a preponderance of the evidence.

It appears from the testimony that a meeting was held at Prank Sitniski’s house November 17th, 1913, just after he had received $2,000 from a local building and loan association, the máturing value of ten of its -shares which he owned, at which meeting complainant, Frank Sitniski, four other men and Sitniski’s wife were present. All were called as witnesses, except Frank Sitniski who had in the meantime died, and all agreed that a sum of money was paid to complainant by Sitniski. Complainant admitted the payment of $785, while Mrs. Sitniski placed it at $1,000, but later admitted that $215 was shortly thereafter borrowed back again by her husband, and that at the time of her husband’s death there was $2,215 due on the mortgage. Furthermore, it is undisputed that from the time the payment was made on account of principal, the interest paid by Sitniski was $60 semi-annually, or at the rate of five and one-half per cent, on about $2,200.

Complainant testified that a week or two after the payment of the $785 on account of the principal of the mortgage, Sitniski came to him and reborrowed the precise $785 he had so recently paid off, complainant having in the meantime hidden the money in the sclioolhouse where he was employed as janitor (although he had an account in a savings bank and also in a trust company), and complainant further stated that at the time of re-borrowing this sum, Sitniski said to him. “Let it be on the bond and mortgage. * * * If I do not give it back it will go on the mortgage.” There were no witnesses to this alleged new loan, complainant’s statement of it being unsupported, and the whole transaction was kept absolutely secret until the commencement of this suit. Of course complainant’s explanation of this secrecy is that Sitniski asked him to say nothing'about it. But Sitniski died September 7th, 1917. Why wasn’t this seal of silence removed by his death? Why was it necessary for complainant to keep silent on the subject for two years, and reveal it for the first time when he started foreclosure? We find no reasonable explanation of this, especially in view of the fact, admitted by complainant, that after Frank Sitniski’s death, complainant went to Sitniski’s widow to see what was to be done about the mortgage, and took with him a written statement (since lost) of the amount due thereon which set forth in substance that the principal due on the mortgage was $2,215. One witness, Roman Bockwaekzi, relating a conversation he had with, complainant after Sitniski’s death about the mortgage, stated that complainant told him there was $2,200 due on the mortgage besides taxes and other small items, and that he further said “with all my interest and the loan, as far as I am going to go is up to the sum of $3,000.” And this was not denied by complainant. It is impossible to reconcile this statement with his present claim of $3,000 due for principal alone, to say nothing of the considerable amount due for interest, taxes and insurance premiums. John Blum, another disinterested witness, testified that complainant told him, after Sitniski’s death, that there was $2,215 principal due on the mortgage and complainant admits that he made this statement to Blum. Furthermore, on cross-examination complainant was asked this question: “As a matter of fact, you loaned him (Sitniski) some money and the first you thought it was a mortgage, was when you started to foreclose, a few months ago?” To which he replied: “Yes.”

The burden rested upon the complainant not only to prove that he reloaned the $785 to the mortgagor, hut also that it was agreed between them that the sum so loaned should be secured by the existing mortgage and become a part of the principal thereof, and all the evidence we have on this subject is the unsupported word of the complainant as to what occurred nearly six years before between him and the mortgagor, whose lips are sealed by death, and in view of complainant’s admissions, at.a time when he- should have made a full disclosure, that only $2,215 was due for principal on the mortgage, we feel that he has not met the burden of proof required of him.

It is further urged by the defendants as a reason for reversal, that testimony was admitted contrary to the provisions of “An act concerning evidence” (P. L. 1900 p. 363 § 4), which provides that testimony shall not be

“given 'by any parity to the action ais to any .transaction with or statement by any testator or intestate represented in said action, unless the representative offiers ihimiself as a witness ran bis own b'ehiaiif, and testifies to .any .transaction' wilfcb or statement iby his testator or intestate, in Which evemt tbe other .party miay be .a witness .on bis own. betalf as to all transactions with tor statements by sucih testator or intestate, which are pertinent to tbe issue.”

But.tliis question does not seem to have been clearly- raised at the hearing by counsel for the 'defendants. A careful examination of the testimony discloses only one objection by counsel for defendants which could in any way be claimed to raise tlie question, and this was not-until after complainant had been on the stand, and defendants’ own counsel seems to have been the one who started this line of testimony. The one objection referred to was to the question a-sked of Victor Sawicki: “After this time, Mr. Sawicki, did you ever have a conversation with Mr. Sitniski?” Objection was then made by counsel for the defendants apparently without any reason being assigned therefor. In the first place the objection was premature as the witness was not asked to state what the conversation was; and in the second place this witness, Sawicki, was not a party to the suit, and, therefore, under the express wording of the statute, was not prohibited from testifying' as to any transaction with or statement by the intestate.

The defendants made no other objection after this, and defendants’ counsel proceeded to put Sitniski’s daughter and widow (two of the defendants) on the stand and examined them as to transactions with,'and statements by him at the time in question, and having done this, the door was open for complainant to testify concerning all transactions with and statements by the person deceased, which were pertinent to the issue. Christopher v. Wilkins, 64 N. J. Eq. 354. We think the defendants’ point was not well taken.

The views above expressed lead us to conclude that the advisory master should not have added the $785 to the principal' of the mortgage but should have found the true amount of principal to be $2,215 to which should be added' interest thereon from October 13th, 1916, and taxes and insuraneé premiums as originally stated by him.

The decree is reversed and the case remitted to the court of chancery to be proceeded with in accordance with the views herein expressed.

For affirmance — None.

For reversal — Tiie Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON-14.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Paul P. McLain, appellant, v. Lizzie C. McLain, respondent.
    [Decided June 14th, 1920.]
    On appeal from a decree of the court of chancery advised by Advisory Master Jolino, who filed the following opinion :
    “The desertion in this cause is claimed on the ground of the refusal by the wife to allow the husband to have sexual intercourse with, her for nine years, last past, or nine years before the filing of the petition. The husband must prove her refusal and corroborate it. The mere fact that they didn’t have sexual intercourse doesn’t prove any refusal upon her part. líe has sworn to the fact that he hasn’t had sexual intercourse with her for nine years. He has attempted to corroborate it by evidence of the daughter Irene, by evidence of Mrs. Phillips and by evidence of the defendant herself. Under such circumstances, I think very slight evidence is necessary to corroborate a thing of this sort, and it might be that the evidence of the daughter Irene is a sufficient corroboration of the fact that there has been no sexual intercourse; but it certainly doesn’t corroborate the fact that the wife refused to let him have sexual intercourse or that she abstained from letting him have sexual intercourse for good reasons. An attempt has been made on the part of the petitioner to corroborate this by a witness by the name of Phillips. Her testimony was that the wife had stated these facts to her about four or five 3rears ago. That might prove it up until four or five years ago, but it doesn’t prove that she hasn’t had sexual intercourse with him from that time down to the present time, therefore, it is not sufficient corroboration.
    “The case of Garrett v. Garrett, decided by the chancellor and found in 86 N. J. Eq. 293, holds that a confession of the party against whom a charge has been made, or the testimony of a. witness to whom that confession was made, is not legal evidence, and it must be corroborated by some evidence of the fact itself and not by evidence of the admission itself. Therefore, that is not a. sufficient corroboration.
    “The-petitioner then called the defendant upon.the stand, and she has admitted that she has not had sexual intercourse with her husband for nine years. Garrett v. Garret, being the law of the land, that admission on her part is not a sufficient corroboration; therefore, the only corroboration in this case of the husband is the testimony of Irene, the daughter, to the fact that she has slept- with her mother for nine years last past; that the father slept in, another room; that he came into the mother’s room only to get a towel or wash cloth, and that the mother went into the father’s room for the purpose of hanging up his clothes. I understand that Irene was absent, working during the- day, and there might have been sexual intercourse during that time.
    “I understand it that there must be a refusal on tire part of the wife to let her husband have sexual intercourse with her and the husband must not only prove itj but he must corroborate it. This wife has testified that she never refused him. She has said that he didn’t have sexual intercourse with -her and she testified that he stated to her that he wouldn’t have anything to do with her except as a matter of business; that he had made other remalles, the exact wording of which I can’t recall at the present time, which, to my mind, show that the husband, if the wife tells the truth, refused to have sexual intercourse with the wife, I may say that I believe her.

