author: Backes, Vice-Ordinary.

text:
    In the matter of the last will and testament of Annie Eatley, deceased, late of Middlesex county.
    [Submitted November 20th, 1913.
    Decided December 27th, 1913.]
    1. Evidence on the probate of a will held to show that the will was properly executed; that the testatrix was competent to make it, and that she executed it with full knowledge of its contents and with an appreciation of its legal effect.
    2. Evidence, in a proceeding for the probate of a will, held insufficient to show that its execution was procured by undue influence.

      3. The relation between testatrix, a widow of about fifty years of age, suffering from a fatal illness, and her sister, the beneficiary, with whom she lived, testatrix being free to visit other relatives, some of whom were at enmity with the beneficiary, who nursed and ministered to her, was not a confidential relation such as would, with other slight circumstances, create a presumption of undue influence.
    4. Where testatrix’s sister, with whom she made her home, nursed and fared for her during her illness, while her daughter, who was married and resided across the continent, though affectionate, was lax, if not indifferent, about writing, the testatrix’s will leaving her property, consisting of a house and lot, to the sister was not an inofficious testament.
    5. A will cannot be held invalid simply because it seems unjust, though that would be a formidable circumstance in showing its invalidity for some other reason.
    G. That testatrix’s sister, who was made the sole beneficiary, did not telegraph testatrix’s daughter of her death until the next day, and said nothing about the will,- which was not offered for probate for nearly two months, was not sufficient to cast the burden of proof as to undue influence on the beneficiary.
    V. Where the existence of a confidential relation between the testatrix and beneficiary with other circumstances raises a presumption of undue influence, the denial of the beneficiary, if otherwise credible and not challenged by other facts, is sufficient to overcome the presumption.
    8. Influence upon a testatrix arising from kindness, love and affectionate devotion do not constitute undue influence, nor are they evidence of undue influence, or even a suspicious circumstance, in the absence of positive proof.
    9. The burden of proving undue influence upon a testatrix rests upon those asserting it, and mere influence, with opportunity and motive to exert it, will not suffice, but it must appear directly, or by justifiable inference, that the influence was exerted and operated to dominate the testatrix and cause her to make a will she would not otherwise have made.
    10. Under 3 Comp. 8tat. 1910 p. 3885 § 197, authorizing the court to order the payment of the costs of an unsuccessful contest against the probate of a will out of the estate, if the contestant had reasonable cause for contest, where an order admitting a will to probate was reversed on appeal to the orphans court, the allowance by that court of the contestant’s counsel fees and costs will be affirmed upon reversal of -the judgment of the orphans court, as the judgment of the orphans court showed that the contestant had reasonable cause for the contest.
    On appeal from the orphans court of Middlesex county.

      Mr. Walter C. Sedam and Mr. Freeman Woodbridge, for the appellant s.

      Mr. George S. Silzer, for the respondents.
   Backes, Vice-Ordinary.

Tbe will of Annie Eatley, deceased, was admitted to probate by the surrogate of Middlesex county, and letters testamentary wore granted by him. On appeal to the orphans court the order of the surrogate was reversed a.nd probate denied because, as recited in the order (no opinion was tiled), the paper-writing offered for probate was not duly executed; that the deceased was hot- competent to execute the same, and that it was not the last will and testament of the deceased. From the reversing order this appeal is taken. The undisputed facts in the case are these: Annie Eatley lived in Metuchen, New Jersejq until the death of her husband in December, 1911. She was then in delicate health, suffering from diabetes, which illness had reduced her weight from two hundred and fifty pounds to one hundred and twenty-one pounds. From that time on, until her death, she made her home with her brother and sister, Albert A. Miller and Marne Stephens, at Wilkesbarre, Pennsylvania. Although ill in body, she was apparently sound in mind until shortly before her death, which occurred on the morning of May 8th, 1913. She was in her normal condition of health until about eleven o’clock in the morning of May 7th, when she took to her bed. The attending physician was then called; her brothers and sisters were hastily summoned, and a lawyer was sent for, who drew her will, in which the sister Marne Stephens was made the sole beneficiary and executrix. The deceased left surviving her a daughter, Eva Pittack, her father, two sisters and five brothers. The estate consisted of $100 in cash and a house and lot at Metuchen.

The execution of the instrument was attended with all of the solemnity required by our statute concerning wills. The attestation clause certifies that it was signed by the testatrix in the presence of the two subscribing witnesses, who in her and in each other’s presence subscribed their names. It is deficient as to publication, but this was supplied by the witnesses at the trial. That the paper-writing contains the wishes of the deceased as expressed by her at the time it was executed, and that site consciously gave voice to them, is sustained by an overwhelming preponderance of the evidence. This seems to have ^been the immediate situation: A Mr. McLaughlin, a member of the Wilkesbarre bar, and an attorney of good standing—this is conceded—drew tiie will. lie had been sent for by a brother of the deceased at her request. From her alone he obtained his instructions and without suggestion from him. These were reduced to writing, and after the document was read to the testatrix, and approved and signed by her, it was at her request attested by Mr. McLaughlin and Albert A. Miller. This, in substance, is sustained by the attesting witnesses, who are disinterested, and by the beneficiary, and who also affirm that the testatrix was rational and entirely sensible of the transaction. It is combated by a brother, John P. Miller, who was unfriendlj' towards the beneficiary and hostile at the trial. He was at the bedside of bis sister fanning her when the attorney, the beneficiary and the hr other-witness entered the room. He testified that the deceased was practically unconscious all during the time the four were present; that she did not recognize him; that she wandered in her talk; that her eyes were closed and that she uttered only affirmative monosyllables in reply to questions put to her by Mr. McLaughlin. He -denied that the testatrix gave directions as to her will; he says she was so prostrated that she could not and did not know what she was doing, and insinuates that die will was fabricated by the counsel and by him forced upon the deceased. This testimony, it is said, and it may have, carried weight with the learned trial judge, but it does not impress me as a true narrative of the occurrence, when analyzed in the light of the witness’s own conduct at that time. He admits he knew Mr. McLaughlin to be a local practitioner and one, as he says, of good repute in the community. He was not unmindful of the purpose of the lawyer’s presence. He heard the will read to his dying sister and observed that she indicated she understood it and expressed her satisfaction -by saying “Yes” when asked whether it was drawn according to her notion. He even helped to prop her up so that she could more comfortably execute the will. He says he fully comprehended its object and realized that a grievous fraud was being practiced upon the deceased and a great wrong being perpetrated upon her daughter, and submitted without a single murmur of disapproval or the slightest protest from him. He attempts to explain his actions by the fact that he was at loggerheads with the beneficiary and the brother-witness, and the fear that any interference would only add to the bitterness of feeling then existing. I cannot believe that an honest man would supinely witness such an infamous outrage as this witness portrays and much less that he would actively participate, because of the reasons he assigns. The motive is entirely out of harmony with human impulses and Ihe worth of his testimony of the event is correspondingly affected. And in searching for the truth, we may ask: Of what interest could it have been to the lawyer that Mrs. Stephens should be made the sole beneficiary, and that he should conspire in her behalf? He was merely an acquaintance of the Miller family.- He was called in simply as a scrivener, to put a testament into legal form. He had no other concern, and it is inconceivable that a gentleman of his professional standing would gratuitously lend himself to so shocking and unconscionable a scheme as this one is said to have been, and to attempt its accomplishment under circumstances which inevitably must lead to discovery and disgrace.

Two other and disinterested witnesses were called, who gave testimony as to the condition of the mind of the testatrix on the dajr she made her will. Mrs. Butz says she called upon her between eleven and twelve o’clock in' the forenoon. This was before the will was drawn. She held intelligent conversation with the testatrix. Nellie Hand, a nurse, called about four forty-five in the afternoon, after the will was executed, and stayed some time with the deceased. She took her respiration and pulse; the latter she found very strong. Her testimony indicates that the deceased at that time was mentally alert.

The evidence satisfies me that the paper-writing offered for probate was executed as wills are required to be; that the testatrix was competent to make the will; that she had full knowledge of its contents; that it was fairly read and explained to her, and that she executed it understandingly and with an appreciation of its legal effect.

It was pointed out in the argument, as of significance, that the attorney inserted the name of the beneficiary as the executrix of the will without consulting the deceased. It need only be commented that the beneficiary was the logical representative to be named, and that her appointment was approved by the testatrix after the will was read to her. Attention was also directed to a statement alleged to have been made by Mr. McLaughlin immediately after the will was executed, to the effect that he 'did not know whether the paper would stand a legal test. John P. Miller, who asserts that it was made, is contradicted by the other three witnesses present. But, if made, does it signify anything more than that a. lawyer unfamiliar with the laws of this state, expressed his apprehension that the instrument might be faulty because it may not have been executed Avith the formalties required by our statute concerning wills? Some criticism was also made of the course pursued by the attorney in disposing of the deceased’s personal estate. At the time he called to drarv the will, he -was told by the testatrix that her possessions consisted of the house and lot in New Jersey and $100 in cash in a bank in Wilkesbarre, all of which she desired should go to her sister. He thereupofi. drew and had executed an assignment of this money and delivered it with the bank book to Mrs. Stephens. His explanation is that he did this to avoid taking out letters in Lucerne county, Pennsylvania, obviously, because the amount involved was small. This was prudent and manifestly advisable.

The next question is, is the will the product of undue influence ? There is not a scintilla of evidence showing that anybody approached, or in the least measure persuaded the deceased to make a will. The first suggestion came from the deceased when she asked her sister to send for a lawyer, and then repeated this request to her brother. The contention is that the testatrix was under the complete domination of the beneficiary; that the will is inofficious, and that the conduct of the beneficiary after the will was executed reflects a fraudulent procurement, from all of which the law presumes undue influence and puts upon the beneficiary the burden of showing affirmatively that when the testatrix made her will she did not exercise her power over the testatrix to her OAvn advantage, and to the disadvantage of others having an equal or superior claim upon the bounty of the testatrix. Carroll v. Hause, 48 N. J. Eq. (3 Dick.) 269.

