author: Per Curiam.

text:
    William R. Weeks, appellant, v. Esther G. Selby et al., respondents.
    [Filed June 18th, 1900.]
    1. Sections 128 and .129 of the Orphans Court act control in the matter of awarding commissions to executors.
    2. The allowance of commissions to executors will be made with reference to their “actual pains, trouble and risk” in settling the estate, rather than in respect to the quantum of the estate.
    . 3. By the terms of the proviso to section 129, if the estate exceeds $50,000, the basis of fixing the amount of commissions to be allowed is to be determined by the “actual services rendered.”
    4. In an estate of over $50,000, in which there is no litigation or difficulty in gathering the estate together, and where the investments of the testator are still held by the executor, except as changed by maturity and reinvestment, and the “actual pains, trouble and risk in settling the estate” has not been great, an allowance of one per cent, on $1,197,501.57 of personal property is liberal for the “actual services rendered.”
    On appeal from a decree of the Essex orphans court, as follows:

      Fort, J.
    This is an application to settle counsel fees and fix the commission of the executor. On the hearing the court disposed of the matter of counsel fees and fixed the sum of $500 as a reasonable compensation for the counsel of the executor, and allowed to the counsel of the heirs on this accounting the sum of $150 each.
    The estate in this case, according to the account, amounted to $1,197,501.57 of personal property. The claim of the executor for commission upon other than personal property will not be considered by the court, and in disposing of the case the commissions will be determined on the basis of the amount of personal property above stated.
    The one hundred and twenty-eighth and one hundred and twenty-ninth sections of the Orphans Court act (P. L. of 1898 p. 725) control the court in the matter of the disposition of this question. This statute declares that the allowance of commission to executors shall be made with reference to their actual pains, trouble and risk in settling the estate, rather than in respect to the quantum of the estate; and it is expressly enacted that the commissions to be allowed shall never exceed the rate fixed by the one hundred and twenty-ninth section; and at the end of the one hundred and twenty-ninth section this proviso occurs:
    “Provided, that the commissions of executors, where the receipts exceed the sum of $50,000, shall be determined by the orphans court on the final settlements of their accounts, according to the actual services rendered, not exceeding five per centum on all sums which come into their hands.”
    It will thus be seen that in estates where the amount is less than $50,000 the basis of fixing commissions is “the actual pains, trouble and risk of the executor in settling the estate,” and not upon the basis of the quantum of the estate; and in eases exceeding $50,000, the basis of determining the amount of commissions to be allowed is, to use the language of the statute, to be determined by “the actual services rendered.”
    In this ease the evidence discloses that the estate of Edwin Lister, while large, was very easily settled. There was no litigation; there was no difficulty in gathering the estate together; the investments of the executor, at this time, are the same as those of the testator, with the exception of one $10,000 item; the “actual pains, trouble and risk in settling the estate,” so far as the executorship is concerned, has not been great; and even allowing for all that the executor claims 'that he has done in connection with this estate, it is quite apparent that his labors have neither been onerous nor continuous. However, the court does not consider that commissions to executors should be solely determined upon the basis of investment and reinvestment of the estate; but the question of the character of the estate, and the actual services in handling the estate by the executor, should all be carefully taken into account. At this time the court will not pass upon the question of commissions of this executor as trustee, nor will the court now consider, in connection with these commissions, the fact that $5,000 is alleged to have been withheld by the executor, while claiming to act as trustee, in paying over to the heirs certain moneys of the Lister estate. Those matters can be disposed of later, when the trustee account shall be before the court. Nor will the court, in fixing those commissions, have any regard to the litigation in the court of chancery, referred to in the testimony, nor whether it is or is not, in the judgment of the court, from the evidence in the cause, the trusteeship, rather than the dutiep and obligations of the executorship.
    The question, then, simply is what commissions shall be allowed the executor, in this intermediate account, for his “pains, trouble and risk” in the “actual services rendered” by him to the estate. He asks that the court shall allow him the maximum allowed by the statute—that is, five per cent, on the entire estate.
    The court regards this application as excessive, unreasonably so. In this case there will be an allowance of commissions on the basis of one per cent, of the estate, and the decree for final fees and commissions, calculated on that basis, will be signed on presentation.

