text:
    Annie Horwath, petitioner, v. Ernest Horwath, defendant.
    [Decided April 26th, 1920.]
    1. Where a husband provided his wife with merely food and shelter in his father’s house and refused to perform any of his other marital duties, refusing sexual intercourse with her, holding no intercourse whatever with her and not providing her with clothing, he is guilty of willful and obstinate desertion.
    2. After the continuance of such a desertion for a time sufficiently long to indicate its actuality, the wife is no more required to remain in that house than she would be in a separate abode from which the husband had fled.
    3. The subsequent leaving of the bouse by the wife by no means presupposes an acquiescence by her in the desertion — especially where, by remaining, she Was subjected to indignities by other members of the household.
    On petition for divorce. On pleading's and proofs. On final hearing.

      Mr. Romulus P. Rimo, for the petitioner.

      Mr. Henry M. Hartman, for the defendant.
   Buchanan, V. C.

The petition is filed by the wife for divorce a vinculo for the cause of desertion. The preliminary jurisdictional requisites being sufficiently established, the issue turns upon whether or not thle circumstances disclosed by the evidence amount to a desertion of the statutory character, and whether or not those circumstances rest upon sufficient corroboration of the testimony of the wife.

The petitioner testified that defendant seduced her under promise of marriage, but refused to marry her, and only did so to avoid imprisonment after trial and conviction of the seduction, in the criminal court; that thle marriage took place in the city hall on June 30th, 1915 (none of the husband’s family attending except his father), and immediately after the ceremony she returned to the house of a Mrs. Noyes, where she was employed as a maid in domestic service, while her husband returned to the house of his parents; that they thus continued to live respectively until July 4th, 1915, when the time of her confinement was approaching and she left the Noj^es house and went first to her brother’s home and then, upon the advice of her sister-in-law; went to her husband at the home of his parents; that She stayed there with him for four or five weeks, leaving there on August 12th, 1915, to go back to her brother’s, where her baby was finally bom on September 23d, 1915.

After the birth of the child she returned to work and live at Mrs. Noyes’, staying there until a week or two after the child died, August 29th, 1916, leaving of filler own Volition to enter the service and residence of a Mrs. Owen, with whom she stayed about seventeen months, and then returned to the service and residence of Mrs. Noyes, where she still remained at the time of the hearing.

Her husband never came to see her, or communicated with her, nor did any of his family, either prior or subsequent to her few weeks’ stay at his father’s house, nor did ha or any of his family ever come to see the child or make any effort so to do— although hie and his father attended the church services at the funeral of the child and paid the expenses of the funeral. During her stay at the Horwath house her husband occupied a room separate and apart from her, with 'his brother, petitioner being giren and occupying a room alone, this arrangement necessitating that defendant’s sister occupy the same room with her father and mother.

All of the foregoing is directly corroborated by other witnesses — chiefly defendant’s witness — and is not disputed.

Now as to the cause of the separation. Tlhle defendant’s father says that at the time of the marriage the husband was earning only $10 a week, and arrangements had been made by the father and son that the married couple should come and lire at thie home of the husband’s parents; that aifter the ceremony he heard his son say to petitioner, “Now we got married, now come down and lire with us,” but doesn’t remember her reply. It is easy to understand why the wife should hare been disinclined to go to lire at the home of the father who had aided his son in the endeavor to avoid the marriage he had promised, but we may assume that petitioner was not justified at that time in failing to go to lire with her hlusband at his father’s home. About a week after that she did go ’and take up her home there.

Her testimony as to the conditions of her life there and the reasons for her leaving is to the following effect: That none of the family would speak to her except the mother, who cursed her and called her a Whore; that she worked about the house doing everything but the cooldng; that the mother would not permit petitioners husband to speak to petitioner; that her room had only a bed and trunk in it; that the mother was mean to her and never satisfied with the work done by petitioner; that she was afraid to eat for fear the mother would poison her, and finally she overheard the mother tell the father that when the birth of tlhle child should occur she was not going to call a doctor or midwife or anyone, or even let any neighbors come in (this Was on the day she left), and on her telling this to her husband he told her that if she didn’t like to stay there she could go where she pleased, and he would do just as he pleased.

All of this, or. practically all of it, was denied by tlie mother and father, and part of it by a neighbor, Mrs. Turay. The latter when pinned down admitted she had only seen petitioner two or three times in the four or five weeks, although her direct testimony was to the effect that she had seen her every day, and she was so obviously anxious to volunteer and testify to anything she thought would help the Horvaths that I regard most of her testimony as worthless. There are, however, one or two bits of it which impress me as having much significance. One of these relates to the petitioner’s room. She says that Mrs. Horwath twice took her to,this room “to show her what a nice room it was,” once before petitioner came there to live, and the other time the day after petitioner had left. The other relates to the actual leaving by petitioner. She says that they (Mrs. Turay and the mother) were sitting in the kitchen and saw petitioner leave the house and go into a bakery store on the corner, that the mother at once said that Annie (the petitioner) had left, she didn’t know why she left, that she (the mother) hadn’t said a word. It appears that although Annie took some clothes with her, they were few and in a small bundle wrapped up in paper — so that the mother could by no means see what was in the bundle. Obviously, then, the only way in which she could have known that Annie was taking leave of the house must have been from something that had transpired earlier. Eurthermore, that language of the mother —“I didn’t say a word” — endeavoring to exculpate herself from blame for the daughter-in-law’s leaving, indicated an existence and realization of guilt in the matter. The 'mother in her testimony in nowise denied or modified the Turay testimony.

As to the father and mother, portions of their testimony are quite obviously false. A mere preponderance of verbal testimony is of course by no means controlling. The testimony must needs be such as can be believed. Daggers v. Van Dyck, 37 N. J. Eq. 130 (at p. 132); Whelan v. Osgoodby, 62 N. J. Eq. 571 (at p. 575). It is impossible to believe that the mother “liked” the daughter-in-law and that they were “good friends,” or that her room “was furnished better than the other rooms,” when it is borne in mind that the parents, as they admit, not only did not advise their son to many the girl whom he had wronged, but helped him to defend the trial and only told the son as long as he had been convicted, to marry her “to avoid trouble,” i. e., imprisonment. The father says: “I didn’t want to be her father-in-law.” Their hostility was apparent on the witness-stand, and its continuous existence-is absolutely proven _by their actions. What other1 explanation can there be for a mother-in-law making no effort to see or inquire for the girl whom the son had wronged (who was about to, and did later, give birth to her son’s child), and who continued the same attitude after the child’s birth and death? The explanation the mother gives — “because Annie left the house” — is ridiculous. She also gives as the reason for her not attending the marriage, and the child’s funeral, that she was operated on and was too sick. But it later develops that the operation was only two years ago (the marriage, and child’s birth and death being four and five years ago) and that her sick and weak condition was the same as at the time of the hearing in this case — which she found herself able to attend. There is also corroboration of part of the wife’s story of the mother-in-law’s character and actions in the testimony of a neighbor, Mrs. Gomany. But there is ample corroboration from all the surrounding circumstances — indeed from the actions and testimony' of the husband’s parents alone; and another circumstance of weight in a suit defended with such obvious hostility, is that neither the defendant himself, nor his brother or sister were called to testify (the son was only called at my suggestion and his testimony went no further than his earning capaeity). See Robinson v. Robinson, 83 N. J. Eq. 150 (at p. 154), affirmed, 84 N. J. Eq. 201; Parmly v. Parmly, 106 Atl. Rep. 456 (at p. 459).

I am entirely convinced therefore that the father and mother were continuously and actively hostile to petitioner, that the son was influenced in the same behalf by his parents, that the 'petitioner’s testimony of the treatment given her at the Horwath home is true and sufficiently corroborated; and in my opinion that treatment culminating in the avowed purpose to deprive her of medical or other assistance at her confinement, was cruelty constituting sufficient justification for her leaving'— and being acquiesced in by the husband constituted constructive desertion on his part. (The further comment may be added, that the story of the intent to keep doctor and midwife away is not at all the kind of story which would be apt to be manufactured by a girl like the petitioner under these circumstances. Eor a false story she would have chosen acts or threats of physical violence — and would furthermore have alleged the threats to have been made directly to her,, with no other witness present, instead of to the father, since it was obvious that both father and mother would deny it.)

I have dealt with the case thus far as one of constructive desertion, because it was upon that theory that the case was tried by counsel on both sides and their respective briefs submitted. It is. however, I tliiplc, obvious from all of the circumstances in the case, that resort need not be had to the doctrine of constructive desertion — that that which occurred was in fact actual desertion by the husband.

When the wife came to her husband at the Horwath home, she was provided with food and shelter — nothing more. The husband failed and refused to perform any other of his marital duties. Not only was there no sexual intercourse, but no intercourse whatever. He did not even provide her with clothing — the excuse being that she had caused so great an expense in the defence of the seduction proceedings that he could not afford it. It is clear that the husband intended to do nothing more than he was compelled to do — first, in the actual marriage, and second, in his relationship with her after marriage. He supported her, that is, he provided her with food and shelter, only because he was legally obliged to do so, and he did so in the least expensive way possible, namely, at his parents’ home; refusing his wife’s requests to provide a home and be a husband.

This conduct of his clearly constituted a willful and obstinate desertion. Rector v. Rector, 79 Atl. Rep. 295; Raymond v. Raymond, 79 Atl. Rep. 430.