Mrs. Eatley was about fifty years of age, widowed, alone and fatally ill, when she sought a home with her brother and. the sister, the beneficiary, who lived together as one household. In this she became and was treated as a Welcome member. Her physical condition naturally invited the kindly ministrations of her sister, who sometimes nursed her, helped her to dress and with her toilet; accompanied her while visiting and wrote her letters. Her friends called upon her and she mingled with them at her pleasure. She was on intimate terms- and visited the families of her brothers and sister, who were at enmity with the beneficiary. Her’s was a free agency to go and come as fancy led. These circumstances do not establish a confidential relation such as is illustrated in the opinions in Sparks Case, 63 N. J. Eq. (18 Dick.) 242, and In re Cooper’s Will, 75 N. J. Eq. (5 Buch.) 177, which, with “other slight circumstances,” casts upon the proponent the burden of showing that the will was untrammeled by undue influence. This is not seriously controverted, but it is urged that because of the dependency in those of her affairs to which I have just alluded, it ought to be assumed that when the deceased was nearing dissolution, the beneficiary took advantage of her helplessness to wring from her this testamentary disposition. This is entirely too visionary for thoughtful submission by counsel or consideration by the court. Nothing in the intercourse between the beneficiary and the deceased offers the slightest ground for such speculation and conjecture. Furthermore, this fact stands boldly in refutation: When it was surmised that death was approaching, the family differences were laid aside and the brothers were sent for, and in the presence of one of them, who was especially antagonistic, the will was executed. Now, is it likely, is it reasonable that if the beneficiary had importuned and cajoled the deceased for self-gain, as we are asked to believe she did, she would have summoned them to perhaps bear witness to her infamy? Frauds of this character are usually conducted hiddenly, and it is incredible that one who had had abundant opportunity to contrive in secret, should so audaciously flirt with probable exposure or as brazenly challenge detection.

It is said that the will was an unnatural one. The property in Metuchen, it was said on the argument, came to the deceased from her second husband by survivorship, under an estate by the entirety. Mrs. Eatley’s daughter, by her first husband, was married and resided with her family in Seattle, where she went some eleven years ago. Correspondence between the two was infrequent, and while it is true that their relations were at all times affectionate, it is also quite plain from the evidence that the daughter was lax, if not indifferent, in her letter communications and in her solicitude for her mother’s welfare. Tins we have from her letter written after her mother’s death. In her condition of loneliness and sickness, the deceased turned to her sister, the beneficiary, for solace and comfort. She had intended, if her health improved sufficiently to stand the trip, to eventually make her home with her daughter, which, however, never came to pass. While it may be so that the deceased made expressions of intended testamental disposition in favor of her daughter, yet we must not lose sight of the impressions of sincere appreciation which were undoubtedly made upon her mind by the faithful care and attention which were unstinting]}' given by the beneficiary at a time when the deceased was most in need of them, and that in grateful recognition and partly as compensation they may have, and justly, furnished the motive for the selection of the sister instead of the daughter as the proper object of the deceased’s bounty. The situation at least modifies the claim put forth by the daughter as the exclusive natural object of her mother’s bounty, and qualifies the other that the will was one which the testatrix could not make consistent with the claims of duty or affection. It takes the will out of the class called “inofficious testaments” and militates against the contention that it was not the spontaneous act of the deceased. We are not at liberty to destroy wills simply because they strike us as unjust. That is only a formidable circumstance in the consideration of the cause. “The power of disposition belongs equally to the good and to the bad, and wills cannot be set aside merely because unequal or unjust. If capacity, formal execution, and volition appear, the will of the most impious man must stand, unless there is something, not in the motives which led to the disposition, but in the actual disposition, against good morals or against public policy. It may be harsh and severe, it may be extremely cruel under some circumstances; to disinherit one child and to bestow the whole estate upon another, but if the testator be of disposing mind and memory, and duly execute such will in the forms prescribed by law, no court can interfere.” Trumbull v. Gibbons, 22 N. J. Law (2 Zab.) 117 (on p. 153); Middleditch v. Williams, 45 N. J. Eq. (18 Stew.) 726; Kitchell v. Beach, 35 N. J. Eq. (8 Stew.) 446; Turner v. Cheesman, 15 N. J. Eq. (2 McCart.) 243; Bennett v. Bennett, 50 N. J. Eq. (5 Dick.) 439.

It is claimed that the beneficiary suppressed the will, and it is argued that this supplies the “'other slight circumstance” (presupposing that a confidential relation has been established) to cast upon the proponent the obligation of overcoming the presumption of undue influence. The record discloses nothing but absolutely normal conduct on the part of the beneficiary until after the death of the testatrix. Then Mrs. Stephens failed to telegraph to the daughter informing her of her mother’s death, until the day following, and later on, in a letter to the daughter, did not mention the will, and the will itself was not offered for probate until nearly two months after it was made.

Mr. McLaughlin, the attorne)', took possession of the will after it was executed. It was a matter of common, knowledge in the Miller family that the will had been made. There was no effort made to conceal it from them, and it is a fair presumption that they knew its contents. John P. Miller, the unfriendly brother, did, and it is not at all unlikely that he discussed it with the other members of the family. The explanation of the beneficiary on cross-examination, as fo why she did not promptly communicate the death to the daughter, and why she withheld information as to the execution of the will, is not as frank and satisfactory as the circumstances permitted and as she could have given. She pleaded distress and commotion in the household as a reason for not immediately notifying the daughter that her mother had passed away, and says in response to repeated prodding of the eross-examiner, that “'she did not know” why she did not inform her of the will. The witness was apparently laboring under great excitement occasioned by a vigorous! and searching cross-examination, and evidently took refuge in “I don't know,” as so many witnesses do, to escape the ordeal, rather than to submit herself to further torture by giving a rational explanation, which in this ease obviously is that she refrained from communicating and frankly unbosoming the truth, through a spirit of reluctance to reveal unpleasant news, which would only bring sorrow and mortification to the daughter. Her conduct, unwise and disingenuous as it was, does not- to my mind evince a guilty conscience of constraint upon the testamentary mind of the deceased. The making of the will was not concealed, in the sense used by the authorities, which as a “slight circumstance” shifts the burden of proof.

But if I should accept, as it is argued, that the circumstances, unfavorable to the beneficiary, taken in the concrete, make a case which raises the presumption of undue influence, it will not affect the result. The beneficiary, and her brother, with whom the deceased lived, and who were hex intimate associates, both emphatically deny that they influenced the testatxix. The denial of the beneficiary, standing alone, if otherwise credible, and not challenged by other facts, is sufficient to overcome the legal presumption. Sparks Case, supra. We need, however, not stand on this narrow margin. Taking into consideration all of the circumstances of the case surrounding the making of the will, they utterly rout the presumption and convince me that the will was initiated by the deceased and expresses her testamentary design. The only acts of the beneficiary which might be regarded as having influenced the testatrix were those born of kindness and love and affectionate devotion, which at no time and nowhere have been denominated in the law as undue, nor has their recognition in testamentary dispositions ever been held to be evidence of undue influence or even a suspicious circumstance in the absence of positive proof. Howell v. Taylor, 50 N. J. Eq. (5 Dick.) 428; Trumbull v. Gibbons, 22 N. J. Law (2 Zab.) 117; In re Gleespin, 26 N. J. Eq. (11 C. E. Gr.) 523. “The burden of establishing the influence which is ‘undue’ rests on those who assert it. Mere possession of influence and opportunity, and motive to exert it, will not suffice. It must appear either directly or by justifiable inference from facts proved that the influence was exerted and operated to dominate testator and coerce him to make a disposition of his property which he would not otherwise have made.” Schuchhardt v. Schuchhardt, 62 N. J. Eq. (17 Dick.) 710. No such proof was essayed.

So much of the decree as reverses the order of the surrogate granting probate and letters testamentary will be reversed.

.Appeal was also taken from so much of the decree below as granted .counsel fee and costs to the contestant. In view of the court’s judgment that the will Avas invalid, it followed as a necessary sequence that it also found that the contestant had reasonable cause for contest and properly made the allowance. 3 Comp. Stat. p. 3885 § 197. This feature of the deoree is affirmed.


source: Caselaw Access Project

author: Backus, Vice-Ordinary.

license: Public Domain

text:
    In the matter of the estate of William A. Gahagan, deceased.
    [Submitted December 24th, 1913.
    Decided December 30th, 1913.]
    1. Evidence, in a will contest, held sufficient to establish testamentary capacity at the time testator signed a codicil.
    2. Where a codicil bears the signature of the testator, a complete attestation clause, and the signatures thereto of two subscribing witnesses, there is a presumption of due execution.
    3. Publication by a testator acknowledging and signifying his adoption and approval of the declaration of one present, in the presence and hearing of the subscribing witnesses, to the effect that the instrument about to be executed was a codicil to his will, was sufficient, if the sense of the declaration was conveyed to the intelligence of the witnesses.
    4. Evidence held to show due publication of a codicil to a will at the time of attestation.
    On appeal from the orphans court of Union county.

      Messrs. Herrmann & Steelman, for the appellant.

      Mr. James S. Erwin, Mr. William A. Coddington and Mr. Robert Carey, for the respondents.
   Backus, Vice-Ordinary.

This is an appeal from so much of the decree of the orphans court of Union county as grants probate of a codicil to the last will and testament of William A. Gahagan, deceased.

Was the testator competent and was the codicil duly published, are the questions for decision. The first point was not pressed at the argument. Jt is urged in the brief of the appellant’s counsel.

The will, concerning which there is no dispute, bears date June 17th, 1912. The codicil was executed February 1st, 1913. The testator died on the tenth of that month from some heart affection. On the day the codicil was signed, the deceased rallied from a night of unconsciousness and his mental powers recovered their tone. Although in a critical condition, his mind was clear and he was sensible and comprehending. The codicil had been prepared at his direction, after a conference with members of his family, mamly to circumvent an importuning creditor of the daughter, whose share under the will was thereby changed from an absolute estate to one in trust for life, with the remainder to her children. The' document had been read to him on a previous occasion and at the time of its execution he knew its contents and understood its object. The evidence abundantly establishes testamentary capacity.