      Mr. Charles L. Gorlin, for the appellant.

      Mr. Rolert II. McCarter and Mr. Chauncey C. Parlcer, for the respondents.
   Per Curiam.

The decree appealed/ from was made originally in the Essex county orphans court, and is affirmed, for the reasons given by Mr. Justice Fort-in his opinion filed in the orphans court.

For affirmance — The Chancellor, Chiee-Justice, Van Syckel, Dixon, Collins, Port, Garretson, Hendrickson, Bogert, Adams, Vredenburgh, Voorhees—12.

For reversal—None.


source: Caselaw Access Project

license: Public Domain

text:
    The Millville Improvement Company, defendant and appellant, v. The Pittsburgh Plate Glass Company, complainant and respondent.
    [Filed November 19th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in lk Diclc. Gh. Rep. 527.

      Mr. Walter H. Bacon, for the appellant.

      Mr. James J. Reeves, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given by Vice-Chancellor Grey, who advised it.

This affirmance is, however, without prejudice to the parties in respect to any application they may be advised to make in the court of chancery, when the cause is remitted, as to the mode of sale of the mortgaged premises directed by the decree.

For affirmance — The Chancellor, Chibe-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Bogert, Adams, Vredenburgh—12.

For reversal—None.


text:
    John Illingworth, complainant and appellant, v. William S. De Mott et al., defendants and respondents.
    [Filed November 19th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Uf. Dick. Oh. Rep. 8.

      Mr. Frank E. Bradner, for the appellant.

      Mr. James E. Howell, for the respondents.
   Per Curiam.

The-- decree dismissing the bill of the complainant is affirmed, upon the grounds stated in the opinion of Vice-Chancellor Emery, who advised it.

Whether the complainant, upon the facts proved, is entitled to any relief in equity, is not decided. The cause was tried upon the theory that defendants, as agents of complainant, had made secret profits out of a purchase complainant was induced to make; such was the issue presented by the pleadings, and it was properly disposed of by the vice-chancellor.

For affirmance — The Chancellor, Chief-Justice, Van Syckel, Dixon, Garrison, Collins, .Hendrickson, Bogert, Adams, Vredenburgh, Voorhees—11.

For reversal—None.


text:
    Sallie Warmoth, appellant, v. Wickliffe B. Durand et al., respondents.
    [Filed November 19th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 12 Dick. Oh. Rep. 160.

      Mr. James F. Howell, for the appellant.

      Mr. Henry Young, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the opinion of Vice-Chancellor Emery, who advised it.

For affirmance — The Chancellor, Chief-Justice, Van Syckel, Dixon, Collins, Port, Garretson, Hendrickson, Bogert, Adams, Vredenburgh, Voorhees—13.

For reversal—None.


text:
    The City National Bank of Salem, complainant and respondent, v. Caroline W. Van Meter, defendant and appellant.
    [Filed November 19th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Ik- Diclc. Ch. Rep. 32.

      Mr. Norman Grey, for the appellant.

      Mr. William F. Hilliard, for the respondent.
   Per Curiam.

The decree below is affirmed, on the grounds stated in the opinion of Vice-Chancellor Reed, who advised it.

For affirmance — The Chancellor, Chief-Justice, Van Syokel, Garrison, Hendrickson, Bogert, Adams, VredenBURGH, VoORHEES—9.

For reversal—Dixon, Collins, Fort—3.


author: Per .Curiam.

text:
    Robert P. Lister et al., complainants and respondents, v. William R. Weeks, executor and trustee, defendant and appellant.
    [Filed November 19th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 15 Dick. Gh. Rep. 215.

      Mr. Charles L. Corbinj for the appellant.

      Mr. Ghauncey G. Parker and Mr. Robert E. McCarter, for the respondents.
   Per .Curiam.

The decree appealed from removed appellant from his position as trustee under the will of Edwin Lister, deceased. While a trustee selected by a testator should not be removed except upon satisfactory proofs, the examination of the proofs has not led us to the view that the conclusion reached therein by Vice-Chancellor Stevens, who advised the decree, was so erroneous as to require reversal. The decree will, therefore, be affirmed, on the grounds stated by him in his opinion.