It need not be added that the desertion is none the less the husband’s act, because he may have been influenced thereto by Iris father and mother; nor need I point again to the corroboration supplied by the entire evidence in the case. It would indeed be the natural and probable thing to expect that the husband’s conduct, after such a marriage as this, with all its accompanying circumstances, would be just what transpired.

The only variation in the present case from such a desertion as occurred in the Raymond and Rector cases is that the wife did not remain in the same house with the husband throughout the entire period of desertion, but left after some four weeks. I cannot see that this is of the slightest materiality. If the married pair had had a separate home and the husband had deserted the wife by leaving that house, no one would contend that the wife must remain in the house until the desertion period should be complete, or that her act in leaving it after the desertion commenced would be any evidence of an acquiescence on her part in the separation. ■

The case sub judice presents no essential variation from this. The husband withdrew from and deserted the wife, although continuing to live under the same roof. To say that her subsequent departure from that house (even without the immediate actuating cause which occurred on the day of her leaving) evinces a consent to the separation, would in my opinion be an averment of a conclusiou without the slightest foundation therefor. To require her to stay in the same house and suffer the indignities offered her by the inmates thereof would be to require her to submit to insult as well as injury. That she found it too high a price to pay for her food and shelter is entirely natural.

The desertion was the husband’s act' — not hers. Having commenced it, the duty was upon him, not her, to terminate it. She was under no duty to make advances to him, nor to stay in the house simply in order to be close at hand in case his frame of mind, should change. The desertion having thus commenced, it would continue until the husband terminated it, or made some sufficient attempt so to do. This he never did; notwithstanding the birth of the child and the wife’s message to him at the time (corroborative of the fact that the separation was against her desire) he never made the slightest attempt to see or communicate with her. His conduct and that of his family, throughout, even down to and including the hearing of the cause, showed beyond the slightest doubt that neither he or they had any feeling but hostility toward her, and a desire to avoid the payment of alimony.

Hpon the question of his earnings, the only testimony was that of the husband himself — to the effect that he was working for the J. L. Mott Company on some kind of machine work, for nine and three-quarters hours per day at forty-two cents an hour, and his average wages amounted to $22.50 per week; that he lived with his parents and paid them $12 a week board. He has had seven years’ experience at his trade, and from his appearance and the well known conditions as to labor and wages obtaining at present, and for some time past, I am quite sure that he could earn more if he chose. The smallness of his wage and the large proportion paid to his mother for board indicate' an attempt to minimize such alimony as he might be required to pay, if his wife were successful in her suit. I am satisfied that he ean and should pay to petitioner the sum of $10 per week.

A decree will be advised in accordance with the foregoing.


source: Caselaw Access Project

author: Buchanan, V. C.

license: Public Domain

text:
    Township of Southampton v. Allen J. Scott.
    [Decided May 17th, 1920.]
    1. Where 'the proofs show that a landowner had filled in a dátela which was part ¡oí 'an adjacent public road, amid toad also taken drawn fences otn the public road, and had cultivated and raised crops on the soil thereof, thereby interfering with the flow of drainage water along the -road, and thereby rendering travel along the road difficult 'and at time® dangerous, the landowner will be enjoined ran final toeairing from committing such public nuisance, at ibhe suit of tire township which is responsible for ittoe maintenance of the road, even though the township may have a remedy at law against the defendant.
    2. Although equity ordinarily has interfered only with reluctance to restrain a public nuisance for which an indictment would lie, nevertheless the creation and maintenance in a public highway of conditions producing actual danger of injury to person or property of travelers, is a public injury which will be restrained.
    3. The power of a court of equity to restrain a public nuisance which is also a misdemeanor is undoubted; and the tendency is toward the exercise of that power more frequently than in former days.
    On pleadings and proofs. On final hearing.

      Mr. Robert Peacoclc, for the complainant.

      Mr. George M. Hillman, for the defendant.
   Buchanan, V. C.

The hill is filed by the township of Southampton to restrain the defendant from maintaining a public nuisance or nuisances in two public roads, known as the “Ayrestown Road” and the “Purgatory Road.” Both roads are admittedly under the jurisdiction and control of the township.

There was little if any dispute as to the commission by defendant of the acts of which’ he was accused; the greater part thereof being indeed expressly admitted by defendant in his testimony. At any rate I am entirely satisfied from the evidence that a ditch or gutter was constructed on the easterly side of the “Purgatory Road” at its junction with the “Ayrestown Road,” when the “Purgatory Road” was first opened and constructed, some thirty-fiVe or forty years ago. This ditch or gutter was for the purpose of draining not merely the “Purgatory Road,” but also the “Ayrestown Road,” and it did fulfill that purpose. Naturally the action of the elements in the course of time tended to fill up this ditch — and there was some evidence tending to show that it was cleaned out by the township on at least one occasion a number of years ago. Some years later defendant removed the fence dividing the road from his adjoining field and thereafter so ploughed and cultivated that -field as to fill up the ditch. A year or two ago the township dug it out, and defendant immediately filled it up again, and this was repeated several times. His excuse was that he wanted to be able to enter and leave his field from any point in that highway, and that the ditch had been dug out too deep to permit of this; also that he wanted to cultivate his field right up to the highway line and for this purpose to drive his horses, while ploughing and cultivating, out into the highway.

On the Ayrestown road he likewise took down the fence dividing his field from that highway, and has since continuously cultivated and grown crops along the highway for a distance of some seven or eight feet out into the highway beyond the line of the farm fence (which had existed for thirty or thirty-five years). This appropriation of the highway for agricultural purposes obliterated the gutter or ditch on the south side of the Ayrestown road. His excuse for this was that it did no harm since there was no encroachment on the improved portion of the road, and that the growing crops looked better than the weedy ditch. He also has constructed a driveway or approach to his farm house, filling in from the improved portion of the roadway, and thus making a dam across the gutter or ditch along the south side of the Ayrestown road, and interfering with the flow of drainage water along the same.

The results of these acts has been to interfere with the drainage of the roads, and at times to cause the sides of the roads to be overflowed, and on one or two occasions' the water covered the crown of the Ayrestown road. In severe cold weather such as was experienced in the past winter, this water froze and travel was thereby rendered dangerous, notwithstanding a clear roadway sufficiently wide for one team was left.

That the acts complained of constitute a public nuisance is obvious, and defendant admits that they have been done by him in portions of the lands which he admits are within the confines of these public highways.

He contends that the nuisance resulting is merely theoretical and not actual — injuria. absque damnum — and therefore no' cognizance should be taken thereof by this court; and further contends that under the authorities, no decree for restraint should be made by this court inasmuch as the township has other remedies, such as by indictment, ejectment, and action's at law for damages, and should be remitted thereto.

With the first contention I cannot agree. The roads are for the use of the entire public, not merely residents of Southampton township, who may be familiar with the conditions and so able to avoid danger. There is actual damage to the public when it is excluded from portions of the public highway, and when the highway is put in such condition as to create dangers in travel on and over it, even if those dangers arise only infrequently. The creation of the dangerous condition is sufficient; it is not necessary to wait until some travelers have actually sustained damage to person or property therefrom.

As to the second contention, the jurisdiction of this court to restrain a public nuisance at the suit of a township or other public authority is well settled, and is not disputed. Greenwich Township v. Easton and Amboy Railroad Co., 24 N. J. Eq. 217; affirmed, 25 N. J. Eq. 565.

In support of the second contention, counsel for defendant cites Attorney-General v. New Jersey Railroad and Transportation Co., 3 N. J. Eq. 136; Attorney-General v. Heishon, 18 N. J. Eq. 410; Attorney-General v. Brown, 24 N. J. Eq. 89; At torney-General v. Delaware and Bound Brook Railroad Co., 27 N. J. Eq. 1; Inhabitants of Woodbridge v. Inslee, 37 N. J. Eq. 397; Raritan Township v. Port Reading Railroad Co., 49 N. J. Eq. 11; Morris and Essex Railroad Co. v. Prudden, 20 N. J. Eq. 530; Grey, Attorney-General, v. Greenville and Hudson Railway Co., 59 N. J. Eq. 372, and Attorney-General v. Hudson County Water Co., 76 N. J. Eq. 543.

It would serve no good purpose, I apprehend, to review these cases in detail. Suffice it to say that a careful examination of them and of numerous others shows that this court is by no means bound on precedent or authority to withhold the exercise of its restraining arm under the circumstances of the case sub judice. In every case where restraint was denied there will be found to have existed one or more of the following circumstances, namely, the application being for a preliminary restraint; the legal rights of the parties being in dispute; the completion of the construction alleged to constitute the nuisance; delay or ac-. quiescence by the public while the wrork was being constructed. I have been able to find no instance of denial of restraint upon final hearing for the sole reason that the remedy at law was adequate.

It is true that in Township of Raritan v. Port Reading Railroad Co. it is said that “Where the grievance is a misdemeanor, subject to indictment, equity will interfere with great reluctance, even though its intervention be sought by the attorney-general, and then only to prevent a very serious public injury,” citing some of the cases urged by the present defendant. It may be pointed out that the actual decisions in the cases cited scarcely support the doctrine enunciated (Cf. Attorney-General v. Hudson River Railroad Co., 9 N. J. Eq. 526, at p. 560); that the application was for a preliminary injunction; and that the facts as found by 'the court showed but trifling (if any) inconvenience, and no> danger of actual damage, to the public.