The codicil bears the signature of the testator, a complete attestation clause, and signatures thereto of two subscribing witnesses. The presumption of due execution is thus created. Mundy v. Mundy, 15 N. J. Eq. (2 McCart.) 290; Veazey's Case, 80 N. J. Eq. (10 Buch.) 466. This presumption is fortified by the evidence of Dr. Probaseo, who was instrumental in having the codicil executed, and who was present at its execution. His testimony shows that all of the statutory requirements, as certified by the attestation clause, attended the execution of; the codicil. Publication was made by the testator acknowledging and signifying his adoption and approval of the declaration of the physician, in the presence and hearing of the subscribing witnesses, to the effect that the instrument which was about to be executed was a codicil to his testament. This is a sufficient publication, if the sense of the declaration is conveyed to the intelligence of the witnesses. Mundy v. Mundy, supra; Elkinton v. Brick, 44 N. J. Eq. (17 Stew.) 154; Robbins v. Robbins, 50 N. J. Eq. (5 Dick.) 742; Darnell v. Buzby, 50 N. J. Eq. (5 Dick.) 725; affirmed, 52 N. J. Eq. (7 Dick.) 337; Hildreth v. Marshall, 51 N. J. Eq. (6 Dick.) 241; Vernon v. Vernon, 69 N. J. Eq. (3 Robb.) 759. It is said that the witnesses did not understand that the document which they attested was of a testamental nature, and it is claimed that their testimony in this respect overcomes the presumption of publication which arises from the attestation clause, and also preponderates as against the weight to be given to the positive evidence of Dr. Probaseo. The substance, extent and effect of their testimony, as I read and consider it, is, that they did not remember the act of publication, and did not remember whether they knew, at the time of the transaction, from the act of publication, that the instrument which they subscribed as witnesses was a codicil to the testator’s will. This evidence is not inconsistent with, nor does it militate against, the legal presumption. Allaire v. Allaire, 37 N. J. Law (8 Vr.) 312; affirmed, 39 N. J. Law (10 Vr.) 113; Robbins v. Robbins, supra. The evidence of the two subscribing witnesses impresses me that they, at the time the codicil was signed, and from what wjas then said regarding it, realized that the paper was a testament. One of them, Miss Lyness, ihe nurse, said that Dr. Probaseo asked her to sign the paper as a codicil or a paper, and that she supposed it was something in regard to the testator’s will. The other, Mrs. Wilmerding, testified that she did not know the contents, but knew that the paper pertained to a will. These statements are significant.

The decree of the orphans court is affirmed, with costs.


author: GUMMEEE, Oh J EE-J u ST ICE.

text:
    Gilbert M. Deats, administrator, respondent, v. August Ziegener, administrator, appellant.
    [Argued July 2d, 1913.
    Decided December 4th, 1913.]
    By a testamentary gift of residuary real and personal estate, in mass, to the testator’s wife “for her sole use and benefit for and during her lifetime” the beneficiary takes only a life interest in the personalty, and this is so even though the will contains no gift over after her death.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison.

      Mr. Merritt Lane, for the appellant.

      Messrs. Iiartshorm, Tnsley & Leake, for the respondent.
   The opinion of the court was delivered by

GUMMEEE, Oh J EE-J u ST ICE.

Frank L. Landers died in 1904 leaving a last will and testament in and b,y which, after a specific devise of realty to- his mother, he disposed of the residue of his estate as follows:

“I give and bequeath unto my wife Ifllla Tjanders all the rest, residue and remainder of my property, both real and personal, of every name and nature wherever situated, for her sole use and benefit for and during her lifetime,”

and then constituted his wife sole executrix. She died in 1909, and the purpose of the present litigation is to have it judicially determined whether, under the residuary clause of testator’s will, Mrs. Landers became the absolute owner of his personal estate, or whether upon her death it went to his next of kin.

It is to be observed that the residuary clause under consideration deals not only with the testator’s personal estate, but also with that portion of his real estate remaining after the devise to his mother; and, further, that he mingles the two and disposes of them as a unit. Tt would seem clear that by doing so he intended that his wife should take the same interest in the one as in the other, and this is made certain by the fact that he expressly declares that the limitation of her enjojunent to the term of her life shall be applicable to the whole residue, personal as well as real.

That the interest which the wife took in the realty of her husband under this residuary clause is a life estate is, of course, plain; and this would be the case even if a power of disposition had been annexed to the devise. Downey v. Borden, 36 N. J. Law (7 Vr.) 460; Pratt v. Douglas, 38 N. J. Eq. (11 Stew.) 516; Wooster v. Cooper, 53 N. J. Eq. (8 Dick.) 682; Robeson v. Shotwell, 55 N. J. Eq. (10 Dick.) 318; S. C. on appeal, 55 N. J. Eq. (10 Dick.) 824. And the fact that the will contains no devise over after the death of the wife cannot enlarge her estate; if she dies without executing the power the lands descend to the heirs-at-law of the testator. Crossling v. Crossling, 2 Cox 395.

It is said, however, that there is a diversity between the rules of construction relating to bequests of personal property for life, and those which govern in like devises of real estate; that according to those rules a testamentary gift of personalty to a beneficiary for his life clothes him with the absolute ownership of the subject of the gift, unless there is a further express disposition of it after his death; and it is argued from this that, although it is unquestionable that the testator in the present case intended that his wife should take exactly the same interest in his personal estate that she should take in his realty, these rules of construction prevent this intention from being carried into effect. This argument seems to us to be unsound. Conceding, for the purposes of discussion, that a testator, dealing separately with his personal estate, will be considered as vesting the absolute ownership thereof in his beneficiary, although he expressly declares in his will that only a life interest therein shall pass, unless he further provides for its devolution to named persons upon the death of the first taker, this is not the law of this state when he mingles his real and personal estate in a mass and disposes of it as a unit. In such a case the plain intent of the testator is given effect. The beneficiary, taking only a life estate in the realty, takes only the same interest in the personalty. Tn Pratt v. Douglas, supra, where the testator left his residuary real and personal estate to his wife for her life with full power to dispose thereof, Mr. Justice Depue, speaking for this court, after declaring that a devise of lands expressly for life would not be enlarged to an estate in fee even when words conferring upon the devisee power to convey a fee were superadded to the devise, declared that "the same, rule of construction is applicable, to beepuests of personal estate,” (at p. 533). In the case of Wooster v. Cooper, supra (on p. 683), we, in considering a similar testamentary disposition of real and personal property, again declared that where the interest of the wife is limited by certain and express words to her life only, those words of limitation apply equally to the personal as to the real estate. To the same effect is Robeson v. Shotwell, supra,. It is true that in each of these cases there was a gift over of the residuary estate upon the death of the first taker, but that was not considered of importance in determining the intention of the testator. That intention was found to be settled beyond doubt by the words of the limitation, and, having been ascertained, was given effect in accordance with the primary rule observed in the construction of wills, viz., that the intention of the testator as exhibited by the will shall prevail.

It is said that the early case of Kay v. Executors of Kay, 4 N. J. Eq. (3 Gr. Ch.) 495, is opposed to this view. It is not at all clear to us that the decision is not in harmony with the later ones of this court just mentioned. By the will which was then before the court of chancery for construction the testator left to his son Josiah the one equal undivided eighth part of his residuary real and personal estate "during his natural life, but not to have and to hold in fee-simple, and at his decease to descend to his legal heirs-at-law.” The chancellor, in an opinion of five lines, held that Josiah tools an absolute interest in the estate. Why the learned jurist reached that conclusion is not stated in the opinion, but it is probable that he was convinced by the argument of counsel (which is published as part of the ease) that the devise of the real estate created an estate tail at common law, and that it was the intention of the testator that his son should take a similar interest in the personalty; and that as, at common law, words creating an estate tail in lands passed the whole interest in chattels, the construction afterward adopted by the chancellor would declare the true intent of the testator. If the ground of decision was that suggested by counsel, it is not in opposition to the rule laid down in Pratt v. Douglas, and followed in our later decisions. If it is to be considered as authority for the broad doctrine that by a testamentary gift of real and personal property in mass for life, the beneficiary takes an absolute ownership of the personalty, notwithstanding the limitation, it must be held to have been overruled by the above-cited decisions of this court.

Tlie conclusion reached by the vice-chancellor in the present case was that by the testator’s will his wife took merely a life interest in his personal estate, and that, there having been no-further disposition made of it by his will, it must go at her death to those persons who were entitled to it under the statute of: distributions. In this conclusion we concur.

The decree under review will be affirmed.

For affirmance—The Chiee-Justice, Garrison, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalisch, VredenBURGH, CONGDON, WHITE, TeRI-IUNE, IIePPBNHEIMER—13.

For reversal—None.


author: Gummere, Chiee-Justice.

text:
    Frederick R. Maddock, administrator, &c., v. Marjorie Heath Connolly et al.
    [Argued November 24th, 1913.
    Decided March 16th, 1914.]
    A party who seeks to foreclose a mortgage given for future advances must prove that such advances were in fact made, and that they remain unpaid, in order to entitle him to the relief which he seeks.
    On appeal from a decree of the court of chancery advised by ■Vice-Chancellor Howell, whose opinion is reported ante p. 538.

      Mr. Ralph E. Lum and Mr. Egbert J. Tamblyn, for the appellant.

      Mr. Gorilandt Parker, Mr. Edward A. Bay and Mr. John R. Hardin, for the respondents.
   The opinion of the court was delivered by

Gummere, Chiee-Justice.