      “I don’t understand that the wife must gu to the husband and beg him to have sexual intercourse with her; that isn’t necessary. If the husband wishes to have sexual intercourse with the wife, he should approach her, and while he has said he did do this, she has stated that he did not, but that he refused absolutely to do it. The burden of proof being' upon him, and he being required to corroborate it, I don’t think he has done so, and for that reason I will advise a decree refusing the divorce.
    “Since the hearing in this case, the solicitor of the petitioner made a motion for a rehearing on the ground of after-discovered evidence. The motion was heard in my office on the 28th day of September, 1918. Pie then admitted that he had no further testimony to offer. Pie then made a motion that I should advise a decree without prejudice to the petitioner. I cannot see any reason why I should do this. Were I to advise such a decree, The defendant would be placed in a state of uncertainty as to her status, which I think she should not be subjected to/’

      Mess?-s. Harris & Harris, for the appellant.

      2fr. Elmer G. Van Name, 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 Advisory Master Joline.

For affirmance — Tiib Chiee-Justice, Stvayze, Trencitard, Parker, Bergen, Minturn, Kalisoi-i, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON-14.

For reversal — Hone.


text:
    Lembeck and Betz Eagle Brewing Company, appellant, v. Mike Barbi et al., respondents.
    [Decided March 19th, 1920.]
    On appeal from the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 90 N. J. Eq. 373.

      Mr. D. Evgene Blanhenhorn, for the appellant.

      Mr. Adrian Lyon, for the respondents.
   Per Curiam.

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

For affirmance- — Tiie Chieb-Justioe, Trek chard, Minturn, Kalisch, Black, White, Taylor, Ackerson — 8.

For reversal — Swayzb, Parker, Bergen, Heppenhbimer, Williams — 5.


text:
    Florence E. Murphy, respondent, v. Harry L. Powers, appellant.
    [Decided June 14th, 1920.]
    On appeal from the court of chancery advised by Vice-Chancellor Foster.

      Messrs. Wilson & Smoclc and Mr. Maximilian T. Rosenberg, for the appellant.

      Mr. Charles F. Sexton and Mr. Joseph O. Skinner, for the respondent.
   Per Curiam.

The bill in' this case was filed to foreclose a purchase-money mortgage given by the defendant, Powers, to one Florence A. Hazard, and assigned by her to the complainant. The validity of the mortgage is not disputed, but the defendant by his answer sought to set off the value of certain personal property which Mrs. Hazard contracted to sell and deliver to him at the same time she- conveyed to him the real estate for which the purchase-money mortgage was given in part consideration, averring that the purchase-money paid at the time of the execution of the conveyance was not only for the land conveyed, but also for this personal property. The learned vice-chancellor before whom the case was heard (as well as counsel on both sides) assumed that the value of this personal property could be properly set off in a foreclosure suit, but concluded after an examination and consideration of the testimony submitted in -support of, and in refutation of the defendant’s claim, that he had not made it out by a preponderance of the evidence, and for this reason advised a decree in favor of the complainant for the full amount of Tier mortgage with interest.

Our examination of the case satisfies us that the decree appealed from should be affirmed. We refrain from expressing any opinion upon the question whether, under the fifth section of our “Act concerning set-offs” (Comp. Stat, p. 4836), damages resulting from the breach of a contract for the sale of personal property can be made the subject of a set-off in a suit for foreclosure of a mortgage. For the purpose of disposing of this appeal we have assumed that the view of the learned vice-chancellor upon this phase of the case is sound, and concur with him in the conclusion that the defendant has failed to prove the set-off upon which he relies.

The decree-will be affirmed.

For affirmance — The Ci-iief-Justioe, Swayze, Trenctiard> Parker, Bergen, Minturn, Kaliscii, Black, White, ILeppeniieimer, Williams, Gardner, Ackerson — 13.

For reversal — None.


text:
    Regina C. Weppler, respondent, v. Conrad Weppler, appellant.
    [Decided June 14th, 1920]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Baches.

      Mr. Abe J. Davicl, for the petitioner-respondent.

      Mr. Clarence D. Meyer, for the defendant-appellant.
   Per Curiam.

We arc -satisfied that the defendant abandoned his wife and neglected to maintain and provide for her, leaving it to their children to take care of her. Upon the marriage of the last child, and his departure' from the father’s farm, the petitioner was justified, under the circumstances, in going with him, and appealing to the court-of chancery under section 26 of the Divorce act. Comp. Stat. p. 2038. The amount of alimony fixed by the vice-chancellor is justified- by the evidence as to the husband’s means. The decree is affirmed, with costs.

For affirmance — The Chief-Justice, Sivayze, Trenciiaed, Parker, Bergen, Minturn, Kaliscii, Black, White, ITeppenheimer, Williams, Taylor, Gardner, Ackeéson — It.

For reversal — None.


text:
    J. Henry Leonhard et al., appellants, v. Frederick Beggs, surrogate, respondent.
    [Decided June 14th, 1920.]
    On appeal from a decree of the prerogative court advised bj Vice-Chancellor Lewis, whose opinion is reported in. 91 N. J. Eq. 298; sub nom. In re Leonhard.

      Messrs. Humphreys & Sumner, for the appellants.

      Mr. Frederick TV Van Blcurcom, 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-Ordinary Lewis.

For affirmance — Tiie Ciiiee-Justice, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisci-i, Black, White, HepPENITEIMER, WILLIAMS, TAYLOR, GARDNER, ÁOICERSON — 14.

For reversal — PTone.


author: Walker, Chancellor.

text:
    John W. Harris v. Albert K. McMurray et al.
    [Decided August 25th, 1920.]
    1. Where complainant filed a bill to foreclose the rights of. redemption in four certain parcels of land, and one of the owners of the fee thereof appeared and answered asking to redeem the lands in question, and to that end asking for proof and adjudication of the amount required to be paid by her for such redemption, the amount of search fees that may properly be included in such adjudication is fixed by statute, the maximum rate being $40 a lot, under the statute of 1909.
    2. An award of costs in chancery is discretionary with the court except whore otherwise directed by statute. In the case .at 'bar—Held, that complainant .is entitled to costs, but not including search fees, because the statute does not ¡authorize their' inclusion in taxed costs on foreclosure of tax liens; in these cases they .are collectible as part of the expenses of redemption and may be included in the decree.
    On bill to foreclose tax title.

      Mr. V. Claude Palmer, for the complainant.

      Messrs. Reed & Reynolds, for the defendants.
   Walker, Chancellor.

Complainant filed his bill to foreclose the rights of redemption in four certain parcels of land purchased by him at public sale made thereof October 28th, 1910, by the township collector, pursuant to the provisions of “An act for the assessment and collection of taxes,” approved April 8th, 1903, and the several amendments thereof and supplements thereto. The sale was for the purpose of obtaining payment of taxes assessed for the year 1907, and remaining unpaid. The record title to the four parcels in question stood respectively, at the time of the sale, in the names of four separate persons. Prior conveyances of record, however, indicate that the equitable title to all four tracts was, or may have been, owned by the heirs-at-law or devisees of one James P. Eagan, deceased.