The language in the Raritan Township Case is cited or quoted in Grey v. Greenville and Hudson Railway Co., supra, and Attorney-General v. Hudson Water Go., supra, but with the significant omission of the word “very” before “serious public injur3r;” and in the Greenville and Hudson Railway Co. Case, attention is called to “the clear tendency of the courts to increase rather than diminish the remedies necessary for the complete protection of the public interest in highways.”

At all events, I am of the opinion, as already indicated, that the injury to the public shown by the evidence in this case to be the creation, even though infrequently, of conditions which might well result in actual injury to person or property of the traveling public, is a sufficiently “serious public injury” to warrant the intervention of this court. The case has been fully tried, and at considerable length; the unwarranted intrusion by defendant upon the highway is clear and admitted; the acts of the defendant, or some of them have been repeated again and again. The observations of Vice-Chancellor Pitney in Hennessy v. Carmony, 50 N. J. Eq. 616 (at p. 623), in dealing with a similar argument by defendant, seem to me equally appropriate to the case at bar. The remedy by indictment may be theoretically adequate, but in practical experience its adequacy is frequently not so apparent. Public authorities and grand juries are but human, and in many instances are reluctant to resort to such drastic measures as the indictment of a friend or neighbor. And surely upon any other theory the public is as well entitled as an individual to the aid of equity.

A decree will be advised, therefore, restraining defendant from continuing the public nuisances in question, within the admitted lines of the highways.


text:
    Lucy Backes Carey, petitioner, v. David Stuart Carey.
    [Decided May 17th, 1920.]
    1. In a suit £o<r divorce amd custody of Children, -where am application is made for a preliminlaxy ingumotiom against a judge of the «ramty juvenile court to restrain him from sending the children to a children’s home, such application will not be granted in the absence of any entry of judgment in .the juvenile court, although it is alleged thait the proceedings in that count were irregular, the evidence inisuffieienlti, and that the -whole proceeding in that count wla>s am interference with the suit in this eo-urt.
    2. The dh-amceUor, ais parens patria! of infants, will nioit, except in a clear case of pressing necessity, restrain the carrying out of legislative provisions relative to the -Welfare of children by the authorities duly constituted therefor.
    3. Quwre, as to the validity of an order dealing with even the temporary custody of a child, made by the court of quarter sessions, under the Children’s Welfare act (P. L. 1915 p. ttl) when such child has previously become a ward of chancery by the institution of a suit in chancery affecting its person or property.
    On petition, &e. On application for preliminary restraint.

      Mr. William Hartshorne, for the motion.
   Buchanan, V. C.

The original petition in this cause is filed by the wife for divorce and the custody of the three children, two, five and six years of age.

Application by the wife was subsequently made in the cause for alimony pendente lite and custody pendente like. When that application came on for hearing the circumstances disclosed led to a continuance of the hearing thereon until the final hearing of the cause, with leave, however, to either party to bring on the same at an earlier date, on notice.

Prior to the above-mentioned application by the wife, but subsequent to the commencement of the suit, proceedings were instituted by certain of the public authorities in the county where the parties resided, against both parents, under the act of April 8th, 1915, commonly known as the Children’s Welfare act (P. L. 1915 p. 441), and subsequent to the coming on and continuance of the wife’s application in this court, as above mentioned, a hearing was had on the complaint under this statute, before the juvenile court, and that court found the defendants “guilty,” as appears by the minutes of that court, and continued the matter for one month, and advised that during that time “something should be done by the parties in interest; otherwise he would place the children in St. Michael’s Home at Hopewell.” No order or judgment was entered.

Application is now made to restrain the. incumbent of the office of judge of the said juvenile court from sending the children to said home. The first ground urged in support thereof, is that the proceedings under the Children’s Welfare act being purely statutory and there having been a failure in several respects to observe the statutory requirements, the juvenile court had entirely failed to acquire jurisdiction. This alone would not seem to warrant interference by this court, in the absence of a showing that there was no adequate redress at law such as by certiorcuri and stay, or other appropriate proceeding.

It is further urged that the evidence before the juvenile court was not such as to warrant the removal of the children from the mother. This court is not a court of review for the proceedings in the juvenile court, and even if it were alleged that there had been an abuse of discretion by the person holding the office of judge of that court, not only has there been no judgment or order entered, but the entire evidence is not before this court in the moving papers.

Lastly, it is contended that the juvenile court proceedings are an interference with the proceedings in this court in the action pending herein, the matter of the custody of the children having come into the actual exercise of this court’s jurisdiction upon the commencement oJE the divorce action. This .raises a much more difficult question, one which ought not to be adjudicated upon a motion of this kind unless absolutely necessary, and which under the circumstances of this case, I do not deem it necessary to decide. The jurisdiction of this court, as pcorens patrice, over the persons and property of infants is of course well known and wide in scope. It has been, repeatedly held that the institution of any proceedings in this court which look toward the affecting of the person or property of the infant, is sufficient then and there to constitute that infant a ward of this court. On the other hand, the statute in question does not deal solely with the custody of children. Many of its provisions deal with punishment of parents for cruelty to or neglect of children. The proceedings in the case at bar were .on complaints against the parents for neglect of the children. It cannot therefore be said as to the proceedings under that act that there is any interference with the custody of the children, or with the jurisdiction of this court over such children, by the mere commencement or maintenance of such proceedings, nor by the entry of judgment, if that judgment be punitive against the parents only. Not until the entry of a judgment or order purporting to affect the custody of these children would the argued interference take place.

In many cases the fact that the jurisdiction of this court had attached to the infants, might not be known to the statutory court. Doubtless any such tribunal, contemplating the advisability of any order affecting the custody of children known to have become wards of this court would bring the matter to the attention of the chancellor before so doing.

It is with the utmost reluctance, and only in cases of pressing necessity, that any restraint is directed against the carrying out of legislative provisions by the authorities duly constituted therefor. In the present case, assuming that the entry of the suggested order or judgment by the juvenile court would be improper or invalid for any of the reasons mentioned, no such order or judgment has in fact been entered or made. I do not feel justified in assuming, notwithstanding the reported observations of that court, that any improper or invalid order or judgment will be made. If an order affecting the custody of these children he in fact made, the matter can then he determined, either on habeas corpus, or perhaps upon a renewal of the present application directed 'against the enforcement of such order. If the children be wards of this court, I do not think that an order as to their custody made by such statutory tribunal without the participation or consent of the chancellor, would he “res adjudícala.” The situation would be obviously somewhat different in that behalf from that in Roarke v. Roarke, 77 N. J. Eq. 181.

The application will therefore bé denied, but without prejudice to a renewal as above indicated, if future developments render auch course necessary or advisable.


text:
    Mary Ann Thomas v. John G. Scheible.
    [Decided June 25th, 1920.]
    1. A devise of -specific real estate to complainlamt for ¡her own use during her life, and with power lof appoi-nifcmtenit “to hospital or o|ter equally desirable purposes,” is void as to the power of appointment— mot being a gift for neUigious, -cfanirtabie or educational purposes.
    2. A power of sale eoltalterlal ¡to, or in aid of, suck void gift is ¡likewise void.
    3. In determining testamentary intention as expressed in a will and codicil, the dispositions made by the will are not to be deemed altered or revoked further thiam dis -absolutely necessary ito give -effect to ithie eod-idl.
    4. Held, tb-ait tlesflatrix -expressed no intention., by the codicil in this case, to enlarge domplla-iniamt’s life estarte.
    5. Decree for specrfie parfionmiamee -by vendee denied- — complainant having neither ia fee-simple -estarte nor power -of sale.

      On final hearing.

      Mr. Joseph BecJe Tyler, for the complainant.

      Mr. Aaron V. Dawes', for the defendant.
   Buchanan, V. C.

Complainant’s bill is for the specific performance by defendant, as vendee, of a contract for the sale of certain lands at Asbnry Park, New Jersey. Defendant moved to dismiss complainant’s bill, as amended, for want of equity. At the argument it was agreed that the case should be considered as on final hearing, defendant admitting the truth of the allegations of fact iu the bill, and introducing no other evidence.

The sole question in the case is as to whether complainant is able to convey a marketable title. The premises in question were owned in fee by one Agnes W. Leavitt, who died seized thereof in 1894, leaving a will and three codicils thereto, duly executed and valid under the laws of this state for the disposal of real estate under the provisions thereof; duly probated at the domicile of testatrix; and duly recorded, by exempli lied copy, in Monmouth county, pursuant to the statute.

The will, dated September 8th, 1890, gives the entire estate of testatrix to her sister (since deceased) for life, and subject thereto, provides for numerous bequests and devises to divers beneficiaries, with a residuary clause to a church, a Bible society and two missionary societies. One of these devises disposes of the premises in question, in the following language (hereinafter called “Clause A”) :

“And further I give, devise 'and heqwelath to the aforesaid M)ary Ann Thomas, the house amd tot situate ton, the comer of Kingsley Sitoeet and Fifth Avenue, New Jersey, which I have recently purchased from William Mjeyens to be used by her for heir town benefit during iher life and the furtherance of those benevolienit designs she fcnows I wish carried cut as a memorial ¡of my deceased husband Hiant A. Kaavitt 'and which by ¡her laist will I direct thaltl isbe shall appropriate to hospital or either equally desirable purposes. For which If necessary she has my consent to dispose of isaid property.”