The bill in this case was filed for the foreclosure of a mortgage of $30,000 given by Charles Heath, the son of Edmund Heath, complainant’s decedent, to his father, in 1892. The mortgagor died in 1900, and the mortgagee caused the instrument to be registered shortly after the occurrence of that event. Edmund Heath, the mortgagee, died in 1904, leaving a last will and testament, in and by which he appointed his wife Margaret sole executrix thereof. Mrs. Heath acted as executrix until her death, and the complainant was subsequently appointed administrator cum testamento annexo, and filed the present bill in that capacity. He claims that the mortgage was given to secure future advances of moneys to be made by Edmund Heath to his son Charles, and that such advances were in fact made. The learned vice-chancellor before whom the cause was heard considered that he had failed to sustain his claim by the proofs submitted—that is to say, that the proofs did not show any advances made by the father to the son on account of the mortgage—and for this reason dismissed the bill. We concur in this conclusion of the vice-chancellor, and approve the grounds upon which it is rested, as set out in the opinion filed by him in the cause.

But even if the complainant had carried the burden of proof upon this point, and shown the payment of advances on account of the mortgage, this fact alone would not have entitled him to the decree prayed for. He was bound to show, in addition, that the advances constitute an outstanding obligation against the estate of Charles Heath, in order to entitle him to that relief. If he had produced the bond and mortgage from among the, papers of the decedent, his possession of them would have been prima facie evidence that the mortgage did remain unpaid. But this he was unable to do. He showed that the mortgage had passed into the hands of Mrs. Margaret Heath as executrix of her husband’s estate upon the latter’s death; that it apparently disappeared while in her hands; that it was not found after lier death among the papers belonging to her husband’s estate, and that diligent search has failed to bring it to light. But this proof, in view of other circumstances appearing in the case, does not raise a presumption of non-payment. Mrs. Heath, as appears from an inspection of her husband’s will, was given a legacy of $10,000 out of his estate. Her son Charles was her only child. He left children surviving him who, by his will, were the sole beneficiaries of his estate, and these children were the natural objects of Mrs. Heath’s bounty. She had a right (subject, of course, to valid, claims of creditors of her husband, and those of her co-legatees) to pay the legacy to herself pro tanto, by appropriating this mortgage to her own use, and, after so doing, to cancel and destroy it as an obligation against her son’s estate, and so increase the corpus of that estate for the benefit of her grandchildren. In the absence of proof that Mrs. Heath’s legacy was otherwise paid (and there is no such proof) it seems to us quite as natural to presume that the non-existence of the mortgage is to be accounted for in some such way as this, as on the theory that so valuable a security was lost through the carelessness of Mrs. Heath while in her hands as executrix, and while still an outstanding obligation in favor of her husband’s estate. •

The decree under review will be affirmed.

For affirmance—The Chief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White—11.

For reversal—None.


text:
    John Schilstra et al. v. Arie J. Van Den Heuvel et al.
    [Argued November 25th, 1913.
    Decided March 16th, 1914.]
    1. Under the system of jurisprudence which prevails in this state, the only tribunal in which the right to an office can be judicially determined is the supreme court, and the only method by which it can be put in issue is by proceedings in the nature of a quo warranto.

    2. And this is true not only with relation to state and municipal offices, but also those of private corporations, religious as well as secular.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Howell, whose opinion is reported mie ¶. 155.

      Mr. Charles B. Bradley, for the appellants.

      Mr. Andrew Foulds, Jr., and Mr. Lewis A. Allen, for the respondents.
   The opinion of the court was delivered by

Gummere, Chiee-Justice.

The congregation of the Northside Christian Reformed Church of Passaic became embroiled over the action of the classis of Hudson (the governing body of the denomination to which the church belonged) in attempting to terminate the pastorate of the Rev. Arie J. Yan Den Heuvel, and, as a result thereof, a large number of the congregation seceded from the religious denomination of which they were members and joined another and entirely distinct denomination known as the Reformed Church of America.

Mr. Yan Den Heuvel and the whole membership of the trustees of the church were among the seceders. These gentlemen claimed the right not only to change their religious creed, but also to take with them into the new fold that they had entered the church property and temporalities of the congregation from which they had seceded.

After this had been done those of the congregation who remained true to the tenets, laws, customs and principles of the Christian Reformed Church elected the complainants as trustees in the place of those who had withdrawn from membership. The present bill was filed by these trustees (on behalf of themselves and such other members of the congregation, who had not seceded, as chose to join them in the litigation) to obtain a decree adjudging them to be the real trustees of the church, and restraining the defendants—who are the seceding pastor and members of the old board of trustees—from intermeddling with the property and temporalities of the Northside Christian Reformed Church of Passaic, and from diverting, or attempting to divert, the same or any part thereof from the uses and purposes to which it was originally dedicated, and compelling them to turn over the possession and custody of such property and temporalities to the complainants.

The relief sought was decreed to the complainants, and the defendants appeal.

The facts in the case pertinent to its determination are fully set out’ in the opinion filed by the vice-chancellor in the court below, and it is unnecessary to repeat them here. Upon these facts, and for the reasons stated by the learned vice-chancellor, we conclude that the decree advised by him is fully justified, except in one particular, viz., the adjudication that the complainants, and not the defendants, constitute the board of trustees of the Northside Christian Reformed Church of Passaic, and as such are entitled to the custody and possession of the property and temporalities of that church. In this particular we consider the decree comm non judice. Under the system of jurisprudence which prevails in this state, the only tribunal in which the right to an office can be judicially determined is the supreme court, and the only method by which it can be put in issue is by proceedings in the nature of a quo warmnto. Simon v. Hoboken, 52 N. J. Law (23 Vr.) 367; Roberson v. Bayonne, 58 N. J. Law (29 Vr.) 325; Casey v. Chase, 64 N. J. Law (35 Vr.) 207; Miller v. Washington, 67 N. J. Law (38 Vr.) 167; DuFour v. State Superintendent, 72 N. J. Law (43 Vr.) 371; Bumsted v. Blair, 73 N. J. Law (44 Vr.) 378. And this is true not only with relation to state and municipal offices, but also those of private corporations (Owen v. Whitaker, 20 N. J. Eq. (5 C. E. Gr.) 122; Hankins v. Newell, 75 N. J. Law (46 Vr.) 26), religious as well as secular. State v. Crowell, 9 N. J. Law (4 Halst.) 390; Pulis v. Iserman, 71 N. J. Law (42 Vr.) 408.

We conclude, therefore, that the decree appealed from should be affirmed in part, and reversed in part,' as above indicated, and it will be so ordered.

Neither party will be allowed costs as against the other.

For modification—The Chief-Justice, Parker, Bergen, Minturn, Kalisch, Bogert, Yredenburgh, Congdon, White, Heppeah-ieimer—10.


author: Swayzjs, J.

text:
    Mary E. McAusland, executrix, respondent, v. Ely J. Rieser et al., defendants.
    [Submitted December 6th, 1913.
    Decided March 16th, 1914.]
    1. The statute relating to conditional sales of personal property (P. L. 1889 p. 421, as amended by P. L. 1895 p. 302) provides that all contracts of conditional sale of personal property shall be acknowledged or proved and recorded as required by the statute.—Held, that the word “contract” is not to be taken in its technical legal sense of a consummated agreement enforceable by the law, and that a written order for goods subject to the vendor appellant’s approval signed by the vendee, witnessed by the vendor appellant’s salesman, accepted a few days later by the vendor appellant, the salesman as subscribing witness proving the signature of the vendee, and the accepted order being duly recorded, constituted a sufficient contract within the statute.

      2. The statute does not require in so many words that the contract of conditional sale shall be in writing, but this must be implied since it would be impossible to acknowledge or prove a mere oral contract, and it would be unusual if not impossible to record such a contract as our statute directs.’
    3- The question whether the proof was or was not by a subscribing witness is purely a question of fact, and where his uncontradicted testimony is that he put his signature on the paper at the time the contract was made, on the 8th of September (the date of the order) and not on the 19th (the date of acceptance), that the name of the vendor was not on' the paper at the time, that he only witnessed the signature of the vendee, that the line from the word “witness” down toward his name was put there at the same time as his signature, such proof suffices to show that he is a subscribing witness.
    4. Whether the vendee signed and delivered the contract as her voluntary act and deed is also a question of fact, and there is no reason why the subscribing witness may not infer the voluntary character of the act from the facts as well as from a formal acknowledgment. To require the precise words of a formal acknowledgment where the statute does not require acknowledgment but proof, savors of mere form.
    On appeal of Liquid Carbonic Company from a decree of the court of chancery advised by Vice-Chancellor Garrison.

      Mr. John Warren (Mr. John Milton on the brief), for the complainant-respondent.

      Mr. William B. Btites, for the Liquid Carbonic Company, appellant.
   The opinion of the court was delivered by

Swayzjs, J.

The appellant claims under a contract of conditional sale. The validity of its claim is contested because, as is said, the execution of the contract was not acknowledged or proved as required by the statute. P. P. 1889 p. 1/.21, as amended by P. L. 1895 p. 802. A written order for the goods, subject to appellant’s approval, was signed by the vendee, witnessed by the appellant’s salesman, accepted a few days later by the appellant. The salesman, as subscribing witness, proved the signature of the vendee, and the accepted order was duly recorded. Three objections are made to the validity- of the contract as against the complainant: first, it is said that there was no contract at the time the vendee signed the order, and the execution of the contract could not have been proved as the statute requires, since there was no acknowledgment or signing after the contract had been completed by acceptance; second, that .the witness .who proved the execution was not a subscribing witness since his name appears, not in the usual place for the name of an attesting witness, but underneath the acceptance of the vendor; third, that there is no proof that the vendee acknowledged that her signature was her voluntary act and deed and without such acknowledgment the subscribing witness could not know whether the act was voluntary since that depended upon the state of her mind, and was not a matter of observation by the witness.