One of these devisees, Catherine A. Eagan (the only answering defendant), appeared and answered—asldng to. redeem the lands in question, and to that end asldng proof and adjudication of the amount required to be paid by her for such redemption. Replication 'was filed, but thereafter counsel for both parties appeared and announced to the court that they had agreed that- a decree for redemption by the defendant Catherine A. Eagan be entered, upon her payment to complainant of the amount justly due to him upon such redemption. They are further agreed upon what tins amount should be, except only as follows: Complainant contends that he is entitled to receive (1) the full amount paid by him for search fees, $407.80 (being the full legal fees), and (2) complainant’s taxed costs of this suit. Defendant denies that he is entitled to either of these items.

The statute above mentioned provides, in sections 57 and 58, for the method and manner of redemption by the "owner, mortgagee, occupant or other person having an interest in the land sold for taxes”—these provisions have nothing to do with any suit either for foreclosure or redemption. The person seeking to redeem may do so by paying (prior to the cutting off of the right of redemption) to the collector of delinquent taxes of the munici-. pality in which the lands lie, a sum made up as follows:

1. The price paid by the purchaser.

2. Eight per cent, interest thereon.

3. The amount shown by the purchaser’s affidavit filed with the collector to have been paid by him for recording fees and .fees for the service of notices under the act. And

4. The fees and expenses incurred by the purchaser in ascertaining the owner or other persons having an interest in or lien on the lands (with certain limitations as to the amount of such fees and expenses).

Upon receipt of such payment, such collecting officer turns, it over to the purchaser, and gives the person redeeming a certificate of cancellation of the tax sale lien, or at the redeemer’s option the purchaser is required to execute to him an assignment of the certificate of sale.

The fourth item (above set forth) of the amount required to be paid for redemption, of course, means, or, at least, includes, search fees. As originally passed, section 57' did not contain this-item. It was first added (though not in its present form) by an amendment in 1907. Prior to that amendment the defendant, in Fitzsimmons v. Bonavita, 77 N. J. Eq. 277, being the owner of lands sold for taxes, had sought to redeem the lands sold, and had for that purpose tendered to complainant, the tax-sale purchaser, an amount covering the three items then required by the statute, but not including all or any part of the sum paid by the purchaser for search fees. The purchaser claimed to be entitled to receive these search fees, also, as a condition of redemption, and therefore refused the tender and filed his bill to foreclose. This court there held that the statute was express and certain, and that no fees or expenses other than those specialty provided for in the act could be demanded as a condition of redemption. Since the act did not then provide for the payment of any search fees or “fees and expenses incurred in ascertaining the owners” (which, for brevity, will be hereinafter referred to as “search fees”), the tender had been valid and sufficient, and complainant’s bill was dismissed.

Since then this section, 57, has been several times amended with regard to this very matter of search fees. Cf. P. L. 1909 p. 395; P. L. 1912 p. 652; P. L. 1914 p. 663, and P. L. 1916 p. 580 (the latter two amendments having apparently been overlooked by counsel for defendant). In the case sub judice the complainant purchased, as has been noted, in 1910, and defendant’s counsel contends that complainant’s rights are fixed and controlled by the statute as it existed in 1910—which was, of course, as expressed by the amendment of 1909, supra. The amendment of 1916 fixes the maximum of search fees, plus recording and service fees, a.t $10, which would limit complainant in this case to not over $40 for the four sales. Complainant’s bill was not filed until after the 1916 amendment, and it might perhaps be argued that his rights are controlled thereby. It is not necessary to decide this, however, since defendant’s contention is for the act of 1909, and this is the more favorable to complainant. For the purposes of this case, therefore, the rights of complainant will be deemed to be determined by the amendment of 1909. That enactment includes as a part of the moneys required to be paid for redemption, search fees incurred or paid by the purchaser, not exceeding, however, certain maximum rates, which applied-to the case under discussion would allow a maximum of $40 for each of the four tracts, or a total of $160 for search fees.

If, therefore, defendant had sought to redeem in the manner provided b3r the statute, and prior to the institution of complainant’s suit, she would have been required to pay in addition to the other redemption moneys, the sum of $160 for search fees, but not the balance of the sum of $-107.80 claimed by complainant in that behalf; this under the authority of Fitzsimmons v. Bonavita, supra.

And if instead of appearing and seeking redemption in complainant’s suit defendant had paid to the collector of delinquent taxes of the municipality the redemption moneys, including the $160 search fees, defendant would have been entitled to the statutory certificate of redemption, and could not have been required to include in her redemption payment the amount of complainant’s taxed costs in; this suit. Doubtless, even now defendant could make such payment to the collector and get her redemption certificate. But it is obvious that making such payment to the collector and getting the redemption certificate would not dispose of this suit and defendant having been served with process would remain subject to whatever decree should be entered herein, whether she defaulted or proceeded herein. That decree might conceivably be a decree for foreclosure, if the fact of the outside redemption did not appear in the proofs before the court—and in any event it would provide for the payment of such costs as the court deemed proper, and these costs could be collected by complainant on execution. .

Defendant, however, has not sought to redeem outside of this suit; she is asking for redemption in this suit; she asks to be permitted to pay the redemption moneys and obtain a decree of redemption. That being so, seeking equity she must do equity and must abide by the decree of this court, and, of course, she must pay to complainant the full redemption moneys provided by the statute (including the $160 on account of search fees), the court would have no right to make a decree of redemption without* such payment being made.

In the usual mortgage foreclosure suit a defendant applying to redeem after bill filed would ordinarily be required to pay complainant, in addition to the moneys otherwise due on .the indebtedness secured by the mortgage, the complainant’s taxed costs, in which would be included the fees and charges for searches actually and necessarily paid or incurred for the purpose of the action. See Keiler v. Bunn, 84 N. J. Eq. 519. Chan-eery act of 1902, section 92, as amended (1 Comp. Stat. p. 446), and chancery rule 144.

This, however, is not a matter of inevitable right in complainant. By the Chancery act of 1902, section 84, except where otherwise directed by statute, it is made a matter of discretion of this court to award or withhold costs in any case (and I know of no statute making mandatory the award of costs in any such case as the one under consideration). The Chancery act of 1915, section 6, goes further and authorizes the court to award costs and counsel fee against a successful party. So, if a mortgagee, knowing that the mortgagor was about to pay off his obligation, should hasten to file a foreclosure bill out of spite, or to obtain an extra few dollars in costs, this court is enabled not only to withhold costs from such a complainant, but to award costs and counsel fee against him, in favor of his intended victim. But no such circumstances are now present,' and I can perceive no valid reason why defendant should not be required to pay complainant’s taxed costs.

This, however, does not mean that the full search fees paid by complainant will be included in such taxed costs. I am of the opinion that no part of such search fees can be included in the taxed costs.