At the end of the will appears the following clause (hereinafter called “Clause B”), which also relates to the premises in question:

“And I further direct my said executors or trustees that the (bouse and lot bequeathed by me to Mary Ann Thomas for heir use during her material life shall be delivered to her free of all encumbrances to be paid for out of my estate if not already fully paid for during my life. At her dleaith to be appropriated either in money value or as it stands ®s designated by me in a former clause of this my last will and testament. The furniture thereof to be hens in total amd absolutely.”

The first and third codicils are dated, respectively, October 10th, 1890, and January 11th, 1893. Neither contains any provision affecting the devise to complainant. The second codicil is undated, and there is no evidence as to its date. The second item thereof (hereinafter called “Clause C”) reads as follows:

“The sum lof Three Thousaud Dollars, ($3000.00) -which I bequeathed to J-assie Townsend, I hereby revoke, feeding i3hat she does not need it amd direct thiait this sum be used toward payment of mortgage non property No. Twio hundred (No. 200) Fifth Avenue, Asbury Park, New Jersey, said property being left u-mconditiomally to Mjary A. Thomas.”

A further provision, which was not adverted to hy either counsel, but which seems to me to he of some importance in the determination of the issue involved, is found in the last codicil where, after revoking a gift in the will of a parcel of Philadelphia real estate in fee to complainant, Mary A. Thomas, and devising it instead to the nephew Edward G-. Whitesides, she adds the following marginal note (hereinafter called “Clause D”) :

“At ibis decease said lot to be returned (or if sold the money obtained to the estate for the benefit of the memorial Hospital mentioned in a former clause of the above Will.”

Considering, first, the original will itself, it seems clear that complainant under its terms took neither title in fee nor power to convey- — merely a life estate in the premises. The gift by clause A, following the life estate to complainant, is a gift of the remainder in trust for what the testatrix undoubtedly conceived of as charitable purposes, or purposes similar thereto— the trust to be effectuated by the will of complainant. Unfortunately, the language used by testatrix — “to hospital or other equally desirable purposes” (to which no aid or cure is given by the other clause — “the furtherance of those benevolent designs she knows I wish carried out”), does not constitute a gift to charitable use. Assuming that a gift “to hospital purposes” is a gift to charitable use, it is perfectly apparent that “other equally desirable purposes” permits the disposition of the property by complainant for purposes which are not charitable.

In the first place, what criterion is to be used in determining what “other purposes” are equally as desirable as hospital purposes ? There is no established standard, either judicial or otherwise. Obviously, the purposes which might be deemed so “equally desirable” would vary with the individual whose judgment was exercised thereon; and, equally obviously, many persons might, and doubtless would, consider divers purposes which could .not come within the category of charitable purposes, equally as “desirable” as hospitals.

The only part of clause B which affects this devise is that which provides that the premises in question are'given free of encumbrance. No other portion of the will is of any relevance or materiality.

The gift in remainder, therefore, would necessarily have been held invalid had the will stood as it was originally executed. Livesey v. Jones, 55 N. J. Eq. 204; Thomson’s Executors v. Norris, 20 N. J. Eq. 489 (at p. 523); DeCamp v. Dobbins, 31 N. J. Eq. 671 (at p. 695); Hyde’s Executors v. Hyde, 64 N. J. Eq. 6; Smith v. Pond, 107 Atl. Rep. 800.

It follows, necessarily, that the power of sale would fall with the invalid gift — for the power is plainly given only for the purpose of carrying out the gift 'in question.

Turning now to clause D, in the last codicil, reference is there made to “the memorial hospital mentioned iñ a former clause in the above will.” There is, however, no memorial hospital mentioned anywhere in the will or codicils — nothing but the language used in clause A, which, as. has been seen, does not establish a memorial ’ hospital. Nor does this provision of “Clause D” purport itself to establish such a hospital — it is for the benefit of a hospital otherwise established or to be. established. Hence, there is nothing in this clause to validate the void gift.

Remains clause C in the second codicil. The language of this clause in nowise validates the gift for “hospital or other equally desirable purposes.” The question which here arises is, Does the testatrix by this clause intend to eliminate the trust she has attempted to impress upon the remainder in the Asbury Park property and eonvei't the life estate of complainant into a fee ?

The will and codicils are, of course, to be construed together, and effect given if possible to every part. The words used are not necessarily to be construed technically, but the intent of testatrix is to be ascertained and given effect to, in so far as legal or moral principles are not thereby contravened. Rogers v. Rogers, 49 N. J. Eq. 98; Marshall v. Hadley, 50 N. J. Eq. 547; Brearley v. Brearley, 9 N. J. Eq. 21.

What is the force and effect, then, which is to be attributed to the phrase “said property being left unconditionally to Mary A. Thomas?”

There are only two alternatives — either the intent and meaning thereof is to revoke the attempted remainder in trust and give complainant the fee, or it is not. Cogent arguments may be made on each theory.

In support of the first, it may be pointed out that testatrix plainly had no accurate knowledge of the legal meaning-of all of the words and phrases used in the will. It bears all the indicia of having been drafted by testatrix herself with the aid and assistance of a prior will or wills which had been drafted by competent counsel. The argument would then follow that the word “unconditionally” was not used at random or without meaning, but that it was not used in its strict technical meaning; those provisions of clause A which follow the gift of the life estate if not in legal effect a gift conditional, are in form practically such, and would be, and were deemed such by testatrix. Hence tire only logical effect to give to- the perplexing phrase is as though it were paraphrased “said property being now hereby devised by me to Mary A. Thomas, freed of the conditions imposed by me in the will, namely, the conditions that she use it for the furtherance of those benevolent designs, &c., • and appropriate it by her will to hospital, &c., purposes.”

And the, argument would proceed (by way of rebuttal of the counter-argument) : There is no- other reasonable meaning which can be ascribed to it. Clearly- she did not mean that she freed the life estate from conditions — for while the provision that the life estate be used for complainant’s own benefit is perhaps technically a condition, practically of course, it constitutes no condition, but rather the absence of condition — for it cannot be supposed that by those words testatrix meant to compel complainant to use the income for her own selfish material benefit and to prevent her from giving part or all away in charity, if she felt so disposed, and certainly no argument is needed to support the positive conclusion that testatrix, by this phrase in clause C had no idea that she was removing the “condition” that the life estate was to be used for complainant’s benefit.

Furthermore, it cannot be supposed that testatrix by “unconditionally” meant “without encumbrance,” because it would be an inapt word for that purpose, and testatrix had not only already provided in the original will that the property should pass without encumbrance, but also, in so doing, had there used the apt and proper words for that purpose.

No possible meaning, other than those discussed can be ascribed to the phrase.

It seems to me, however, that testatrix did not intend to give a fee-simple and unconditional to complainant — that she did not intend to abrogate the disposition in remainder which she had previously provided, and which though invalid, was assuredly not known by her to be invalid; and therefore that she did not intend to and did not give complainant more than the originally contemplated life estate.

In Rogers v. Rogers, 49 N. J. Eq. 98, Vice-Chancellor Van Fleet sets forth the principle that in construing a will every effort is to be made to give effect to every provision therein, before coming to the last resort of declaring two provisions to be utterly repugnant to each other, and therefore holding the former of such two nugatory and the latter thereof as expressive of testator’s intention.

I take it that this principle is substantially as true where the testamentary disposition under consideration consists of a will and one or more codicils, as where there is a will without codicils. Of course, the very fact of the codicil usually denotes a change in the will, either by addition, subtraction or alteration of provisions — and one therefore rather looks to find some clause or clauses in a codicil necessarily repugnant to. some clause or clauses in the will. But, on the other hand, not infrequently codicils are merely explanatory — as indeed is the first codicil to the will now under consideration.

Says Mr. Jarman (Wills (6th, ed., 1910) 177) :

“Numerous are the questwms wMdh biave larisem da regard to the extent to which a codicil affects the disposition of a will or antecedent codded!. * * * la dealing with such cases it is ©in established rule mot to disturb the dispositions of the will further than is absolutely necessary for the purpose iof .giving effect to the codicil.”

The opinion of Vice-Chancellor Reed in Lyon v. Clawson, 56 N. J. Eq. 642 (affirmed on the opinion below, 58 N. J. Eq. 584), shows that he there applied this same rule, although he does not state the rule.

In order, therefore, to justify a court in determining that any provision of a will is altered or revoked by a codicil, it must be quite clear that such was testator’s intention.

In the instant case ifis to be noted that there is nothing in the phrase “said property being left unconditionally to Mary A. Thomas” (or anywhere else in the codicil) — except the argued implication in that behalf of the word “unconditionally” —which necessarily, or even probably, indicates an intention to alter the extent of the gift to complainant. “Being left” may mean “having been left” just as well as it may mean “being hereby left.”

Again the language at the beginning of the codicil, “all the provisions of which” (i. a., the original will) “I wish carried out except such as I now specify,” is not without significance. She does not specify, other than conjecturally, any desire to have the trust in remainder to hospital, &c., purposes, not carried out.

In this codicil, as well as in the third codicil, she revokes a gift, correctly using the word “revoke.” The probability is, it seems to me, that had she desired to revoke the provision in remainder she would have done so in like manner.