First. If the word “contract” is to be taken in its technical legal sense of a consummated agreement enforceable bjr the law, there was, of course, no contract until the appellant had accepted the order. We think this construction over-nice, impracticable, and not one to carry out the intent of the legislature. Prior to the statute, contracts by virtue of which the possession of goods passed to the vendee while the title remained in the vendor, were valid, although the possession of the goods tended to give the vendee a fictitious credit. To protect others, the statute requires such contracts to be acknowledged or proved and recorded. The statute does not require in so many words that the contract of conditional sale shall be in writing, but this must be implied, since it would be impossible to acknowledge or prove a mere oral contract, and it would be unusual, if not impossible, to record such a contract as our statute directs. A writing seems therefore to be required by implication, but we ought not to carry the requirement of a writing-further than the necessary implication of the statute demands. It does not demand a formal written contract executed by both parties, and we think nothing more is implied than such a written memorandum as was required by the statute of frauds where the goods sold were of the price of $30 and is now required by the Sales act where the value is $500. In a very large proportion, perhaps most, of the contracts of sale in everyday business there is no writing at all. When there is a writing, it is often, perhaps usually, no more than the written memorandum signed by the party to be charged, and not by both parties. Even in large transactions, where “bought and sold notes” are used, neither note is signed by or on behalf of both parties. We have no doubt that in ordinary commercial parlance such memoranda would be spoken of as contracts. The legislature naturally used the word in the ordinary popular sense, and did not have in mind the nice legal analysis of the elements of a binding contract. Our construction is in accord with the dictionary definition. Webster’s New International defines contract as “a writing made by the parties to evidence the terms and conditions of a contract.” We see no reason why such written evidence may not be made before the actual conclusion of the bargain, and contain the terms to which both must accede before the bargain is consummated. Our construction is also in accord with reason. If the contract must be actually complete and legally enforceable before it can bo acknowledged by one party, it must be complete also before it can be acknowledged by the other, and in so nice a legal analysis, it can make no difference whether the time that- intervenes between the acknowledgment and the final assent of the minds of both parties is one year or one minute. If there can be no acknowledgment until after the minds of the parties have met, they must either execute when they are met together or an officer must go with a completed contract to one party or the other to secure the acknowledgment. We think it cannot have been the legislative intent to trammel the execution of ordinary mercantile contracts by formalities suitable rather to the most formal acts of conveyance. Indeed, the reasoning on behalf of the complainant would make the acknowledgment of an ordinary deed of land difficult. A deed, if we are to take the strict legal definition, is a writing sealed and delivered. It becomes a deed only by delivery. Under our registry laws no grantee would be safe in accepting a deed until it was acknowledged or proved, and yet to be acknowledged or proved it must already have been delivered, if the complainant’s line of reasoning is correct. We 'venture to say that so nice and technical a construction would invalidate a large proportion of our conveyances. If we may trust our own knowledge of the usual practice, a deed is acknowledged as such before its delivery, oftentimes long in advance of delivery and in the absence of the grantee, who in many cases never in fact meets the grantor. The statute as to contracts for conditional sales requires the execution of the contract, to be acknowledged or proved in the manner prescribed for the acknowledgment and proof of deeds. The legislature must be presumed to have had in mind the practice as to deeds, and can hardly have meant to be more technical as to the acknowledgment or proof of contracts.

If we look further at the statute, the difficulty in the complainant’s nicety of construction becomes still more apparent. The act applies only to cases where the contract for conditional sale is accompanied by an actual delivery. The distinction between the actual delivery, which must accompany the contract, and the actual and continued change of possession which must follow, is marked. If we are to be nice, precise and technical in our construction, we must say that the delivery and the contract must go together and be in effect simultaneous, i. e., the sale must be executed, not an executory contract. If so, the statute is inapplicable to the present case. We think it applicable, because the facts of the case bring it within the reason and spirit of the act, just as we think the proof of execution complied therewith. It is a satisfaction to know that our result accords with that of the supreme court of errors of Connecticut. National Cash Register Co. v. Lesko, 58 Atl. Rep. 967. It would be a vain parade of learning to cite other authorities which bear more or less remotely on the question.

Second. The question whether the proof was or was not by a subscribing witness is purely a question of fact. He testified that he put his signature on the paper at the time the contract was made, on the 8th of September (the date of the order), and not on the 19th (the date of acceptance), that the name of the vendor was not on the paper at the time, that he only witnessed the signature of the vendee, that the line from the word “witness” down toward his name was put there at the same time as his signature. His affidavit is in substantial compliance with the statute. His testimony is not contradicted. We are not at liberty to reject it as false because we may guess that his signature if put there at the time would have been in a different position on the paper.

Third. Whether the vendee signed and delivered the contract as her voluntary act and deed is also a question of fact. We see no reason why the subscribing witness may not infer the voluntary character of the act from the facts as well as from a formal acknowledgment. To require the precise words of a formal acknowledgment where the statute does not require acknowledgment but proof, savors of archaic law where form was everything. With our more modern notions, the substance of the thing is of more importance, and in this, as in other cases, actions speak louder than' words. Section 22 of the Conveyances act does not require an acknowledgment where the proof is by the subscribing witness; in this respect, the language differs from the language used earlier in the section in dealing with ackno wledgm ents.

The result is that the decree appealed from is reversed and the record remitted for further proceedings in accordance with this opinion.

For affirmance—None.

For reversal—The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalis oh, Bogert, Vredenburgh, Cong-don, White, Heppenheimer—11.


author: Parker, J.

text:
    Michael Brady, complainant, et al., respondents, v. Carteret Realty Company, defendant-appellant.
    [Argued November 21st, 1913.
    Decided March 16th, 1914.]
    1. The act “to compel the determination of claims to real estate in certain cases and to quiet the title to the same” {Comp. 8tat. p. 5399) confers jurisdiction on the court of chancery to award possession of the lands involved in a suit to a defendant who is .found entitled to the same.
    2. A decree pursuant to said act which determines that a defendant is entitled to possession may be enforced by writ of assistance.
    3. A decree in a suit under said act that the defendant has an estate in fee-simple absolute in described lands, and that the complainant has no estate or interest therein, involves and includes a determination that the defendant is entitled to possession thereof.
    On appeal from an order advised by Vice-Chancellor Stevenson, whose opinion is reported in 81 N. J. Eq. (11 Buck.) 86; 8. C., •66 N. J. Eq. (21 Dick.) 2.18; 67 N. J. Eq. (1 Robb.) 61/.1; 68 N. J. Eq. (2 Robb.) 65; 70 N. J. Eq. (4 Robb.) 71£; 7.2 N. J. Eq. (2 Buck.) 90Jh

      Mr. Gilbert Collins; for the appellant.

      Mr. Linton Salterlhwaite (Ephraim Cutter on the brief), for the respondents.
   The opinion of the court was delivered by

Parker, J.

The complainant filed a bill under the statute (Comp. Stat. p. 6899) to quiet title to land of which he was in peaceable possession under claim of ownership, and the final decree in the suit, which -was appealed and affirmed by this court (72 N. J. Eq. [2 Buch.~\ 90.(), adjudged that the respondent, Carteret Realty Company, “has an estate in fee-simple absolute in said lands of which the complainant is in possession” (describing them), and it was “further ordered, adjudged and decreed that the said complainant has no estate or interest in the said lands.”

The questions now raised are whether this decree had the effect of an adjudication that the realty eonipany were entitled to the possession of the land, whether such an adjudication is supported by the statute, and also whether' fhe court of chancery can and should award process to put said company into possession or leave it to an action of ejectment.

The matter came before the vice-chancellor on a petition for a writ of assistance. It appeared that the respondents Thomas J. Brady and Charles Brady claimed only under Michael Brady, and so introduced no obstacle by way of an independent title, but were properly brought in by the petition. Blauvelt v. Smith, 22 N. J. Eq. (7 C. E. Gr.) 31.

The vice-chancellor refused the writ. As will appear by 'his opinion (81 N. J. Eq. [11 Buch.] 86), he held that in a proper case under the act, and when the question of right to possession was distinctly raised by proper pleadings, the court of chancery has jurisdiction to award possession to a defendant found entitled to it, and to enforce its decree by writ of assistance, but that in the present case such right of possession was neither claimed in the answer nor adjudged by the decree; and that an adjudication of title, simply, does not ipso facto carry the right of possession. He denied the relief upon the further ground that after the decree the company had brought suit in ejectment against the Bradys, who had hied the statutory plea of not guilty, and upon the refusal of the supreme court to strike out that plea as sham, had discontinued the suit. This refusal to strike out the plea he treated as throwing sufficient doubt upon the question of the right of possession to require a refusal of the writ.

lYe do not think that the action of the supreme court had any fair bearing on the question before the vice-chancellor. That court merely refused to strike out a plea alleged to be sham. It did not even assign any reason for its refusal, and was not required to do so, as its action on such a motion is purely discretionary and not subject to review. Practice act, 1903, § 111; Mershon v. Castres, 57 N. J. Law (28 Vr.) 484; Key v. Paul, 61 N. J. Law (32 Vr.) 133; Bruton v. Warden, 44 N. J. Law (15 Vr.) 177. An examination of the affidavits shows .that the decree was not laid before the court, but merely referred to in the moving affidavit; and that the motion was resisted on the sole ground of outstanding claims by strangers, a ground which may or may not have been open in the ejectment, but certainly was not opeir before the court of chancery if the decree settled the right of possession. And, non constat, but that if the company had gone to trial in the ejectment and offered its decree, the court would and should have directed a verdict in its favor.