The present bill is not for the foreclosure of a mortgage, but of the right to redeem .lands sold for taxes; hence, it does not come within the letter of the statutes and rules relating to mortgage foreclosures. Even if it be assumed that from the cognate character of the action, the court might be disposed to adopt the same principles and practice as in foreclosure cases, a bar is found in the lack of statutory authorization. It is, of course, well settled that no items can be included in a taxed bill of costs without legislative authority therefor. The provisions of section 92 of the Chancery act authorize the taxing of search fees in the costs in only the two instances therein named, to wit, suits for partition and sale of lands and for the foreclosure of mortgages. I know of no other statute which conveys, or purports to convey, such authority in a suit for-the foreclosure of tax sale redemption, and I conclude, therefore, that complainant is not entitled to have these search fees taxed in his bill of costs. It might be possible, under the authority given by the legislature for the awarding of counsel fees, to award a counsel fee of such amount as should be deemed reasonable, to be paid by defendant to complainant, in view of complainant’s inability to obtain repayment of the excess search fees over and above the statutory allowance. But even if such a course should be possible, I am satisfied that it would not be justifiable. The legislature has expressly fixed a limit upon the amount of search fees winch a purchaser may expect to receive, or an owner be compelled to pay, for redemption, and in this particular I cannot see that there is any difference between redemption outside of this court and redemption by decree herein. Complainant’s searches have cost him no more for foreclosure in equity than they would for foreclosure by service of notice under the statute. The legislature by the fixing of this limitation has expressed the public policy of this state in that behalf and this should be adhered to.


text:
    Lena Kirschbaum, petitioner, v. Abraham Kirschbaum, defendant.
    [Decided October 13th, 1920.]
    1. An exception to the finding of a master is in the nature of an appeal to the court.
    2. An application for a rehearing in equity is the equivalent of an application for a new trial at law.
    3. An application for a rehearing in chancery is governed by principles applicable to motions for new trials after verdict in cases at law; and in order to justify a rehearing in an equity case for newly-discovered evidence, the new matter must be of such character that if it had been-heard on the trial it would probably havé changed the result and produced an opposite result, and it must be shown that the testimony sought to be introduced is iiewly-discovered evidence not accessible to the petitioner, by the exercise of due diligence, at the time of hearing.

      4. ' Application, for rehearing in chancery after decree is made by bill of review; after hearing and before decree it should be made by petition supported by affidavit.
    5. The court of its own motion and in the interest of justice will sometimes permit the taking of further testimony to legally establish what has been but insufficiently proved; but where the defeated party applies for leave to take further testimony .he must show that he is entitled.to the relief he seeks.
    6. Want of power for copulation is impotence; mere sterility is not.
    7. There is no time limit judicially ascertained within which a suit for nullity for impotence may be successfully brought and after which it must be defeated on the ground of acquiescence in the situation; and, in the nature of things, there can be no arbitrary rule on this subject; each case must depend on its own facts and circumstances.
    8. Semble: That if one institutes a suit for divorce, not from a de-
    sire for the redress sought, but to attain some collateral end, the law characterizes his conduct as insincerity and withholds the decree prayed, however much the defendant may be in the wrong.
    9. Semble: The doctrine of insincerity in divorce suits is apparently an anomaly in the law, at least it is sui generis; for it is a general principle that when a suitor is entitled to relief in respect to the matters concerning which he sues, his motives are immaterial.
    10. On the facts in the instant case, the husband’s impotence being presumed—Held, that the wife, having lived with her impotent husband for upwards of eleven years without making any explanation, must be regarded as having accepted the situation and cannot be heard to complain ; in other words, that she has by conduct ratified the marriage.
    , On application for leave to take further testimony in the nature of an application for rehearing after an adverse special master’s report in an ex parte ease for nullity of marriage.

      Mr. Jerome J. Dunn, for the petitioner.
   Walker, Chancellor.

Lena Kirschbaum filed a petition against Abraham Kirschbaum alleging that on October 15th, 1908, a form or ceremony of marriage took place between them at Newark, in this state, and that at the time of the- marriage the defendant was physically and incurably impotent to consummate the same by reason of a malformation of his parts of generation or some other physical cause, the exact nature of which was then unknown to the petitioner; that she was ignorant of defendant’s impotence at the time of her marriage to- him and had not subsequently ratified the marriage. After alleging residential status, she prays that the pretended marriage be declared to be null and void for the cause mentioned, in pursuance of the statute, and for other and further relief. The defendant was served with process of a citation and a certified copy of the petition but did not answer. The matter was referred to a special master in due course, and the petitioner was directed to take depositions and other evidence and bring on the hearing of the cause ex parte. Depositions were taken before the master, who has reported that the ceremony of marriage took place as stated in the petition, and that the petitioner has the residential qualification which would entitle her to the relief she prays. He further reports that it is proven to his satisfaction that in the month of January, 1920, at which time the defendant was examined by a physician, who was one of the witnesses, he was sterile and incurably impotent; that the petitioner testified that at the time she married the defendant he was unable to perform the act of copulation, since which time and up to the time they separated in February, 1920, he had not been able to perform the act. The witness, Dr. Parson-net, testified that in the medical profession a man in his condition is considered and called impotent; that he could not say that Kirschbaum was not able to have sexual intercourse; he could only say that he was absolutely sterile and not capable of propagation, and in the medical profession, that is impotence.

The solicitor of the petitioner insisted before the master that the testimony that impotence existed at the time of the marriage is corroborated by the testimony of the physician that the defendant was incurably impotent in January of this year, but the master reported that he was unable to agree with that contention, and that, therefore, in his opinion, the petitioner had not substantiated the truth of the allegation of her petition with reference to the cause for nullity and was not entitled to the relief prayed, and, therefore, he recommended that the petition be dismissed.

No exception has been filed to the master’s report. Had there been, the hearing before me would have been in the nature of an appeal from the master to the court. McCauley v. McCauley, 88 N. J. Eq. 392 (bottom of p. 395). Instead, the petitioner has applied for leave to take further testimony, and this in an inf orinal written communication from her solicitor to the chancellor, the pertinent part of which reads as follows:

“At the time of the hearing before the special master the petitioner undertook to show that the impotency alleged existed at the time of the marriage, but at that time was unable to produce a physician who made an examination of the defendant, Abraham Kirschbaum, as long ago as the date of the marriage. Since the time of the filing of the report my client has successfully located that physician and he is now willing to testify to the condition of Kirschbaum at the time of the marriage, and in fact there are a few more points which not only this physician will be able to clear up but which the petitioner herself will be able to do also.”

If there had been a final decree dismissing the petition the application would have had to be by bill of review. Watkinson v. Watkinson, 68 N. J. Eq. 632 (bottom of p. 633). And the application would have had to be made by petition supported by affidavit that the evidence was not only new but could not have been discovered by reasonable diligence before the hearing, and the court would have to be satisfied that the -new matter came to the knowledge of the applicant for the first time since the period at which it could have been made use of in the suit, and that it could not with reasonable diligence have been discovered sooner, and that it is of such a character that if brought forward in the suit it would have altered the judgment. Ibid, 634.

An application for a rehearing in chancery is governed by principles applicable to motions for new trials after verdict at law. Feinberg v. Feinberg, 70 N. J. Eq. 420, and Richardson v. Hatch, 68 N. J. Eq. 788. And at law they are always addressed to the discretion of the court and are not reviewable on error. Furman v. Applegate, 23 N. J. Law 28, 33; Delaware, Lackawanna and Western Railroad Co. v. Nevelle, 51 N. J. Law 333; State Mutual Building and Loan Association v. Williams, 78 N. J. Law 720, 723; De Mateo v. Perano, 80 N. J. Law 437, 438. Upon rule to show cause why a verdict should not be set aside on the ground of newly-discovered evidence, that evidence must be of such a character that it would probably change the result and produce the opposite result. Hoban v. Sandford & Stillman Co., 64 N. J. Law 426. And a constitutional court is protected in its exclusive jurisdiction of such questions by the constitution. Flanigan v. Guggenheim Smelting Co., 63 N. J. Lam 647; In re Thompson, 85 N. J. Eq. 221. While newly-discovered evidence which is merely cumulative is not ground for a new trial (Thomas v. Consolidated Traction Co., 62 N. J. Law 36; Hoban v. Sandford & Skillman Co., supra), the testimony now offered is of a kind sufficiently different from that adduced at the hearing before the master as not to be open to the objection that it is cumulative (Mulock v. Mulock, 28 N. J. Eq. 15), as Dr. Parson-net testified he coixld not say that the man was incapable of having sexual intercourse, only that he was sterile, which he denominated impotence, and it is now asserted that a physician has been found who will testify to the defendant’s condition at the time of the marriage—presumably, that he was then incapable. This presumption is indulged only for the purpose of deciding the present application on its merits. While applications for new trials are not appealable at law, they appear to be in equity. McDowell v. Perrine, 36 N. J. Eq. 632; Richardson v. Hatch, 68 N. J. Eq. 788, 793.