Again, in order to ascertain the intention of testator, the whole testamentary disposition, will and codicils, so far as relates to the subject-matter in question, must be read together. Graydon v. Graydon, 25 N. J. Eq. 561. In clause A of the will she stated her intention that at the death of Mary A. Thomas, the property should be appropriated for hospital or memorial purposes; and in clause B she reiterates this. And in clause D, in the last codicil, she again shows that she still has in mind that she has made this hospital or memorial provision and that it is still in force and effect, for she makes another provision in aid or benefit of it. The force of such repeated manifestations erf interest and intention is pointed out in Lyon v. Clawson, supra.

In view of these considerations therefore it seems to me not merely that there is no clear indication of any intent to revoke the attempted gift in remainder, or to enlarge the gift to complainant, but that the indication is rather that no such intent existed.

It is true that “unconditionally” is not an apt word to express freedom from encumbrance, and that testatrix has elsewhere in the will shown her knowledge of apt wording therefor and actually provided therefor. But on the other hand the sentence at the end of clause B and two instances at the beginning óf the first codicil, show that in those cases when desiring to express an intention to give the beneficiary complete ownership she used the word “absolutely.” The probability is that she would have used the same word here had she desired to express the same intention — especially since it seems clear from the wording of the last sentence in clause B that she was there using her own language; whereas the misspelling of “incumberanee”, may indicate that she was in that case using an acquired phrase with which she was not perfectly familiar, and to the use of which she had not become more accustomed at the later date of the second codicil. “Unconditionally” is by no means an unheard of means of expressing freedom from encumbrance. Lyon v. Clawson, supra, also points out the inferences to be drawn from a consideration of the actuating idea of the testatrix in the making of the change by codicil. Here the mind of testatrix was intent upon the fact that the Asbury.Park property was mortgaged, that she desired to have it pass free from that or other encumbrance, as she had already stated in her wall— and her revocation of the gift of Jessie Townsend, who “does not need it,” was for the purpose of assuring the payment of the mortgage. My belief is therefore that the intention of testatrix would be correctly expressed by paraphrasing the language thus: “I revoke the bequest of $3,000 to Jessie Townsend, because I feel that she does not need it, and I direct that this sum be used toward the payment of the mortgage on the Asbury Park property, which, as I have already provided in my will, is to be delivered to her free of encumbrance.”

It is, of course, possible to construe the word '“unconditionally” as properly (though unnecessarily) used in its accepted legal meaning — an added statement out of abundant caution that the life estate was left to complainant without conditions. Such was the case in Kratz v. Kratz, 59 N. E. Rep. (Ill.) 519, where testator left to his wife, for life or widowhood, all “my lands, tenements and hereditaments * * * ; and all my interest in real estate, mortgages, notes absolutely and unconditionally.”

It is not requisite, however, to determine in which of two or more possible meanings the word was used by testatrix. It is sufficient for the determination of the case at bar that it was not intended to denote a gift of the fee to complainant, and this of course leads to a decree dismissing the bill.


author: Fielder, V. C.

text:
    Sovereign Camp of the Woodmen of the World v. Bertha Muth et al.
    [Decided March 5th, 1920.]
    1. When a fraternal cmgtanization; pays the proceeds of an insurance policy into court on a bill of interpleader, it waives its right to resist the claim iof the named beneficiary ¡on the ground that she was not one of those whom the member was authorized by the constitution and by-laws of the organization to have designated as .his beneficiary.
    2. Such objection cou-ld be raised ¡only by the organization, and Would not entitle the members’ heirs to the proceeds of the insurance policy upon payment thereof into court by the organization.
    3. A beneficiary has an insurable interest in the life of an insured if the continuance of the life ¡of the insured would b.e to the beneficiary's advantage or benefit, or if -the insured be under some obligation to render the bemefidary care and assistance in time of need.
    4. In this ¡action between a named beneficiary who was mot a member of one of the classes from which a beneficiary might be chosen, according to the constitution and by-laws of an organization, on the one hand, and the benefidJaa-y’is itisbers ¡on the other — Held, that the proceeds- should be awarded to- -the named -bemeficiairy, in view ¡of the ¡equities of the case.
    On bill of interpleader. On pleadings and proofs. '

      Mr. Bicharé Siochton, for the defendant Bertha Muth.

      Mr. Samuel Schleimer, for the defendants Jessie L. Henderson and others.
   Fielder, V. C.

Some time prior to March, 1918, the exact date not appearing in the pleadings or proofs, the Sovereign Camp of the Woodmen of the World, a Nebraska corporation, issued its benefit certificate on the life of Robert McQueen, one of its members, under which certificate participation in the society’s beneficiary fund was made payable to the wife of said member, to the extent of $1,000. Hpon the death of Mrs. McQueen a new certificate in the same amount, dated April 13th, 1918, was issued by the society at the member’s request, payable to Bertha Muth, who was designated in the certificate as a dependent of the assured. Robert McQueen died January 12th, 1919, leaving Mrs. Muth 'surviving him and also, as his only blood relatives, three sisters of middle age.

Hpon McQueen’s death Mrs. Muth claimed payment on the certificate and instituted suit.thereon against the society and it being represented to the society that she was the step-daughter of McQueen’s deceased wife and in no way related to or dependent on him, she therefore did not come within the persons named in the society’s constitution and by-laws as one to whom its benefit certificate could he made payable, and the sisters of Robert McQueen also making claim to the money, the society, under a hill of interpleader, paid the fund into this court and the controversy is now between Mrs. Muth, on the one hand, and deceased’s three sisters, on the other.

There is nothing in the evidence to show that the statute of Nebraska, under which the society was incorporated, or any other statute of that state, limits or defines the persons to whom the benefit funds of the society can he paid.

The society’s constitution and by-laws offered in evidence as governing the issuance of the benefit certificate and the naming of the beneficiary, contain the following provisions hearing thereon:

“Section 3. (a) The objects of this society shall be to combine white Male persons * * * into a Secret, fraternal, beneficiary land beneivtolent society; * * * create <a fund from which, lorn ¡reasonable and satisfactory proof of death of ia beneficiary member who- ibas complied with ttae requirements of the society, 'there shall be plaid a sum not exceeding $3,000 to the person or persons named'in inis ceinbifioate as beneficiary or beneficiaries, which beneficiary or beneficiaries isball be bis wife, children, adop|M children, parents, brothers and sisters or other blood relations, or to persons dependent upon, ¡the member.
“(6) Tibie beneficiary or beneficiaries shall be designated in every benleficiary certificate issued * * *.
“(e) In rtliie event of this death. iof all this beneficiaries designated before tQile dentil of thle member, if no new designation has been made, the benefits shall be paid to the surviving widow and surviving children of the mean]», share .and share alike, provided such, widow shall not be an titled to 'any benefits if sfli'e áhall have beta divorced; provided, further, tbait if there be m® surviving widow, the .surviving ehiMron, if any, áhiall be entitled to lall of such benefits, amid if there be -no surviving children, then the surviving widow, if any, shall be entitled to the benefits; but if there be n® .surviving wife ior children', isuch benefits shall be paid to .the next living retatilon .of the member in the order named in this section..
(d) If there be mo pension ®uirvdvlin.g the member, who is a legal beneficiary as defined in this section, * * * theta, said benefits shlall revert to the btaefioilary fund of this socdiqty.”

If Mrs. Muth. is not one of those designated in section 3 (a) whom the member might name as his beneficiary, then the society might successfully have resisted her claim under the certificate and the fund would, under paragraph (d) of that section, revert to the beneficiary fund of the society, but the society , did not choose to avail itself of any defence it might have against her claim and by paying the money into court waived its rights. Tepper v. Royal Arcanum, 61 N. J. Eq. 638, 644; Catholic Benevolent Legion v. Murphy, 65 N. J. Eq. 60, 90; Wolfstern v. Pennsylvania Railroad Co., 76 N. J. Eq. 78, 87; Royal Arcanum v. Alexander, 86 N. J. Eq. 443, 445. Under the authority of these cases, the fraud or misrepresentation of McQueen in naming Mrs. Muth as a dependent, if any there was, cannot be taken advantage of by his sisters, but the fund being now in court, equity will treat it as McQueen’s property and dispose of it as between the rival claimants upon equitable principles.

To conclude that under the society’s constitution and bylaws, Mrs. Muth had an insurable interest in the life of Robert McQueen as a dependent, I would have to find that the continuance of the life of McQueen would have resulted in advantage or benefit to- Mrs. Muth, or that he was under some obligation to render her care and assistance in time of need (Thomas v. National Benefit Association, 84 N. J. Law 281), hut the evidence convinces me that the real situation was quite the reverse and that he lived at her home when he was out of work, without paying board; that she cared for him while he was sick and loaned him money from time to time, and that he was in fact dependent on her. While I cannot award her the fund as a proper beneficiary under the constitution and by-laws of the society, I think the equities are all with her.