This action of the supreme court, however, was manifestly not the main reliance of the vice-chancellor, but rather the omission, as he judged it, from the answer and decree, of the question of right to possession. We consider that his view of the scope of the record was altogether too narrow. Tie seems to have considered that when the decree adjudged that defendant had an estate in fee-simple absolute and that Brady had no estate whatever, the decree settled the title but not the right of possession (81 N. J. Eq. [11 Buch.] 89) as though one was distinct or separable from the other. But we are unable to take this view. Blackstone translates Coke’s definition of “title” (2 Bl. 194) as “the means whereby the owner of lands hath the just possession of his property;” and analyzes a complete title as including the three elements of possession, right of possession, and right of property. But Lord Coke’s Latin seems to have a different shade of meaning. lie says (lb.) Tit-ulus est justa causa possidendi id quod nostrum esi; i. e., the lawful reason for possessing what is ours. And this is the sense in which it is used in the Justices’ Court act with reference to pleas of title, and in the act on which this suit is based, so far at least as relates to the defendant, viz., the right of property and right of possession as distinct from the naked possession. It is the sense in which a plaintiff recovers on the strength of his own title in ejectment, as against one actually in possession. So, in Campfield v. Johnson, 21 N. J. Law (1 Zab.) 83, 85, Chief-Justice Green, in a trespass case from a justice’s court wherein title was pleaded, quoting again from Coke, says:

“Title is when a man hath lawful cause of entry into lands whereof another is seized. It signifies the means whereby a man comes to his lands or tenements. The word title includes that right, but is the more general word.”

And proceeded to add:

“Title is generally applied to signify the right to land and real effects. It is the right of possession or of property in lands, as distinguished from the actual possession, and it is in precisely-this sense that the word appears to have been used in the statute under consideration.” .(Justices’ Court act.) And in this very case, Chancellor Magie, in discussing what had taken place at the trial of the issue before the jury, said (68 N. J. Eq. [2 Robb.] 57) :
“The issue directed was in respect to the right of possession to some thirteen acres of land in Middlesex county. The realty company was the plaintiff and Brady was the defendant in the issue. At the trial the company proved a paper title to the locus in quo and rested. Brady then produced evidence tending to show that he had acquired title * * * by adverse pos- , session.”

That the chancellor was plainly right may be seen from a glance at the act itself. It is called “An act to compel the determination of claims to real estate, and to quiet the title to the same.” And the very first section begins by saying that when any person is in peaceable possession? of lands claiming to own the same and his title {i. c., his right'Se*his possession) is denied or disputed, he may file a bill in chancery to settle the title to said lands, &e. Any defendant answering and claiming any estate or interest shall specify such interest * ■ * * and set out the same through which such title * * * is claimed to be derived. An issue at law may be directed, and the court shall in conclusion finally settle and adjudge whether the defendant has any estate, interest or right in or encumbrance on the lands. “The final determination and decree in such suit shall fix and settle the rights of the parties in said lands and the same shall be binding and conclusive on all parties to the suit.” (Section 6.) Now, when it is considered that the filing of such a bill and its determination by the chancellor or by an issue of law thereon correspond, so far as the trial and proofs are concerned, to an action of ejectment to which the party out of possession is forced by the party in possession, on pain of the former’s claim being adjudged a nullify, and in which he has to bear the burden of proof (Ocean View Land Co. v. Loudenslager, 78 N. J. Eq. [8 Buch.] 572, 573), it would seem reasonably plain that a decree pursuant to the act and based on a verdict as for the plaintiff in an ejectment, adjudging that as between the land company and Bradjr that the company had a fee-simple absolute in the lands and Brady no estate or interest therein, had settled the conflicting claims of the parties, including the right of possession, about as fully as they could be settled in a court of law. It was so held in a somewhat similar case by the supreme court of the United States. Root v. Woolworih, 150 U. S. 401, 402, 412.

Holding, then, as we do, that the act confers jurisdiction on the court to award possession to a defendant, and that the present decree is so broad in its terms as necessarity to cover such award, we agree with the vice-chancellor that a court that has power to make a decree must of necessity have power to enforce it. In Bartholomew v. Lutheran Congregation, 35 Ohio St. 567, there was a bill to quiet title and a decree restoring possession to the defendant which the court said would be enforced by injunction. Authorities on the precise point are very scanty, and the statutory provisions vary. But the propriety of the practice of enforcing by writ of assistance or writ of possession, as it is sometimes called, a decree that expressly or by clear implication adjudicates a right of possession, is indicated in such decisions in our own state as Schenck v. Conover, 13 N. J. Eq. (2 Beas.) 220, and Beatty v. DeForest, 27 N. J. Eq. (12 C. E. Gr.) 482; and elsewhere in Gormley v. Clark, 134 U. S. 338; Harding v. Fuller, 141 Ill. 308, 30 N. E. Rep. 1053, and the old ease of Kershaw v. Thompson, 4 Johns. Ch. 609. Other cases are collected in 4 Cyc. 290.

The order brought up will be reversed and the record remitted to the court of chancery with directions to proceed upon the application for writ of assistance according to the usual practice of the court in such cases. The appellant is entitled to costs.

For affirmance-—None.

For reversal—The Chiee-Justice, Parker, Bergen, Min-turn, Kalisoh, Bogert, Vredenburgi-i, White, Heppenheimer—9.


text:
    Francis W. Frost, substituted administrator cum testamento annexo, &c., complainant-respondent, v. William T. Blackwell, Helen B. Howard (Rodman) et al., defendants-respondents, and Alice B. Frost et al., defendants-appellants.
    [Argued December 8th, 1913.
    Decided March 16th, 1914.]
    The language of the will in question in this cause interpreted to indicate the intended payment of a debt or obligation, and not the gift of a legacy.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported ante p. 184-.

      • The bill is filed by the substituted trustee and administrator with the will annexed of Sophia H. B. Blackwell, deceased, for a construction of her will and codicils and for directions in relation to the performance of the trust.
    So much of the will as is material to the controversy is as follows:

      “Sixth. I also give and bequeath to my nephews, Birney Blackwell and Frank B. Blackwell, Jr., all the surplus, which may remain from the sale of property deeded by me to Helen B. Howard or Rodman after the payment of the debt due by me to my husband, William T. Blackwell; which said property is situated in Bay City, Michigan, and was conveyed by me to said Helen B. Howard or Rodman as security for said debt. If the whole of said property shall not be sold to pay such debt, I give, devise and bequeath such property as shall remain unsold after such payment, to my said nephews absolutely and forever, and I direct that said property shall be conveyed to them by said Helen B. Howard or Bodman.

      “Seventh. All the rest, residue and remainder of my property, I give, devise and bequeath to my executor hereinafter named in trust, nevertheless for the following uses and purposes, to wit: First, to invest and reinvest the same and to pay the income thereof to my husband, William T. Blackwell, as long as he shall live; second, after the death of my said husband, I direct that said property shall be divided by my said executor between my nieces, Alice B. Blackwell and Jennet D. Blackwell, equally, share and share alike, or the issue of such as shall be dead, a child or children taking his, her or their mother’s share.”
    The first codicil, dated May 15th, 1903, contains the following provisions:

      “First. I direct my executors named in my said will to pay to Helen B. Howard or Bodman the sum of ten thousand dollars ($10,000) upon her deeding to my nephews, Birney Blackwell and Frank E. Blackwell, Jr., all the property deeded by me to her and situated in Bay City, Michigan. The said property in Michigan was deeded to said Helen B. Howard or Bodman by me as security for the payment of the sum of ten thousand dollars ($10,000), and upon the return thereof, as above stated, the said sum of ten thousand dollars ($10,000) is to be paid to her. Otherwise the provisions of my will are to remain unaffected by this codicil.”
    By a' second codicil’ made on- the same ñ&y, May 15th, 1903, testatrix made the following provision:
    “The sum of $10,000 to be given to Helen B. Bodman is not to encroach on at least thirteen thousand ($13,000) which is bequeathed to my nieces Alice B. Frost and Jennet D. Blackwell in case the stocks should decline in values.”
    ’ The property in Bay City, Michigan, was sold during the lifetime of the testatrix. Miss Howard made these conveyances at the request of the testatrix and her husband, William T. BlackAvell. The money arising from the sale of said property was paid to the testatrix.
    By his answer the defendant William T. Blackwell expressly waived any and all claim for debt or claim in the nature of debt whether legal or equitable against the estate of the testatrix. He also disclaimed any right to the sum of $10,000, mentioned in the will, but did claim the income thereof for life; and Miss Howard by her answer claimed the remainder therein after his death. The vice-chancellor sustained both claims except so far as the $13,000 should be impaired by paying Miss Howard in full.

      Mr. Gilbert Collins, for the appellants.

      Mr. Theodore D. Burling and Messrs. Jarnos .& Malcolm G. Buchanan, for the respondents William T. Blackwell and Helen B. Howard-Bodman.
   The opinion of the court was delivered by

Parker, J.

We are unable to concur in the construction of this will and codicil that was adopted by the learned vice-chancellor. In the sixth paragraph of the will testatrix says plainly that she owes her husband a debt, and that to secure its payment she has conveyed the Bay City property to Miss Howard. She expects it to be sold in whole or part to pay that debt, and any part unsold, or if all be sold, any surplus of the proceeds after paying the debt is to go to the two nephews Birney and Prank Blackwell.

In the first codicil she says that the amount of the debt for' which she transferred the property as security was $10,000. She has concluded that the nephews ought to have the Bay City property without impairment by reason of this debt, so she charges it on her estate at large by directing the executors to pay it, and on such pa)'ment> the pledge, being redeemed, is to go to the nephews intact.

The second codicil makes no change in this situation except to indicate that the “debt” to the husband is somewhat elastic in character, and to express the will of testatrix that (not to exceed $10,000) it shall be the amount available in the estate over a minin-mm of $13,000 intended for the nieces and given by way of remainder.

We think the theory that the $10,000 was a legacy to Miss Howard is untenable. If testatrix intended to give her a legacy of that or any other amount, the appropriate language to effect this purpose would be the very simplest that it is possible to use in a will. The word “given,” in the second codicil, is merely a loose use of language and must be read in connection until the preceding provisions.

The testamentary scheme is perfectly plain. The debt to the husband is to be first paid to his trustee; in full if the estate be $23,000 or over; if it be less than $23,000, the debt is scaled to the excess over $13,000. The nephews on payment of this get the Bay City property; and the residue of the estate is held to pay the husband an income for life with remainder over to the nieces. The fact that the Bay City property was sold in the lifetime of testatrix does not alter the rest of the scheme. The nephews are simply cut off. Helen B. Howard figures solely as a trustee for William T. Blackwell and has no beneficial interest as legatee or otherwise.