I could have dismissed this application off-hand, as it is not made by petition supported by affidavit, but I have concluded to treat it as being regular in form so far as the offer is substantive. I will go further and assume that the physician now offered to be produced will not only “testify to the condition of Ivirschbaum at the time of the marriage,” but that he would testify that he was. in fact impotent a.t that time. Of course, I can conclude nothing as to a “few more points” which not only the physician but the petitioner “will be able to clear up,” as there is here no disclosure of any pertinent testiniony after discovered or otherwise. However, such testimony as is offered to be produced, while not cumulative, is not after discovered within the meaning of the law.

"Now, it is distinctly alleged in the petition in this case that at the time of the marriage ceremony the defendant was physically and incurably impotent. The petitioner, therefore, knew from first to last that that allegation would have to be proved. She offered testimony falling short of proving that fact, and now that she is defeated in her application, requests the court to open the case and permit the offer of testimony which, in the nature of things, must have been as available to her by the exercise of due diligence at and before the time of the hearing as it is now after an adverse report.

The court often, of its own motion, gives leave to parties to take further testimony to satisfy the ends of justice. Holcomb v. Trent on White City Co., 80 N. J. Eq. 122 (at p. 162); Whitehead v. Hamilton Rubber Co., 53 N. J. Eq. 454. Obviously, it is one thing for the court of its own motion, and in the interest of justice, to permit the taking of further testimony to legally establish what has already been but insufficiently proved, and quite another thing to grant the request of a defeated party for leave to take further testimony in order to make a case, where the proofs submitted on final hearing have not established the issue tendered by the party. As I said, in Rinehart v. Rinehart, 110 Atl. Rep. 29, as the law" favors marriage and disfavors divorce, the court will do nothing to facilitate the latter, but will only dissolve the marriage relation where the complaining party is strictly entitled to a decree. And this, of course, applies to nullity suits. Surety suitors should not be permitted in this class of cases to experiment with the court—that is, to submit as' meagre proofs as they think will establish their cases under the law, and failing, be permitted, as matter of grace, to try their cases over again. As was said by Vice-Chancellor Grey in Richardson v. Hatch, supra (68 N. J. Eq., at p. 788), the cause cannot be tried over again because the defeated party would like to have another chance.

There is a practice in ex parte cases to permit of the taking of further testimony in numerous instances,- but the present ease does not fall within the rule. When a favorable report is made and the court in reviewing the case concludes that the testimony upon which the master based his finding does not justify it, leave to take further testimony is "frequently given. Upon the conclusion of the testimony in the master’s office that functionary may with propriety advise the petitioner that he has made a case, or that the master is not satisfied with the evidence on such and such a point, and adjournments are frequently had to permit the iietitioner to adduce evidence which will satisfy the master on the point involved. When, however, the master reports that he is satisfied that the allegations of the petition have been proved, and that the petitioner is entitled to a decree, the party may reasonably rely upon having produced sufficient evidence. And when the court, in reviewing that evidence, disagrees with the master, it is but fair, at leást in a great many instances, to permit of the taking of further testimony. But where the master’s report is adverse and recommends that the relief prayed for be denied, petitioner is obliged to file an exception within thirty days or suffer the case to be dismissed. Rule 265. Instead of filing exceptions, petitioner may, of course, apply for a rehearing, as was done in this case, the application before me being rested in part on the assertion of newly-discovered evidence. As Dr. Parsonnet’s testimony that the defendant was impotent because sterile does not prove impotence as that condition is defined and known in the law, therefore, the testimony now offered, which it is assumed would tend to prove want of power, is not cumulative.

In 2 Bish. M., D. & S. § 762, it is laid down that when from any cause irremediable inability to have copulation exists, there is a complete failure of one of the ends of matrimony, and so the marriage is frustrate. And in section 768, that in common law countries the marriage will be good if there is adequate power of mere copular, though impregnation should be impossible, and that, as Dr. Lushington held, mere incapability of connection is not sufficient ground whereon to- found a decree of nullity, and alone was so clearly insufficient that it would be a waste of time to discuss an admitted point. And in section 782, that the books of medical jurisprudence classify impotence variously, according to the differing tastes of their authors; but the classifications were not'generally on true legal distinctions and therefore of very little importance to the lawyer. This is illustrated in the case sub juclice, for the doctor testified that Ivirschbaum is impoten+ because he is sterile, while-the. law is that want of power of copula alone, and not mere sterility, is impotence.

As the matter is not before me on an exception, I am not now to pass upon the master’s finding, but will state a view which, in my opinion, shows that the proffered new testimony would not change the result reached.

The parties to tins suit were married on October 15th, 1908, and, as the petitioner testified, they lived together until February, 1920, a period of eleven years and four months. She does not say why she left him. She does say that her physician advised her that it would not be good for her to stay with him, that it was dangerous. From this it may be presumed that she left him on that account—that is, on account of some condition, nervous or otherwise, which was brought about by their unnatural relations—that of cohabitation without copulation; but if this be so that condition must have existed during all the time they lived togther, and must have been much more acute at first than at last. And the question arises, Has not the petitioner’s long cohabitation with her husband, in the circumstances, amounted to a ratification of this marriage, which is, or rather was, voidable and not void ?

In the Divorce act, which was in force at the time of the marriage of these parties, and which still obtains, it is provided (P. L. 1907 p. 475) that decrees of nullity may be rendered when

“The parties, or either of them, was at the time of marriage physically and incurably impotent; provided, the party making the application was ignorant of such impotency or incapability at the time of the marriage, or has not subsequently ratified the marriage.”

In G. v. G., 67 N. J. Eq. 30, it was held by Vice-Chancellor Pitney that marriage contracted by parties, one of whom was impotent, is not void but voidable merely at the instance of the disappointed party, and may be ratified by such party. The suit (G. v. G.) was brought under the Divorce act of 1902 (P. L. 1902 p. 502), wherein a decree of divorce instead of nullity was provided in case the parties, or either of them, at the time óf the marriage, was physically and incurably impotent and the marriage had not been subsequently ratified. So, we have sharply present in the case sul jvMce the question of ratificalion. Vice-Chancellor Pitney, in G. v. G., said that this subject is elaborately discussed and carefully considered in several English cases, citing them, and held that the wife in the case before him, who had lived with her husband for twenty years, and then separated from him, accepting a competent support instead of suing for nullity, • had by her conduct distinctly affirmed the marriage relation. In the first case cited by him, in G. v. G., he says that the wife’s suit was defeated because she had ratified the marriage contract by long acquiescence and support from her husband, the precise length of time not being stated. In another case; where the parties had lived together for upwards of seven years, the wife’s suit was defeated because sire had not shown two requisites—sincerity and promptness.