The only claim on the fund advanced by the sisters is that they are deceased’s nearest relatives; that they are within the class from which the society permits a member to select his beneficiary and that the deceased having failed to name his beneficiary in conformity with the by-laws, the fund by operation of those by-laws must be paid to them. McQueen did not enter into the contract with the society for their benefit, but expressly for the benefit of another, and I find nothing in the by-laws, which, under the situation here presented, gives them the right to the fund. Paragraph (c) of section 3 does not fit the case and under paragraph (d) of that section, as before stated, the fund might revert to the society had it chosen to contest Mrs. Muth’s claim. Had McQueen desired his sisters to have the money, he would have named them as his beneficiaries after his wife’s death, of under paragraph (c) of section 3, he need have made no change in beneficiary and the fund would have gone to them, but when he made the change he deliberately said that he wanted Mrs. Muth to have this, the only property or estate he had to leave, and he gave the benefit certificate to her. Perhaps he wanted her to have the fund because after his wife’s death, it was to her he turned in sickness and adversity and because he felt he was dependent upon her for a home and for care and comfort, but whatever may have been his reason, it was one satisfactory to him. Since this court must treat the fund as McQueen’s property and his sisters’ have shown no special interest therein and no question of statutory prohibition, public policy or morals is involved, I feel' I must follow McQueen’s express wish and direct the money paid to Bertha Muth.

Neither costs nor counsel fee will be allowed.


text:
    Wilfrid S. Dowling, petitioner, v. Theodora Dowling, defendant.
    [Decided March 26th, 1920.]
    1. If a wife comtrac-ted veniereal disaaise from .her husband, sbe was justified in leaving him.
    2. A bu,stand whlo conisentied to this wiifefe sepanatioini wiitihio-ut mialdmg any effort to ter miniate it, through ishe left Mm withrout justifiable cause, he being willing she should go, cannot subsequently complain of it.
    3. Evidence held insufficient to, .sustain the petitioning husband’s changes rof -adultery ror desertion, against the defendant.
    4. A decree dismissing a wife’s petition- for constructive desertion on the ground that her husband communicated to her a venereal disease and so forced her to leave him, — Held, res adjudicada, as a bar to considering the sarnie facts -as a ground for granting ,a diviorce to- the wife for her husband’s adultery, set up by her as a counter-claim in' his subsequent action for diviorce.
    On petition for divorce.

      Mr. Charles Franlcel, for the petitioner.

      Messrs. Heine, Bosiwiclc & Bradner, for the defendant.
   Fielder, V. C.

The petitioner alleges that in July, 1916, the defendant became affected with a venereal disease as a result of adulterous relations with some person unknown, and he therefore charges the defendant with having committed adultery during June and July, 1916, with a person unknown to the petitioner. He also charges the defendant with having deserted him in September, 1916, and he prays for a divorce on both or either of the two grounds. The defendant denies both charges.

Proof of the charge of adultery depends entirely on the fact that early in July, 1916, the defendant was suffering from a venereal disease of so virulent a nature that pelvic peritonitis developed, and she was confined to bed two months. The petitioner claims that he did not have the disease and did not communicate it to his wife, and he contends that because she had it, she must have contracted it from another man. No evidence was offered to show that the defendant had received attentions from any man, or that she Avas ever in the company of any man other than her husband, at any place of under any circumstances; therefore, the presence of this disease in the defendant makes it the duty of the petitioner to satisfy the court that she did not contract it from him. He testified that he occupied a bedroom separate from his Avife from the middle of March, 1916, and that he had no connection with her after that date, and that at no time was he suffering from gonorrhoea, but she says that in June, 1916, he told her he had a venereal disease, and their sexual relations had continued up to that time, and testimony was presented, which I believe, to show that the husband and wife occupied the same sleeping room up to and including May, 1916. The petitioner admits that he visited a physician several times in April and May, 1916, and was treated for a discharge from the penis. This physician testified that the petitioner was then suffering from urethritis, a disease not easily distinguished from gonorrhoea, and Avhieh may be contracted as a result of coition with a female suffering from gonorrhoea, but that no gonorrhoea germs were found by him, and that his patient was discharged as cured of his urethritis in May. The petitioner Avent to the same physician in October, 1916, and a blood test Avas made which disclosed no syphilitic condition. It was early in July, 1916, that the petitioner says he learned of his wife’s condition. It shnuld be noted that he did not submit himself to a medical examination between May and October. If he did not have gonorrhoea in April or May, when he was under medical treatment, he might have contracted it thereafter; but if he did not, the natural thing, when he discovered his Avife’s condition, was to have his physician examine him immediately to establish the fact and be prepared with the proof that at that time he was free from it, and that he did not do so is a suspicious circumstance against him.

Testimony was given by an apparently disinterested witness that the petitioner told him, in August, 1916, that he was suffering from a venereal disease, and that he showed the witness medicine he was taking for it. This the petitioner denies.

The petitioner continued to live in the same house with defendant and occasionally visited her sick room. It was she who left him as soon as she was able to move; and even before leaving him she had filed a petition for divorce against him. On September 28th, 1916, when she left his home, he told her not to go; that the house was hers and she could stay in it. In May, 1917, he had been convicted of larceixy, and from jail he wrote her a letter appealing to her to come and help him. It does not seem to me credible that if he knew she had been guilty of adultery, he would have continued to occupy the same house with her and would have been willing to accept assistance from her while he was in jail.

As to his charge that she deserted him September 28th, 1916, which was the day she left his home. Of course, if she contracted a venereal disease from him, she was justified in leaving him; but for the reason hereafter stated, I cannot consider this a justification for the separation. Without discussing the testimony, I shall say that if she left him without justifiable cause, be was willing that she should go, and he consented to the separation without making any effort to terminate it.

I am satisfied that the petitioner has not sustained his charges of adultery or desertion against the defendant, and that his petition must be dismissed.

By way of counter-claim, the defendant charges the petitioner with having been affected with a venereal disease in June, 1916, as a result of adulterous relations with some person, unknown, which disease he communicated to her the following month, and she therefore charges him with having committed adultery during May and Jufy, 1916, with a person unknown to her. She also charges that because of the venereal disease so communicated to her, she feared for her personal safety and her health became impaired and she was no longer able to discharge her duties as a wife, through fear, anguish and discomfort, and that on September 28th, 1916, she left the petitioner’s home and has ever since lived apart from him, and that he has never sought her return to him. She, therefore, charges the petitioner is guilty of constructive desertion.

The petitioner answered the counter-claim by setting up that in September, 1916, the defendant filed her petition for divorce against him for the same matters, to the same effect and for like relief as she now sets up in her counter-claim; that after a hearing in such suit, her petition was dismissed and a decree entered thereon, and the petitioner herein pleads the former action and the decree therein, in bar to this counter-claim.

The files of this court in the divorce action instituted bv> this defendant against this petitioner were offered in evidence. They show that Mrs. Dowling filed her petition September 23 d, 1916, for divorce on the ground of adultery only, setting up> the identical cause of action which she now seta up in her counter-claim; that Dowling did not defend and that the case was heard ex parte before a special master. The testimony taken in support of Mrs. Dowling’s petition is annexed to the master's report, and, in substance, is the same as the testimony offered in this case in support of her counter-claim. The special master reported that she had not substantiated the truth of the allegations of her petition with respect to her cause for divorce, and recommended that her petition be dismissed, and on November 12th, 1917, a decree of this court was entered confirming the master’s report “and that the petitioner’s petition be and -the same is hereby dismissed.” I shall, therefore, hold that the decree in that suit will operate res judicata as a bar to considering the same facts as a ground for granting a divorce in this suit to Mrs. Dowling for her husband’s alleged adultery. Spence v. Spence, 74 N. J. Eq. 786, 788. Her charge of constructive desertion is based wholly on the allegation that because he communicated a venereal disease to her, she was forced to leave him, and, because 1 have concluded that I cannot consider the facts she presents as a ground for divorce for adultery, I must also refuse to consider them as a ground for divorce for constructive desertion.

The defendant’s counter-claim will also be dismissed, without prejudice, however, to any future action she may desire to institute against her husband for divorce on the ground of desertion.


text:
    Emma Shepherd v. J. Frank Davis and Ward Muchmore, trustees, et al.
    [Decided March 26th, 1920.]
    1. When the event upon which legacies are given is certain, although the time when they .are t» tallse effect is uncertain, ithe ¡legacies vest at the testator’s death, subject only to being defeated by the death of a legatee prior to the time when, such legatee doulid come into possession.
    2. Where a will provided that certain income should be paid to A, and upon his decease -that share of income “otherwise and theretofore payable to him” shall b,e equally divided dmto two parts, .and lone part thereof paid to B, the gift of O is not dependent upon the taking- of A, as all the legacies vest bogeflber at the testator’s didath.
    On bill for accounting, &c.

      Mr. Charles C. Pilgrim, for the complainant.

      Mr. Wilbur A. Heistey, for the defendants Annie Davis and others.

      Messrs. Church, Harrison ■& 'Roche, for the defendants Ward W. Muchmore and others.
   Fielder, V. C.

This case was argued on the pleadings and on a' stipulation between counsel fixing the dates of death of the several persons hereinafter mentioned.