The decree of the court of chancery will be reversed and the record remitted to the end that a new decree be made in conformity with this opinion. The result makes it unnecessary to discuss the alleged failure of the “legacy” by sale of the property in testatrix’s lifetime.

For affirmance—None.

For reversal—The Chiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch^ Bogert, Vredenburgfi, Congdon, White, Heppeniieimer—12.


author: Bergen, J.

text:
    John S. Irving, appellant, v. Mutual Trust Company et al., respondents.
    [Submitted December 5th, 1913.
    Decided March 16th, 1914.]
    1. In order to entitle one to redeem collateral pledged to secure a debt for which he is liable as surety, he must pay, or tender, the entire debt due by his principal to the creditor holding a collateral, pledged to secure the payment of any and all liabilities due to him by the pledgor. It is not enough to offer to purchase the collateral for a price less than its value; the offer should be to redeem and thus preserve the pledgor’s right in any surplus.
    2. Where a creditor holding obligations of his debtor, some of' which are endorsed by third parties, and some not, the creditor may, in the absence of special pledge, appropriate the proceeds of the collateral to the payment of the obligations not endorsed in preference to those that are, unless there are circumstances existing which would render such procedure inequitable.
    On appeal from a decree of the court of chancery advised by Mr. J. Franklin Fort, as advisory master.

      Mr. Samuel Koestler, for the appellant.

      Messrs. Howe & Davis, for the Mutual Trust Company, respondent.

      Messrs. Pitney, Hardin & Slcinner, for the Federal Trust Company, respondent.
   The opinion of the court was delivered by

Bergen, J.

The appellant seeks by a bill in equity to enforce the application of the proceeds of a collateral security pledged by John W. Crooks to the Mutual Trust Company, to secure his indebtedness to it, to the payment of a note of [be pledgor for $1,700, dated November 30th, 1908, held by' the Mutual Trust Company on which the appellant was liable as endorser.

Tho material facts upon which this bill of complaint is founded are these: On the 1st day of Juty, 1905, the Mutual Trust Company loaned to John W. Crooks $4,900, who deposited with the trust company fifty shares of the stock of the Westfield Land and Improvement Company

“as collateral security for tlie pajnnent of this or any other liability or liabilities of the undersigned, direct or contingent, individual or firm, to said trust company now existing, or which hereafter may be contracted.”

The Mutual Trust Company subsequently purchased other obligations of Crooks, one of them being a note for $1,700, endorsed by the appellant, the total amount of which, excluding interest, the amount of which was not shown, was, on November 12th, 1908, $9,900, and on the 18th clay of November, 1908, it purchased from the Federal Trust Company a note made by Crooks payable on demand for the sum of $5,247.50, Crooks having previously, and on November 12th, 1908, written to the Mutual Trust Company as follows: •*

“Enclosed please find mj' demand note for five thousand two hundred and forty-seven dollars and fifty cents ($5,247.50) to be paid from the proceeds of the sale of the fifty shares of stock of the Westfield Land and Improvement Company, herewith assigned to you.”

The note upon which the appellant was endorser matured November 4th, 1908, and, not being paid, was duly protested, and on November 30th, 1908, paid by the proceeds of another note of like sum endorsed by the appellant. Prior to November 30th, and on November 12th, the stock of the Westfield Land and Improvement Company was transferred on the books of that company to the Mutual Trust Company, which continued to hold the stock until the Westfield Land and Improvement Company liquidated, and then applied the proceeds to the payment of the indebtedness of Crooks other than that on which the complainant was liable as endorser, and the appellant refusing to pay this note, the Mutual Trust Company brought suit to recover the amount due thereon, whereupon the appellant paid the note and filed his bill of complaint.

There was evidence that when the secretary and treasurer of the Mutual Trust Company, Mr. Phillips, brought the stock to the Westfield Land and Improvement Company, of which complainant ivas president, on November 12th, 1908, for transfer to the trust company', complainant offered to pay $10,000 for the stock which it was admitted was then worth $12,500, and also that Mr. Phillips promised complainant that the note on whic-h he was endorser should be paid out of the proceeds of the collateral stock when sold. The bill also charges that the Mutual Trust Company and the Federal Trust Company conspired and agreed that the note for $5,247.50 should be assigned to the Mutual Trust Company by the Federal Trust Company-in order that it might be protected by the collateral and so secure the Federal Trust Company from loss, and that the debt represented by said note “is not a bona fide indebtedness of said Crooks to the Mutual Trust Company.-” There does not appear in this record any prayer for subpoena for the Federal Trust Company, but it has appeared and answered. The advisory master, by whom this cause ivas heard, advised the chancellor that the bill be dismissed, and it was so decreed, from which complainant appeals.

The appellant rests his claim for a reversal upon several propositions, the first of which is, that as the note upon which he is bound as endorser was entitled to the benefit of the collateral, prior to the acquisition of the note for $5,247.50 from the Federal Trust Company, he had a vested interest in the collateral which the pledgee could not divest by any subsequently acquired, obligation of Crooks, and that when it purchased the latter note, it did so subject to a prior right of the complainant to have the collateral held as security for, and the proceeds applied in extinguishment of, the note upon which he was liable. Whatever rights the appellant had in the collateral, it was not enhanced or aided by the offer to purchase it for $10,000, because the right of a surety to redeem a pledge, if it exist, is not exercised by an offer of a price for the pledge. It must go beyond that and include the entire-debt for which it is held, for a surety’s light to subrogation only arises when he has paid the entire claim for which the creditor holds the collateral. Jones PI. & Col. Sec. (2d ed.) § 51S.

In the present case, the offer was not to redeem and thus preserve the right of the pledgor in any surplus, but to purchase the stock. This the pledgee could not agree to, even if the price covered the entire indebtedness, without the consent of the pledgor. Nor was there any legal tender made to the trust company ; all the complainant did was to make an offer to the secretary and treasurer, which the latter said he would submit to the company, for the purchase of the stock. When the appellant paid the note upon which he was endorser, January 19th, 1911, he wrote to the Mutual Trust Company notifying it that it

“should not transfer or dispose of said shares of stock as I intend to redeem the same upon equitable principles, and if we cannot agree upon the matter, I will apply to the court of chancery to be subrogated to your rights in and to said fifty shares of stock, and for that purpose I am now ready and willing to -pay to you the sums of money for which you are legally entitled to hold said shares of stock as collateral security.”

This notice also demanded the circumstances under which the note dated November 12th, 1908, was acquired by the Mutual Trust Company on the 18th day of that month, and concluded with the statement that on obtaining this information, he was ready to pay the sums of money for which the trust company was lawfully entitled to hold the collateral. This cannot be taken to be an offer to pay the entire indebtedness, and in addition to this the supplemental bill filed charges that this note does not represent any indebtedness by Crooks to the Mutual Trust Company, and that the trust company is not entitled in equity to apply the collateral towards the liquidation of this note.

There is no claim made in this case that there was any special pledge of this stock to secure the note endorsed by the appellant, and therefore his right to any benefit therefrom must rest upon the general rules of law applicable to the duty of a pledgee in appfying the collateral in discharge of the pledgor’s debts for which the security was pledged. In this case the written pledge declared that the stock was deposited as collateral securiiv for the payment of the note for $4,900, dated August 30th, 1905, and for any other liability or liabilities of the pledgor “now existing, or which may hereafter be contracted,” and what the appellant seeks is subrogation to the creditor’s right to this pledge without tendering or paying his entiré claim against the pledgor of the collateral, and this .the appellant is not entitled to, because tiie creditor has the primary right to apply the collateral towards the discharge of such debts, and in such order, as it may determine, unless there are circumstances which would render such procedure inequitable. It is true thatftlie collateral is a trust fund which cannot be released except upon the discharge of all the obligations of the principal debtor it is pledged to secure, without releasing sureties on such obligations, but if it be applied solely to the discharge of the debtor’s obligations, so far as it will extend, the surety has no vested right to have a preference in payment simply because his debt came into existence prior to another also entitled to the benefit of the collateral. Wilcox v. Fairhaven Bank et al., 89 Mass. (7 Allen) 270; Fall River National Bank v. Slade, 153 Mass, 415; 26 N. E. Rep. 843.

There is also another difficulty with complainant’s case, for under the admitted facts, the note upon which he was endorser came into existence after the note, the payment of which out of the collateral is his chief ground of complaint. The note upop which suit was brought, and which he paid, the amount of which he now seeks to have restored to him out of the proceeds of the collateral, did not mature until February 1st, 1909, and all of the obligations of Crooks to which the collateral was applied had matured prior to that date, and was subject to their payment before the obligation upon which the appellant was liable as surety had matured.

The next point raised is that, as the appellant claims, when Mr. Phillips, the secretary and treasurer of the Mutual Trust Company, came to him, as president of the Westfield land company, to transfer the stock to the Mutual Trust Company, Phillips agreed that the note of $1,7'00, endorsed by the appellant, should be paid out of the proceeds of the stock, and therefore an equity arose which the Mutual Trust Company cannot now evade. This agreement Phillips denies, but if it b.e admitted, it is not perceived how Mr. Phillips could bind the board of directors of his company by any such contract. He had gone, or been sent, to the Westfield Land and Improvement Company for the sole purpose of having the stock transferred, and no authority is shown which empowered him to make a contract binding on the trust company about a matter cl earl}'-not within the ordinary course^ of the business committed to him as secretary and treasurer of the Mutual Trust Company, and therefore it is not shown that the trust company made any such contract, whatever force it might have, if it existed.