For affirmance — Ti-ie Chancellor, Chiee-Justice, Van Syckel, Dixon, Collins, Port, G-arretson, Hendrickson, Bogert, Adams, Vredenburgh, Voorhees—12.

For reversal—None.


author: Maoue, Chancellor.

text:
    R. Henry Holme et al. v. Louisa J. Shinn.
    [Filed May 22d, 1901.]
    1. Lands were devised to Israel Smith and the heirs of his body by a will executed in 1818. Testatrix died in 1825, and the operative effect of her will was governed by the provisions of the act of June 18th, 1820. Upon her death, Israel took a vested estate therein for life; when he after-wards married, his wife took an inchoate estate of dower therein; as children were born, each became seized of a vested estate in fee expectant on Israel’s death, and opening to admit a like vested estate in subsequently born children.
    2. Israel and Lucy, his wife, and their only surviving child, James, conveyed their respective interests in the lands to one Van Meter, who reconveyed the same to Israel, Lucy and James as joint tenants. Van Meter’s conveyance on its face passed only a life estate because the word “heirs” was omitted. By a stipulation of parties, it is admitted that the deed was intended to pass a fee-simple estate, and the omission of words of inheritance was by mistake of the parties.-—Held, that the deed may be reformed to effectuate the admitted intent of the parties thereto, either under the general prayer for relief, or under an amendment of the bill by a specific prayer.
    3. James survived his father and mother, and died seized of the lands in question, unmarried and intestate. Those nearest to James in consanguinity were first cousins, who were not of the blood of Ann Smith, and they are complainants in the bill. The next in consanguinity was defendant, who was of a more remote degree than complainants, but was of the blood of Ann Smith. Upon bill to quiet title—Held, that James took by purchase from Yan Meter and that his heirs-at-law took the lands, although not of the blood of Ann Smith.
    Argued at February Term, 1901, and briefs_ afterward submitted, the last on May 16th, 1901.
    This is a bill to quiet title to lands.
    Complainants are first cousins of one James D. Smith. They .are in possession of the lands in question, and claim them as "the heirs-at-law of the said James D. Smith, who died in possession thereof, seized, as they claim, of a descendible title therein.
    The defendant is a cousin of the said James D. Smith, but of one degree more remote than the complainants. Her claim is that although of more remote relationship, her title to the lands is to be preferred to that claimed by the complainants, because, as she maintains, the title of James D. Smith was derived from his great-grandmother, Ann Smith, and that complainants are not of the blood of the said Ann Smith, while she, the defendant, is of her blood.
    The respective claims of the parties being presented by proper pleadings, an order for a feigned issue was made in the cause. The transcript has been returned, certified, with a special verdict, from which the following facts appear:

      Ann Smith died in December, 1825, seized of the lands in ■question. She left a will, dated April 17th, 1818. By the construction given to that will by the supreme court in 1830 (Den v. Dance, 6 Dalst. , the lands in question passed by a devise in the following-words:
    “I give and devise said plantation and tract of woodland to the said Israel Smith and to the heirs of his body, and for want of such heii-s, to the aforesaid Joshua Smith, Powell Smith and Mary Smith, wife of Merriman Smith.”
    Israel Smith was the grandson of Ann Smith, and was at her ■death an infant and unmarried. Afterward he intermarried with Lucy Ann Dennis, his cousin, and had five children, all of whom died in infancy except one, named James D. Smith, who was born October 20th, 1846. Three children of the said Israel and Lucy Smith had been born previous to the birth of James, but were all then dead. One child was born afterward, .and died in infancy.
    James D. Smith survived his father and mother and died intestate and without issue, October 20th, 1889. It appears from the special verdict that the complainants include all of the first cousins of James D. Smith, deceased, except one, and he is represented by persons to whom he had assigned his interest in the lands in question. Although they are nearest in consanguinity to James D. Smith, deceased, complainants are not ■of the blood of Ann Smith. It also appears from the special verdict that the defendant is a second cousin of James D. Smith, and is of the blood of Ann Smith.
    The special verdict shows that James D. Smith, by a deed bearing date October 21st, 1867, conveyed to one Edward Van Meter all his estate in the lands in question, and that the said Israel Smith and Lucy A. Smith, his wife, by a deed bearing date October 22d, 1867, conveyed all their estate in the lands in question to the said Van Meter.
    It further appears that the said Van Meter and his wife, by deed bearing date October 23d, .1867, conveyed the lands in qriestion to Israel Smith, Lucy A. Smith and James D. Smith, habendum, as joint tenants and not as tenants in common. Since this deed did not contain any words of inheritance in its grant (the word “heirs” being omitted), it operated only to convey a life estate, terminable at the death of the last survivor of the three grantees.
    After Israel Smith and his wife, and James D. Smith had died, Caroline Yan Meter, the widow of the said Edward Yan Meter, to whom said Edward Yan Meter had devised all his estate by his last will, conveyed an undivided seven-eighths of the lands in question to the seven complainants related to James D. Smith, and by a separate deed conveyed one undivided eighth of the lands in question to the assignees of the remaining first cousin of James D. Smith, who are the other complainants.