Henry Smith, who died January 31st, 1902, left a will dated April 9th, 1898, admitted to probate in Essex county. The controversy presented by the pleadings calls for the construction of the fourth clause of the will, which is as follows:

“Fourth : — Ail of the rest, residue amid remainder of mry estate, real, pecnsomlal amid mixed, wheresoever the isame may he situate, I do give, devise and bequeath to my -executoris hereSniaffier nlamted, in itruisit, never the-less, it(o keep the .salme safely .and properly invested (preferably in first, and first «lass bond .and mortgage) for the following purpose:
“1. ¶0 pay to my Said wife, Annie, the isum of ronie hundred and thirty dofilars ($130) each and every miomith for land during thie term of her natural life, which mlomthly ,sum I direct shall be iso paid by itheim to her, if necessary, from the principal and ini preference to ¡all olther charge® and payments whatsoever. Amd I do füifjher order and direct that the met balance iamd remainder lof the income to be .dlerived from my said residuary estate shall, laifc periods of mot less than half yearly, be divided info two equal parts, lone of which ¡Salid parts ishiali be paid to my daughter Annie Davis for amd during .the term of her nlaturia! life, and the oliher .of which said parts shall, in Hhe manner, be paid to my daughter, Florence Muchmiore, for land during the term/ of her natural life. And I dlo further ordier rand direct ithat, upon the decease of eithiar fche said Amnie Davis lor Florence -Muehmiore, ’my executors toerieiinlafter mam'ed, shall from my residuary estate forfihwiith pay, in. 'cash, the sum of onla thousand dollars ($1,000) |t|o each child of my daughter so deceased, which said sum of’ sums of oinle thousand dollars ($1,000) wihen so plaid, shall be in full 'settlement land discharge lof such child or children’s claim upon my estate under this my will.
“And the ¡salid part lor share /of the net income otherwise and theretofore payable to my deceased daughter ¡Shall be plaid to my said son, Henry E. Smith', for and' during the Harm of hits natural -life. Upon the decease of ¡either miy said son lor surviving daughter and paymlent of this sum of one thousand dollars ($1,000) to elaoh her surviving ahil'd or children, so as aforesaid, I dlo order iamd direct that the share of income otherwi®'e and theretofore payable .to him iot to Iher, shall be equally divided into twio parts, one of which .said parltls I dlo- order land direct shall be paid to my sister, Emlmia Shepherd!, and ithe other lof said parts I do order and direct shial-l be paid to my brother, Edwin Smith, during the term of their natural' lives, amid up.au the decease lof either, the portion otherwise and /theretofore paylable to her or to .him shall .go to lam'd form p.art of my said residuary estate. Upon the death of any twio of my said children and of my said wife, said trust shall determine and I do give, devise and bequeath my then remlalinimg residuary estate to th'e survivor, Ms 'or her hears, 'executions and administrators forever, subject however to the payment semi-annually to my said sister and brother during their life or lives, ¡of -a ¡sum or isumis ’equial to the portion of income lastly payable to her or him before the dateirmlnlaitioin ¡of ¡Said trust.”

All Hie persons named in this clause survived the testator except his brother, Edwin Smith, who died early in the year 1898, and the subsequent deaths were as follows: Annie Smith, wife oí testator, died April 18th, 1905. Florence Muchmore, daughter of testator, died June 10th, 1918. Henry E.- Smith, son of testator, died February 28th, 1912.

The other two persons named in this clause; viz., Emma Shepherd, sister of the testator, and Annie Davis, his daughter, are alive, the former being the complainant herein. The defendants are Annie Davis and the husband and two daughters of Florence Muchmore, deceased.

The question presented is whether the death of Henry E. Smith, son of the -testator, before Florence Muchmore, affects the right of complainant to receive the income, which under the quoted clause of the will was provided for her. The defendants contend that complainant was to take only on condition that Henry E. Smith lived to take and they point to the direction in the will that upon the decease of Henry E. Smith “the share of income otherwise and theretofore payable to him or to her, shall be equally divided into two parts,” one of which parts should be paid to Emma Shepherd, as upholding their view. In other words, that the interest of Emma Shepherd was to come through Henry E. Smith and upon his death before Florence Muchmore, his share of the income lapsed and fell into the residuary estate.

My conclusion is that the complainant must prevail. The testator knew that death is not a-n event which may or may not happen. He knew that it was bound to occur in the case of all his beneficiaries and that they might not die in the order in which he named them. There were certain persons for whom he wished to provide and to some he desired to give more than to others and he wanted to provide for them in a certain order, namely, his wife first; his daughters next; then a sum for the children of a deceased daughter; next his son, Henry E. Smith, and finally, before disposing of his residuary estate absolutely, his sister, Emma Shepherd, and his brother, Edwin Smith. To carry out his intention, he gave his residuary estate to his executors in trust and directed them to make the payments therefrom. When he said, “upon the decease of either the said Annie Davis or Florence Muchmore,” he meant to speak of their death generally, whenever it might happen and when that event had occurred and the necessity for providing for Ms wife and the deceased child had terminated, the executors were direeted to pay a portion of the income to his son Henry, but it so happened that when Elorenee Muchmore died (the testator’s wife being then dead), Henry was not alive to take. The will then goes on to say that “upon the decease” (not “after the decease” or “at the decease” but again speaking generally of death) of either Henry E. Smith or Annie Davis

“I do lordor iaind -direot tíhiait (tibe áluairo iof óiiiCiOim.e .Ojtherwise and theretofore payable to Jbiim •ae tilo -heir, isbail be equally divided into' two pants * * *, ton:e of which shall be paid to my sisrtldr Bmnm Shepherd.”

I think these provisions for the beneficiaries fall within the rale laid down in Beatty v. Montgomery, 21 N. J. Eq. 324, the event upon which the legacies were given being certain, although the time when they were to take effect was uncertain and that the legacies vested in them on the testator’s death, subject only to being defeated by their death prior to the time when they could come into possession.

In other words;, testator intended a portion of income for Emma Shepherd and merely postponed the time of its receipt to let in the interest of Henry E. Smith, should he be alive. This gave her a vested interest, although its enjoyment was postponed until the preceding life estates were determined, and might be entirely defeated by her death in the lifetime of the preceding life tenants. Post v. Herbert, 27 N. J. Eq. 540, 544; Howell v. Green, 31 N. J. Law 570, 573. It is not material that the gift to her was of an interest in the fund and not of the fund itself. Howell v. Green, supra.

The case lies within that class of cases in which the fund is bequeathed in fractional interests, in succession, at periods and upon certain conditions annexed to the preceding estates which must happen, and if the preceding or contingent estate should never arise or take effect, the remainder over will nevertheless» take place, because all the interests vest at the same time. Smith v. Hance, 11 N. J. Law 244; Howell v. Green, supra; Chambers v. Sharp, 61 N. J. Eq. 253, 258. I consider this situation similar to the case where a life interest in a fund is prevented from being operative, as for example, the refusal of a widow to accept a devise in lieu of dower, in which event the devise or bequest in remainder is said to be accelerated and the remainderman will be entitled to come into possession at once. Macknet v. Macknet, 24 N. J. Eq. 277; Biedeman v. Sparks, 61 N. J. Eq. 226.

The defendants stress the provision that Emma Shepherd shall receive “the share of income otherwise and theretofore payable” to Henry E. Smith and they strongly urge that these words indicate an intention on the part of the testator that she should take only 'in the event that she should survive Henry E. Smith because, they say, that in the event of his death prior to hers, there could be no income “theretofore payable” to him. But I consider these words as intending to measure or define the amount of income the testator intended for her and not as words of limitation. Huber v. Mohn, 37 N. J. Eq. 432; Clark v. Morehous, 74 N. J. Eq. 658, 666.

Hpon the death of one of the testator’s daughters, Henry E. Smith was to take the share of income “theretofore payable” to her and upon the death of either Henry E. Smith or the surviving daughter, the complainant was to take a portion of the income “theretofore payable” to the one dying. One of these two would surely have been in receipt of income and it might have been that upon the death of that one, the complainant would take, and therefore the expression “income theretofore payable” was not inappropriate with what the testator had in mind, which after all was that Emma Shepherd should receive a portion of the income made payable by the will to the one predeceasing her and after whom she should take. Significance must be given to the use of the word “otherwise,” which means “but for,” or “under other circumstances” and taken in such sense the clause would read “upon the death of my son Henry E. Smith * * * I order and direct that the. share of income, which but for his death would be theretofore payable to him, shall be equally divided into two parts, one of which parts I do order and direct shall be paid to my sister, Emma Shepherd.”


text:
    Andrew Mahaney v. Cornelius Mahaney, Jr., et al.
    [Decided March 29th, 1920.]
    1. Where ¡a testator- devised real property .to his son, subject to a charge of $100 each to his two 'brothers, the son by renouncing cou'ld not entitle himself to a. third share in1 Itlhe real 'estate dm common with his brothers free of the charge, on the theory that the result of his renounc-, ing the devise was that the testator died intestate. Such legacies are equitable lienis on the real estate in whomsoever the title may be, and the renunciation relieves ¡the devisee of persona! liability only; and the lien :of the brothers may be foredoised by ¡Sale of the land.
    2. Such renunciation having been mlade under ia misunderstanding as to the devisee’s rights, land not having changed the situation, but only injured himself, forfeiture of the surplus which may ¡arise on foreclosure of the equitable liens, will mot be enforced.
    3. The devisee of land subject to charges loin legacies was entitled to possession otn prdblafle ¡of the will, 'and the lauds were ¡Hable foa- the testator’s debts for one year after his dieath, the legacies being payable within a year from the .probate ¡of the will, and. interest running ¡on them from that date.
    4. If one of the legatees, whose legacy was madia ia change on the land, dies before the legacy was .paid, the legacy Itlo him wias vested in him' at his death, ‘and is to be considered ¡as personalty for distribution1.
    On bill, &c.