The next point is that there was a conspiracy between the Federal Trust Company and the Mutual Trust Company to defraud the appellant by the transfer and purchase of the note for $5,249'.50, and in obtaining from the debtor a special pledge of this stock. There are some circumstances from which an inference may be drawn that there existed an agreement, or understanding, that if the Federal Trust Company obtained the note for the indebtedness of Crooks to it; and a pledge of the stock, the Mutual company would take it, but if this be admitted, we fail to see why the Federal company had not a right to secure a just debt in this manner. It amounted to nothing more than persuading a debtor to pledge his stock to secure a debt, and while the proceeding may have been enterprising, it cannot be said to be fraudulent, for so far as the record shows, the Federal Trust Company had no knowledge of complainant’s endorsement or the amount of- Crooks’ liability to the Mutual Trust Company. That the debt for which this note was given was bona fide was shown, and there is no evidence of a conspiracy to defraud the appellant.

The only other important question to be solved is whether the Mutual Trust Company had a right to apply the collateral to the note purchased November 18th for $5,249'.50. This, we think, must be answered in the affirmative. Except the letter of November 12th, relating to this note, there was no specific pledge of the collateral as security for any particular debt other than the note for $4,900 given when the original written pledge was executed, and that was to secure “this or any other liability * * * now existing, or which hereafter may be contracted,” and the collateral was applicable to any existing, or subsequent, debt of the pledgor in the order selected by the pledgee, even if part of the loans were secured by endorsers. It is urged by the appellant that his right to subrogation once existing it could not be changed. Granting, but not conceding this, what was his right ? It was to have the collateral applied in discharge of Crooks's debts to the Mutual Trust Company subject to the legal effect of the contract of pledge, which was not limited to any particular debt, but extended to any then existing or thereafter created, and certainly in the absence of any direction b]' the debtor, the pledgee might apply it to any of the several obligations, the payment of which it was pledged to secure.

The decree will be affirmed, with costs.

For affirmance—The Cujee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisgti, Bogert, Yredknburgh, Oongdon, White, IIeppenheimer—12.

For reversal—None.


author: Vredenburgi-t, J.

text:
    Ida Caroline Pittis, respondent, v. Albert Pittis, appellant.
    [Decided January 29th, 1914.]
    1. In a suit for divorce from bed and board brought by the wife against her husband upon the ground of his extreme cruelty toward her*, where it appeared from the evidence that upon the occasion of such alleged cruelty she had provoked him to sudden anger by accusing him of a crime of a peculiarly revolting nature of which he was innocent, a decree for permanent separation should be denied.
    2. The principal object sought to be obtained by the court’s decree of separation in suits of the prese'nt character is the reasonable protection of the wife against future probable acts of cruelty, and where the evidence shows that the previous acts of alleged cruelty of the husband were provoked solely by the wife’s voluntary and malicious accusations against him, the necessity for such a decree does not exist.

      On appeal from a decree of the court of chancery advised by Mr. J. Franklin Fort, as advisory master.

      Messrs. Nelson & William N. Runyon and Mr. Charles A. Reed, for the appellant.

      Mr. Charles L. Borgmeyer, for the appellee.
   The opinion of the court was delivered by

Vredenburgi-t, J.

The defendant has appealed from a decree of the court of chancery adjudging him guilty of extreme cruelty toward his wife so as to render it unsafe and improper for her to cohabit with him, and that they be separated from bed and board forever.

Although the evidence produced before the advisory master covers a period of eight and a half years of the married life of the parties and is of great volume, yet I think but a comparatively brief statement of that evidence will suffice to present the point in which we differ from the conclusion reached by the learned master.

The defendant is about forty years of age and has been for many years a physician in the active practice of his profession in the city of Plainfield, New Jersey. Pic is the owner of two dwelling-houses there, in one or the other of which he and the petitioner have constantly lived ever since their marriage in May, 1904. They never have had children.

The doctor’s parents died before his marriage, leaving valuable real and personal property in New York City, which came under his active management,'and he seems, by the evidence, to have collected the rents and profits of the property, and to have divided it among his brothers and sisters equally, he retaining his own share. He became the guardian of the property of his infant sister, who was about thirteen years old at the time of his marriage.

Whether or not this trust situation of the defendant toward his family induced him to feel an obligation to furnish a home for his minor sister, and his two younger brothers, we can only imperfectly conjecture,-because his reason for so doing was not fully inquired into at the hearing before the master, except that defendant stated he had not sufficient means to run the house without them. At all events, after his marriage, he received into his home, as members of his household (without objection, so far as appears, from his wife), his aunt, two of his unmarried brothers and liis said infant ward.

His conduct in this regard has been severely commented upon by the learned master in his conclusions, he there saying, infer alia, that this act of the defendant was almost certain to lead to trouble between people who were newly married.

While it may be admitted there is force in this criticism under ordinary conditions, it does not seem necessarily to follow that under all circumstances trouble would ensue. It may have been the fact here that the wife in her first attempts at housekeeping had ample reason to welcome the assistance and example of experienced friendly hands to lessen the work and reduce the cares of her housekeeping.

But even if this had been an error in judgment on the defendant’s part which he, without injustice to those of his family whose interests he had at stake, could have reasonably avoided, it furnished no excuse, much less justification, for the accusations made by the wife against the defendant, disclosed by the evidence to be referred to.

This court, in the early case of English v. English, 27 N. J. Eq. (12 C. E. Gr.) 579, declared in a suit by a wife for divorce on the ground of the extreme cruelty of her husband, that the decree of final separation in such eases was made mainly as a protection agaipst future probable acts of cruelty.

In the light of this principle where the court can see from the circumstances under which the violence to the wife has occurred, that it is fairly attributable to the sudden, but natural, anger of the husband under the impulse of his momentary irritation (on occasions when he has been goaded to the act by her accusations against him of a revolting crime of which he was innocent), a decree for permanent separation to secure the wife’s future protection, would seem to be unwarranted, for the reason that the husband’s conduct in such regard depends upon a provocation resting entirely within the voluntary control of his wife.

The finding by the master on tbe subject of the alleged extreme cruelty of the defendant upon which the decree below is rested, is thus expressed in his conclusions, viz.: “That he (defendant) struck his wife at least twice the proof seems clearly to establish. That he used offensive language toward her is also shown by the testimony of Thomas Campbell, Martha Fielder, Edward Lewis Lee and Ida Borsum. That he frequently told her to go home to her people and that he would not live with her is also clear. One of the strikings the defendant admits. This was in the automobile on a trip to Westfield. This was so serious that she complained to Police Judge Collins on arrival at Westfield. lie corroborates her and the character of her injiiries.”

This occurrence in the automobile was followed by the actual separation of these parties, and its importance in the cause is such, that when the facts are correct!}' understood they go far, I think, toward fixing the real blame (for the acts of the defendant commented upon by the master) upon the petitioner herself. The accusation she then uttered, repeatedly, against the doctor, in the presence of his young brother, was one of the gravest which the tongue of a wife or-husband could charge against the other.

While it becomes necessary for the proper understanding of the gravity of these charges that their substance should be here very briefly set forth, the exact'words used in the testimony need not be set down.

The three persons who occupied the automobile were the petitioner, the defendant and his brother Bertram. The defendant and his- brother Bertram testify that on the way to West-field the petitioner said to her husband that he had had criminal relations with his sister, his ward. They each testify that she repeated the charge and that the “strikings” by the defendant of the petitioner, referred to in the master’s report, followed these charges.

An examination of the petitioner’s own testimony on this subject will show, I think, a virtual admission of the making by her of the substance of these accusations against her husband. While it is true that, in form, she denies making them, yet it is manifest from her admissions that she intended to convey, by her language to the defendant, her meaning to the effect that she believed he had had improper relations with his sister.

A brief extract from her testimony as elicited by questions put to her by her counsel will show this:

“Q. Did you accuse Mm of having any improper relations with his sister ?
“A. I did not. I said he only led me to believe things that were not proper for a brother to do.
“Q. You did not mean that he had improper relations?
“A. Why, no.”

Two other witnesses testified that on two other occasions prior to the commencement of this suit, they heard the petitioner say to the defendant that he had had criminal relations with his sister.

But it is needless to refer to other cumulative evidence on this subject. The clear weight of uncontradieted and unimpéaehed testimony shows that the petitioner made the accusations in question, and there seems to be no room for a doubt, and no escape from the conviction, that they were maliciously uttered by the petitioner, and were sufficient to lead to and provoke the blows of the defendant which immediately followed.

The decree below should be reversed.

For affirmance—None.

For reversal—The Chtep-Jtjsttcio, Garrison, Swayze, Teenchard, Parker. .Kaltsoh, Vredenbuegit, Congdon, White, Heppenhetmer—10.


author: Per Curiam.

text:
    Henry W. Doremus et al. v. Mayor and Aldermen of the City of Paterson. Henry W. Doremus et al. v. Mayor and Aldermen of the City of Paterson.
    [Argued November 20th, 1913.
    Decided March 16th, 1914.]
    On cross-appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported, in 81 N. J. Eg. {11 Buck.) 27.

      Mr. J. Edward Ás'hmead and Mr. Chauncey G. Barker, for Doremus and others.

      Mr. Edward F. Merrey, for.the city of Paterson.
   Per Curiam.

These are appeals taken from a decree of the court of chancery fixing the amounts which certain riparian owners along the Passaic river are severally entitled to receive from the city of Paterson, as compensation for injury done to their-respective properties through the pollution of the river by the discharge of the city sewage into it at a point above the lands of these owners. The city appeals because, as it says, the awards made to these riparian owners are too high; the riparian owners appeal upon the ground, as they assert, that the awards are too low.

The learned vice-chancellor to whom the case was referred for hearing determined the compensation of the various riparian owners after a very thorough, consideration of the proofs submitted by the parties. After a careful examination of these proofs on our part we cannot say that in the case of any riparian owner the amount awarded to him is either more or less than the just compensation to which lie is entitled fox the injuries which were the subject-matter of the controversy.

The decree appealed from will be affirmed.

No. 16—

For affirmance—The Chief-Justice, Trbnchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Cong-don, White, Heppenheimer—11.

For reversal—None.

No. 18—

For affirmance—The Chief-Justice, Trbnchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Cong-don, White, Heppenheimer—11.

For reversal—None.