There is no time limit .judicially ascertained before which a suit for nullity for impotence may be successfully brought and after which it must be defeated on the ground of acquiescence in the situation, and, in the nature of things, there can be no arbitrary rule on this subject—each case must depend upon its own facts and circumstances. In G. v. M., 10 App. Cas. 171, it was held that delay in- raising a suit for nullity on the ground of impotency is a material element in the investigation of a case which upon the facts is doubtful; but there is no definite or absolute bar arising from it; and Lord-Chancellor Selbome observed (at p. 189) that any definite or absolute bar arising from a certain amount of time cannot be established by authorities. And Mr. Bishop- says, in 2 Bish. M., D. & S. § 420, that a great delay must in some way be accounted for or it will bar the suit, because in the absence of explanation the court will not meddle with what the party complaining shows by conduct through a considerable series of years to be no grievance. It is to be observed that the wife in the instant case makes no explanation whatever as to her reason for living, with this man upwards of eleven years, and, at this late day, endeavoring to annul a voidable marriage. In Peipho v. Peipho, 88 Ill. 438, where complainant sought a divorce thirteen years after the marriage on the ground that the defendant was a hermaphrodite, and therefore impotent, and for nearly eight years had cohabited with defendant with full knowledge and without complaint as to impotency, it was held that in the absence of strong rebutting facts he must be taken to have accepted the situation and could not be heard to complain.

In the unreported case of Butler v. Butler (docket 29 p. 746, April 10th, 1909), when vice-chancellor, I held that a husband who sought to' excuse his delay in bringing .suit for nullity because of the wife’s physical and incurable impotence at the time of marriage, for approximately nine years, by asserting that his salary was too small until the time of the suit, and that he had been saving up to enable .himself to bring the proceedings, could have accumulated enough to employ counsel in less than half the time, and that it seemed to me that the case showed a ratification by the complainant, and also lack of sincerity on his part in bringing suit; that his attempt was doubtless to’ rid himself of further pajnnent of an allowance under articles of separation between the parties, or to enable him to contract another marriage, or for some other purpose. This leads me to make an observation on the question of want of sin eerily, which is adverted to in one of the English cases cited by Vice-Chancellor Pitney, as appears above, although it has nu application in the instant case. It is stated in 2 Bish. M., D. & S. § 433, that if one institutes a divorce suit, not from a desire for the redress which he asks, or acting under the weight of the grievance which he alleges, but to attain some collateral end, the law characterizes his conduct as insincerity and withholds from him the decree which he prays, however much the defendant may be in the wrong. There is nothing in the case before me to indicate lack of sincerity, for it does not appear that the wife has any ulterior motive. This doctiine of insincerity is apparently an anomaly in the law, at least, it is sui generis; for it is a general principle that when a suitor is entitled to relief in respect to the matters concerning which he sues, his motives are immaterial. Bull v. International Power Co., 84 N. J. Eq. 6, 10.

Now, I have no hesitation in pronouncing in this case that where, as here, the wife has accepted and enjoved the benefits, such as they may be, of a merely platonic marriage for upwards of eleven rma.rs, she cannot be permitted to repudiate -the contract, but must be held to have ratified it by conduct which she in nowise explains. And this is dispositive-of the case against the petitioner quite irrespective of the evidence offered as newly discovered, and which, therefore, if received, would not change the result.

The views above expressed lead to a denial of the rehearing sought. The time within which an exception to the master’s report might be filed under the rule having elapsed, the petitioner will still, if she desires, be given leave to except and have a hearing on the case as submitted to the master. My holding that the petitioner has ratified the marriage would defeat her on exception as well as on application for rehearing, but, with' exception overruled, she would be able to raise both questions, viz., sufficiency of proofs before the master and right to rehearing on appeal if she went to the court of last resort.


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    Edith Reed Miers v. Amanda Persons et al.
    [Decided October 19th, 1920.]
    1. Formerly a suit would not lie for the construction of a will without seeking equitable relief in the premises, but now any person claiming a right cognizable in a court of equity under a will or other instrument may apply for a declaration of the rights of the persons interested; but only such parties as are before the court would be bound by the decree.
    2. A. R. by will bequeathed and devised the residue of his property to trustees to sell, convert, invest and reinvest the same, and pay the income therefrom to his daughter as long as she should live, and after her death, in case she should leave, no issue, the principal sum to be paid to his next of kin surviving, and in case she died leaving issue, the income to be paid to such issue in the proportions that they would take property from her under the statute of distribution.—Held (a), that the principal sum, to be paid on the death of the testator’s daughter includes the entire residue of his estate, real and personal; (6) that upon the daughter’s death without issue the principal sum would go to- testator’s next of kin surviving at the time of his death; (o) that upon the daughter’s death leaving issue the principal sum should be distributed to them in the proportion that they would inherit from her under the statute of distribution, the bequest of the income carrying with it the principal of the estate; (d) that the direction for paying the principal sum operates to convert the real estate into personalty as of the time of the death of the testator; (e) that the fee to the property is vested in the trustees subject to a vested estate in remainder in the children of the testator’s daughter now living, subject to open and let in after-born children, if a.ny, subject, also, to be divested in favor of the next of kin of the testator living at the time of his decease (other than his daughter) in the event of her death without leaving issue, which next of kin of the testator also take a vested estate in remainder, subject to be divested in fav.or of the issue of the testator’s daughter at the time of her death, if any ■she leaves her surviving, which would include her grandchildren and remoter descendants; and these vested remainders, contemporaneously residing in the next of kin of the testator and the issue of the testator’s daughter, are called alternate, concurrent or cross-remainders.
    On final hearing on bill and answers.

      Mr. Sackett M. Dickinson, for the complainants.

      Mr. Bayard Siockion, for Alfred Reed Persons et al.

      Mr. Frank S. Katzenibach, Jr., for Edyth S. Miers et al., infant defendants.
   Walker, Chancellor.

The controversy in this case is over the construction of the will of the late Supreme Court Justice Alfred Reed. The question arises upon the fifth item of his will. Omitting the provision for payment of part of the income of his estate to his wife for her life or widowhood, as she predeceased testator, the item reads as follows:

“I bequeath and devise the rest of my prqperty to my son-in-law, Edward D. Miers, and my daughter, Edith Reed Miers, in trust, to sell, convert, invest and reinvest the same, and pay the income therefrom, in payment as nearly quarterly as possible to my daughter, Edith Reed Miers, as long as she shall live. * * * After the death of my daughter, Edith Reed Miers, in c¡ase she shall die leaving no issue, I direct the principal sum shall be paid to my next of kin surviving, and in case she dies leaving issue, I direct the income shall be paid to such issue in proportion that such issue would take property from her under the statute of distribution.”

No directions as to present action by the trustees are solicited. Formerly a suit would not lie for. the construction of a will without seeking equitable relief in 'the premises, the rule being that the court would only interpret the provisions of a will as an incident in the granting of relief, but now under the Chancery act (P. L. 1915 p. 184 § 9) any pérson claiming a right-cognizable in a court of equity under a will or other instrument, may apply for a declaration of the rights of the persons interested. In re Ungaro, 88 N. J. Eq. 25.

The bill alleges that under the above paragraph of the will, if testator’s daughter, Edith Seed Miers, dies leaving no issue, then the will is uncertain and indefinite as to whether it refers to testator’s next of kin who shall be surviving at the- time of his death, or to his next of kin who shall be surviving at the time of the death of the life tenant; that if the daughter dies leaving issue, no disposition is made of the principal of the estate, and the testator died intestate, except as to the disposition of income; that the words "dies without issue,” as used in the gift to the issue of testator’s daughter, are uncertain and indefinite and possibly contravene the rule against perpetuities, and it may be that the testator died intestate as to the residue of his estate. The prayers are that the meaning a.nd true construction of the will may be determined by the decree of this court, and that the rights of the various parties in and to the estate may be determined.

First, It is my opinion that the testator’s direction that on the death of his daughter leaving no issue, the principal sum shall be paid to his next of kin surviving, includes the entire residue of his estate, real .and personal.