      Mr. Martin B. O’Keefe, for tbe complainant.

      Mr. Howard F. Barrett, for the defendant Cornelius Mahaney, Jr.
   Fielder, V. C.

Cornelius Mahaney died leaving a will admitted to probate in Morris county, June 4th, 1917. He left him surviving his three sons, Andrew, Cornelius, Jr., and William. By his will he gave certain articles of furniture to one son and directed that the balance of his household goods should be divided equally among the three sons, expressing the wish that these things should not he sold or given away by his sons, hut kept in remembrance of Mm and their mother. He also' made the following devise:

“I give and devise to my son Cornelius Malianey tlie house and lot where I mow reside, to him ¡and Ms ihieiais, providing, (however, that he pay to my sons Andrew amd Wiiliiam the sum of «rae ithouisairud dollars oaeh.”

Cornelius, Jr., accepted his share of the household goods, hut he has not taken possession of the house and lot. On December 14th, 1918, he filed with the Morris county surrogate a writing signed by him, wherein he renounced and gave up said devise.

William, one of the sons, died October 30th, 1917, intestate, survived by a widow and four minor children.

Complainant filed his hill against Cornelius, Jr., and the widow and next of kin of William, praying that Cornelius be decreed to pay his legacy with interest and costs, or that the same be decreed a lien upon the land in question, and that the land be sold for the pa3anent thereof. He praj^s for alternative relief in the nature of a hill for partition.

Cornelius, Jr., answered claiming that he was not hound to accept the devise and pay the legacies and he joins in the prayer for a partition of the lands. It is his theory that the result of his refusal to accept the devise, is that the testator died intestate as to the house and lot and that the three sons became seized thereof as heirs-at-law, as tenants in common.

1 think there can he no doubt but that under the will, Cornelius, Jr., would take an estate in fee in the house and lot, subject to the charge of the legacies to his brothers. It is not necessary to consider whether inr his written renunciation he could divest himself of title; neither is it necessary to consider the question whether he is not now barred from setting-up a claim adverse to the will because he accepted a bequest of personalty under it, for the reason that I consider the legacies to his brothers as equitable liens on the real estate in whomsoever the title may he, which Cornelius, Jr., cannot defeat by any act of his. I must give effect to the testator’s plain intention that Andrew and William should first be paid $1,000 each out of the house and lot before Cornelius could take anything. The most that can be said of the latter’s refusal to accept the devise is that it will relieve him of personal liabiblity for the payment of the legacies.

In the event that Cornelius should continue to decline to accept the devise and pay the legacies, the lien of the legatees should be foreclosed by sale of the land and this presents the question whether in view of his refusal to accept the devise, he is not estopped from claiming the surplus which may arise on the sale, and whether it should not be determined that the testator died intestate as to such surplus and that the same should go to the testator’s heirs-at-law as real estate, or to his next of kin as personal property. I think that Cornelius’ dissent to accept the devise was made under a misunderstanding as to his rights and since his refusal has not changed the situation and no one but himself has been injured by it, it would be inequitable to enforce a forfeiture of what the testator intended he should receive under the will.

Cornelius, Jr., was entitled to possession upon the probate of the will and the lands were liable for the testator’s debts for one year after his death. I shall hold th^t tire legacies were payable within one year after the probate of the will and that interest will run on them from June 4th, 1918. I shall advise a decree that Cornelius, Jr., pay the costs of this suit and be given an opportunity to pay the legacies with interest and in case of his failure to do so, that the house and lot be sold under the direction of a special master, to raise and pay the aforesaid amounts, and if suffidenlti money should not be raised by the sale to pay both legacies, the proceeds to be applied to them proportionately. If there should be any surplus it will be paid to Cornelius, Jr.

To dispose of all questions which now occur to me, I will add that the legacy to William was vested in him at his death and is to be considered as personal property for distribution among his widow and next of kin.


author: Walker, Ordinary.

text:
    Edwin Bobert Walker, Ordinary.
    Eugene Stevenson, Edmund B. Leaming, Vivian M. Lewis, John H. Backes, John Grieein, John E. Poster, Malcolm G. Buchanan and James E. Fielder, Vice-Ordinaries.
    In the matter of the estate of Joseph V. Morrisse, deceased.
    [Decided April 14th, 1920.]
    By -virtue of Gomp. Stat. p. 8877 § 178; ameinded first Supp. p. 1157, the orphans court has power to construe a will for the purpose of decreeing idistrihiuiticm according to its directions and provisions (-the comstitutiouiaiity of which statute, however, has frequently been mooted, though never decided), but has mo power over a question concerning the discretion exercised by trustees in the dishunsem'emt of income to legatees, that being peculiarly a question of equitable cognizance and triable in Chancery alone.

      On appeal from the Passaic county orphans court. On appeal from an order of distribution.

      Messrs. Edwards & SmitE for the appellant.

      Mr. Francis Scoli, for the respondent.
   Walker, Ordinary.

The last will and testament of Joseph V. Morrisse was admitted to probate by the surrogate of Passaic county on November 24tli, 1903. Inter alia, it contained the following:

“■Ninth: I give, devise 'amid 'bequeath all the mast, residue 'and remainder of my estate, relal, personal or mixed wheresoever tine same may be and of whatsoever the saim'e miay consist .to Charles B. Bunm amd Adrian D. Smllivam, my executors 'hereinafter named, in trust, to receive and collect the rents, issues, .profits and income ¡of the same amd to keep the funds invested in first bonds and ,mortgagee or olther approved securities, amd, from time to time, to pay over such portion of the income as they shall deem iproper, to .my nephew Reginald Bevan and to my half-sister Katherine Morrisse, until the said Reginald Bevan arrives at the age of .twenty-one yeans; then it is my will 'that the Whole residue of my estate shall be divided equally between my nephew, Reginald Bevan and any half-sister, Katherine Morrisse, share a-nd share alike; ¡and in. case of ¡the death of either 'of them ¡before the Said Reginald Bevan arrives at the age of twenty-one years them it is my will that the share of the one dying ¡Shall go to the survivor absolutely.”

Reginald Bevan, having arrived at the age of twenty-one years, Katherine Morrisse being older, and both being still alive, the executors, as trustees, filed their final account, which was allowed by the orphans court, showing a balance of cash amounting to $12,426.30, besides unconverted real property as the residue of the estate. They later filed a petition praying the court to adjust, order and make distribution of the residue of the testator’s estate. The matter having come on, for hearing in tlie presence of counsel for all parties, it was ordered that the sum of money in the residuum he distributed and paid by the executors and trustees to Katherine Morrisse and Reginald Bevan. This order did not saj'" that such payment should be share and share alike, but the will says that the residue of the estate shall be divided equally between Reginald and Katherine, and counsel on the argument conceded that that was the interpretation to be put upon the order, which, by the way, recited that the court was satisfied that each was entitled to an equal one-half share of the residue. In their petition for distribution, the executors and trustees show that they had disbursed to Reginald Bevan $16,-092.68, and to Katherine Morrisse $6,644.48; that the disproportion in the disbursements was the result of the difference in time between the respective, residuary legatees arriving at full age, and that, as the result thereof, the petitioners were uncertain as to the exact proportion in which those legatees should receive •the residuum of the estate.

Katherine Morrisse appeals and contends, that in the distribution now to be made, Reginald Bevan should be charged with the excess of income paid to him over and above the amount of income paid to her.

The trust was to invest the residue and from time to time pay over such portion of the income as the executors should deem proper, to the testator’s nephew Reginald Bevani, and his half-sister Katherine Morrisse, until Bevan should arrive at the age of twenty-one years, when the whole of the residue should be divided equally between them. This, is perfectly plain and calls for no construction, a thing which the orphans court would have power to do for the purpose of decreeing distribution according to the directions and provisions of the will. Comp. Stat. p. 8871 § 173j amended first Supp. p. 1157. The constitutionality of this statute, however, has frequently been mooted, but never decided. See In re McGaw; 88 N. J. Eq. 288, and cases cited at p. £90.

The question submitted to the court below, and here, was not one calling for the construction of the will of testator*, but was oxxe concerning the discretion exercised by the trustees in the disbursement of income to the two legatees. It was contended on behalf of Katherine that the case fell within the rule that where a trustee abuses the power committed to him the court may interfere and compel the making of a proper allowance, as in Read v. Patterson, 47 N. J. Eq. 595. On behalf of Reginald it was contended that the power givexx to> the trustees is entirely discretionary with them, and- that a court of equity has no jurisdiction to command them as to the exercise of that power, ■provided their conduct be bona fide, as in Larkin v. Wikoff, 75 N. J. Eq. 462, 478, and that there was no imputation of mala fMes in the ease. The question thus presented was peculiarly one of equity cognizance and triable in chancery alone. Lippincott's Case, 68 N. J. Eq. 578. Only the court of chancery can follow trust funds. Koch v. Feick, 81 N. J. Eq. 120. It is true that the jurisdictional question was not raised in the court below, or in this court, and tire argument here on both sides was on the equitable doctrine invoked; nevertheless, while the court helow lacked jurisdiction of the question which underlies and is the basis of its decree, I think it should be affirmed, because it orders the distribution which the will directs, namely, an equal division of the residue. This is tire only distribution that the orphans court could order. Therefore, the decree under review will be affirmed.