Where, upon the death of a life tenant testator ordered the balance of his estate to be equally divided among his heirs, it was held that those terms meant his entire estate, real or otherwise. Welsh v. Carter, 32 N. J. Eq. 177; affirmed, 33 N. J. Eq. 362. T can see no difference between providing for the distribution of the balance of an estate, or paying the principal sum of which an estate consists to given distributees after the death of the life tenant.

Second. Was it the testator’s intention in providing that upon the death of his daughter without issue the principal sum shall be paid to his next of kin surviving, to give his estate to his next of kin surviving at the time of his death or at the death of his daughter? I think the former.

In Woodward v. Woodward, 16 N. J. Eq. 83, the testator gave and bequeathed to his daughter the yearly income arising from a certain sum during her lifetime, and if she died leaving no lawful issue, the direction was to divide the fund between the testator’s sons and daughters equally. He died leaving seven children besides the legatee for life, and it was held that by the-terms of the gift the sons and daughters of the testator living at. his death took a vested interest in the residuary gift, so as to be transmissible to their personal representatives, but defeasible upon the death of the legatee for life leaving issue. The law favors the vesting of remainders. Havens v. Seashore Land Co., 47 N, J. Eq. 365, 369. In the case sub judica upon the death of the life tenant, without issue, the residuary gift over is to the testator’s next of kin. They, therefore, took a vested remainder in the fund, defeasible upon the death of the legatee for life leaving issue. The fact that the enjornnent is uncertain never interferes in the vesting of an estate. When the contingency is not in the person, but in the event or in the time of enjoyment, the interest is vested. Van Dyke v. Vanderpool, 14 N. J. Eq. 198, which is also apposite on the facts.

The bill sets out that the only heir-at-law and next of kin of Judge Eeed is his daughter, Edith Eeed Miers. If she dies without issue surviving, those who would take the estate under the will are not her next of kin, but his, and they would be such persons as would have been his next of kin at the1 time of his death, if he left no descendants. The; judge’s sister, Mrs. Amanda Persons, and her son, his nephew, Alfred Eeed Persons, specific legatees under his will, were made- parties defendant. Pending the suit Mrs. Persons died and her heirs-at-law were substituted as defendants in her place and stead. It is not, however, alleged that the sister would be the only next of kin if descendants of the testator were not Jiving. I assume, however, that 'that is the fact. If not, and if the judge left any other sister or brother or descendants of any such, tliey, not being before the court, would not be bound by the decree in this cause. In re Ungaro, supra.

Third. The provision that if the testator’s daughter dies leaving issue the income shall be paid to them in the proportion that they would take property from her under the statute of distribution, if literally and strictly construed, would result in Judge Reed’s dying intestate as to the corpus of the residue of his estate upon the happening of that contingency, because there is no disposition, in terms, of the principal. The law disfavors intestacy and endeavors by construction to hold that a, testator has disposed of his entire estate. A cardinal rule of construction is, that whenever income is given to a legatee, in trust or otherwise, with! out limitation, the principal is regarded as bequeathed also. This is the settled law. It prevents intestacy and harmonizes with the rule against perpetuities. I am of opinion that Judge Reed intended by the ultimate gift of the income of his residuary estate to his descendants to bequeath to them the principal also.

At the time of making his will Judge Reed had two grandchildren, namely, Beatrice H. Miers and Edyth S. Miers, infant children of his daughter, Edith Reed Miers, and his solicitude, of course, was for them rather than for his sister and nephew living in Illinois, to whom he bequeathed specific legacies. It was undoubtedly his intention, to be gathered from the terms of his will as well as from the family relation existing between him and his direct descendants, to make ultimate disposition of the residue of his estate to them, and to provide for its going over to collateral relatives only in the. event of failure of issue of his daughter. It is true that he did not use a proper and apt word to make the ultimate gift absolute in the issue of his daughter, but the word “income” should be construed as meaning principal (Cody v. Bunn, 46 N. J. Eq. 131), or the word “principal” should be substituted for the word “income,” to effectuate the intention of the testator. Courter v. Stagg, 27 N. J. Eq. 305; Policy’s Case, 70 N. J. Eq. 659, and cases cited at p. 662.

Fourth. As to tire character of the estate ultimately to be distributed : The testator left real and personal property. He bequeathed and devised the residue to trustees to sell, convert, invest and reinvest the same, and pay the income thereof to his daughter for life, and after her death without issue, to pay the principal mm to his next of kin surviving; but in case of her death leaving issue he directed the income (to be construed principal, as above stated) to' be paid to such issue in proportion that they would take property from her under the statute of distribution. This direction for paying the principad mm operates to convert the real estate into personalty as of the time of the death of the testator. Dutton v. Pugh, 45 N. J. Eq. 426; Security Trust Co. v. Lovett, 78 N. J. Eq. 445.

Fifth. As to vesting: The fee to the property in controversy is now vested in the trustees to whom it was bequeathed, and devised, subject to a vested estate in remainder in the children of testator’s daughter now living, subject to open and let in after-born children, if any. Clark v. Morehous, 74 N. J. Eq. 658. This vested estate in remainder in the issue of the testator’s daughter (which would include grandchildren and remoter descendants, Security Trust Co. v. Lovett, supra) is subject to be divested in favor of the next of kin of the testator living at the time of his decease (other than his daughter), in the event of the death of his daughter without leaving issue her surviving. The next of kin of the testator also take a vested estate in remainder. This is apparent from the decision in Van Dyke v. Vanderpool, supra, relied upon by Vice-Chancellor Leaming in Potter v. Nixon, 81 N. J. Eq. 338, and this in turn is subject to be divested in favor of the issue of the testator’s daughter at the time of her decease, if any such shall then be living. Estates in remainder of this character are called alternate, concurrent or cross-remainders. In Den v. Cook, 7 N. J. Law 41 it was held that under the devise in question J. and P. took a vested estate, with cross-remainders, and a reversion in fee to the right heirs of the testator.

Tn Den v. Crawford, 8 N. J. Law 90 (at p. 96), Chief-Justice Ewing spoke of two estates in contingent remainder to take effect not one after the other, but either the one or the other at the termination of the life estate, and these he called alternate or concurrent contingencies.

A decree will lie made giving effect to the views above expressed.


text:
    Sarah W. Meek, petitioner, v. John Meek, defendant.
    [Decided December 1st, 1920.]
    1. The corroboration of a petitioner, required by law in order that a divorce may be granted, need not 'be that given by ian.oth.eir or other'-witnesses, but may be furnished by surrounding circumstances adequately established, subject to the rule requiring the best evidence of which the nature of the case is susceptible.
    2. When the testimony of another witness or witnesses is not obtainable to corroborate the testimony of a petitioner for divorce, but her testimony is corroborated by surrounding circumstances adequately established, then her testimony as to defendant’s handwriting or signature sufficiently proves it to-be legal evidence of the fact.
    3. So far as Williams v. Williams, 81 N. /. Eq. 11, holds that the testimony of a petitioner, as to the handwriting or signature of a defendant in a divorce suit, can only be corroborated' by a witness other than the petitioner, that case is overruled.
    On final hearing on pleadings and proofs ex parte.

      Mr. Thomas W. Randall, for the petitioner.
   Walker, Chancellor.

This is a case of divorce for desertion. The special mas; reports that .he is of opinion that all the material facts chai in the petition are true, and .that a decree for divorce shou1' made in the cause pursuant hr the prayer of the petition. T: I agree, if certain letters -written by the defendant, and were received in evidence, aré sufficiently corroborated, v. Foote, 71 N. J. Eq. 273, 280, the court of error? held that corroboration may be found in defendant’s in Williams v. Williams, 81 N. J. Eq. 17, I held + rule that a divorce will not be granted upon t testimony of a party t-o- the suit, the petiti a certain letter of the defendant was written by him, is insufficient to establish it as an element in the proofs, unless the fact that the letter is in the handwriting of the defendant is corroborated. This meant that the defendant’s handwriting had to be corroborated by a witness other than the petitioner. Subsequently, the ease of Orens v. Orens, 88 N. J. Eq. 29, was decided. In that case it was held that the corroboration of a petitioner’s testimony, required by law in order that a divorce may be granted, need not be testimony given by another or other witnesses to all of the same identical facts to the minutest particulars, but only their giving such facts in evidence already testified to by petitioner, or such circumstances tending to establish them, as render petitioner’s testimony so much more probable as to be legally acceptable. and which serve to empower the judge to accept the truth of the petitioner’s whole story; that corroborative testimony of other witnesses is not always required in divorce proceedings, but circumstances shown byr expressions and conduct of a defendant, together with letters of the parties, are, in some circumstances, sufficient. And another subsequently decided case is Rogers v. Rogers, 89 N. J. Eq. 1, in which it was decided that corroboration need not be the testimony of witnesses, but may be furnished by surrounding circumstances adequately established. See, also, Parmly v. Parmly, 90 N. J. Eq. 490; also Robinson v. Robinson, 83 N. J. Eq. 150, affirmed on other grounds, but without criticism of the doctrine of corroboration, 84 N J Eq. 201. This doctrine, however, is subject to the rule requiring the best evidence of which the nature of the ease is sustible. Lasker v. Lasker, 110 All. Rep. 27.

from the foregoing it will appear that I took decidedly too row a view of the question of corroboration with reference to stablishment of the handwriting or signature of the defendstified to by the petitioner in a divorce suit; and I now, ungly, declare that the corroboration of the testimony of a 'equired by law in order that a divorce may be „d not be that given by another or other witnesses, furnished by surrounding circumstances adequately, if the petitioner’s testimony be thus coirobot as to defendant’s handwriting or signature ;o become legal evidence.

In the ease sub judice the only witness wlio testifies to the defendant’s handwriting is the petitioner. She is, however, corroborated on other points by the testimony of witnesses and by surrounding circumstances, and, therefore, her testimony generally is sufficiently corroborated to make her statement legal evidence of the letters. On the whole case, including the letters, the petitioner is entitled to a decree nisi, which will be granted.


author: Stevenson, V. C.

text:
    Rudolph Douma v. Harriet Powers.
    [Submitted May 13th, 1920.
    Decided July 2d, 1920.]
    1. Declarations -in actions at law and bills in suits in equity are not demurrable because they fail to allege affirmatively that the contracts sued on, which are within the operation of the statute, are in writing.
    2. When the declaration or bill shows on its face that the contract sued on was oral, the statute is available as a defence on demurrer.
    3. Where a bill sets forth a contract within the statute, without showing whether or not the contract was in writing, the advantage of the statute as a defence can be taken by a plea.
    4. If the defendant files an answer admitting or alleging that the contract set forth in the bill was an oral contract, he must expressly idead the statute in defence, or he will be deemed to have waived the statute.
    o. If the defendant files an answer simply denying that the contract set forth in the bill was in fact made, he has the full benefit of the statute as a defence at the hearing. The denial of the contract casts upon the complainant the burden of legally proving his contract.
    6. In a purchaser’s suit for specific performance of a contract to convey real estate, it was not necessary to allege that the contract was in writing, as required by the statute of frauds.
    Vendee’s suit for specific performance of contract to convey real estate.
    On motion to dismiss bill.

      Mr. Isadore Zlenert, for the motion.

      Mr. Clyde A. ■Bogert and Mr. A. Demotest Del Mar, contra-

   Stevenson, V. C.

The only objection to the bill which calls for consideration is, that while it alleges that the parties contracted for the purchase and sale of the land in question, it does not allege that the contract was in writing as required by the statute of frauds.

The rule is well settled in New Jersey and generally in the other states that declarations in actions at law and bills in suits in equity are not demurrable because they fail to allege affirmatively that the contracts sued on, which are within the operation of the statute of frauds, are in writing. The rule of pleading is precisely the same in courts of law and courts of equity. Browne on Fraud. (5th ed.) § 505. In Whitehead v. Burgess (1887), 61 N. J. Law 75, 76, Mr. Justice Yan Syckel, speaking for the supreme court, states the principle as follows:

“Where an action is founded upon a contract, which at common law is valid without writing, but which the statute required to be in writing, the declaration need not count upon or take notice of the writing.

“If an action is brought upon a promise to pay the debt of another, the declaration need not aver that the promise is in writing even if such be the fact.

“The reason is that the statute of frauds merely introduces a new rule of evidence but does not alter or affect the rule of pleading.” (See cases cited.)

In Hinchman v. Rutan, 31 N. J. Law 496, Chief-Justice Beasley, in delivering the opinion of the court of errors and appeals, says (at p. 498):

“It has uniformly been held, since the time of Charles II., when the statute- of frauds- was first enacted, that in' declaring on a contract within its operation it need not be alleged or substantially shown that the contract was in writing.” •

The rule is’ equally well settled that when the- declaration or bill shows on its face that the contract sued on was oral—was not in writing—the statute of frauds is available- as a. defence on demurrer. Wirtz v. Guthrie (Vice-Chancellor Emery, 1913), 81 N. J. Eq. 271, 276.

The following are some of the authorities which sustain' the foregoing propositions: Cozine v. Graham, 2 Paige 177; Wentworth Lumber Co. v. McLean (Ga. App.), 97 S. E. 194; Boney v. Cheshires (Ga.), 92 S. E. Rep. 636; Kinney v. Kinney, 93 S. E. Rep. 496; Campbell v. Burnett (Maryland Court of Appeals, 1913), 87 Atl. Rep. 894; Dudley v. Bachelder, 53 Me. 403, 406; Farnham v. Clements, 51 Me. 426; 1 Dan. Ch. Pl. (6th ed.) 365; Ziegner v. Daeche, 91 N. J. Law 634.

Where the bill sets forth a contract within the operation of the statute of frauds', without showing whether or not the contract was in writing, the advantage of the statute as a defence can be taken by a plea, Story Eq. Pl. 761; 1 Dan. Ch. Pr. (6th Am. ed.) 655.

If the defendant files an answer admitting or alleging that the contract set forth in the bill was an oral contract, he must expressly plead the statute of frauds in defence or he will be deemed to have waived the statute. Van Duyne v. Vreeland, 12 N. J. Eq. 142; Cozine v. Graham, supra; Story Eq. Pl. 763.

If the defendant files an answer simply denying that the contract set forth in the bill was in fact made, he has the full benefit of the statute of frauds as a defence a,t the hearing. The denial of the contract casts upon the complainant the burden of legally proving his contract. See Lozier v. Hill, 68 N. J. Eq. 300 (at p. 305), for New Jersey authorities sustaining this proposition.

The only authority cited by counsel for the defendant sustaining the proposition that a bill for specific performance of a contract for the sale of land which fails to disclose any written contract is demurrable, is Titus v. Taylor, 65 Atl. Rep. 1003. This ease is directly in point in favor of the defendant on this motion. The opinion, however, cites no authorities. It may be noted, also, that the opinion is brief, probably was somewhat hurriedly formulated and has not been published in the official reports. I have found that Titus v. Taylor was cited with approval, if not followed, in East Ridgelawn, Cemetery Co. v. Frank, 104 Atl. Rep. 594, which ease does not- appear to have been elsewhere reported. The chancellor authorizes me to state that the Titus Case and the East Ridgelawn Cemetery Co. Case do not, in his opinion, correctly state the rule of equity pleading under discussion in this present case, and that as to that matter both cases are to be deemed overruled.

The motion to dismiss the bill will be denied.