      Mr. Clement 11. Sinnickson, for the complainants.

      Mr. Norman Grey, for the defendant.
   Maoue, Chancellor.

Eor reasons counsel will understand, I deem it my duty to ■ state the conclusions I have reached in this case, without the. delay which would be required to enable me to prepare an elaborate opinion.

When Ann Smith executed her will in 1818, the law of this state in respect to such estates as were estates tail at common law, had been declared by the provisions of the act of August 26th, 1784 (Pat. L. of 1781 p. 53), as explained by the act of March 23d, 1786. Pat. L. of 1786 p. 78. When Ann Smith died in 1827, the act above cited had been repealed by section 3 of “An act further regulating the descent of real estates,” passed June 18th, 1820. R. L. of 1820 p. 771. By section 2 of the act last mentioned, regulations as to such estates were enacted. They were in force at the death of Ann Smith. The section in question is now the eleventh section of our present statute of descents. Gen. Stat. p. 1195.

It has been suggested in the argument that there might be a question whether the nature of the estate transmitted by the will of Ann Smih was to be discovered by the act which was in force when she executed that will, or by that in force when she died and her will took effect.

This question has, however, been disposed of by the decision of the court of errors in Doty v. Teller, 25 Vr. 163, upon a will made before the act of 1820, where the testator died after the passage of that act. It was distinctly held that the provisions of the act in force at the testator’s death governed the construction and operative effect of the will. It was also thereby held that a devise, such as that with which we are now dealing, vested an estate for life only in the devisee named, and a fee-simple in his children.

It results, therefore, that, upon the death of Ann Smith; Israel took a vested estate for his life. By the express terms of the act of 1820, his wife, Lucy, acquired, on her marriage, an inchoate estate of dower therein. As children were born to Israel, they successively took a vested estate in fee-simple in the lands in question, expectant on Israel’s death, and opening to admit a like vested estate in subsequently born children.

I deem it unnecessary in this cause to determine how the estate which each of such children became vested with at birth, went in case of its death intestate, before the death of Israel, for when the conveyance to Yan Meter was made in 1867 it cannot be doubted that the whole estate in the lands in question passed thereby to Yan Meter. Israel and his wife passed by their conveyance his life estate and her inchoate dower and any interest which Israel may’have acquired by the death of any of his children prior to the birth of James D. Smith. James passed by his deed whatever interest he acquired by the will of Ann Smith, or by the death of. any of the other children of Israel Smith. By the conveyances to Yan Meter, therefore, the whole legal title to the lands in question became vested in him.

The conveyances to Yan Meter are expressly declared therein to have been made upon considerations which are valuable and not merely nominal. Unless the case discloses that they were made without any consideration paid or received therefor, and were intended by the parties to vest the title in Yan Meter not for his own benefit, but for the benefit of his grantors, they must be deemed to have passed to him complete title, which passed by his devise and has been conveyed to complainants by his devisee. Upon this view defendant has no estate or interest in the lands.

It is suggested that from the proximity of the dates of the conveyances, their simultaneous execution, acknowledgment and delivery, and the fact that neither the acknowledging officer nor the widow of Yan Meter (who are the only survivors of those present at the delivery) were aware of any consideration having been passed between the parties, it should be inferred that they were made without consideration and to convey to Van Meter a title for the benefit of the grantors, and that since he reconveyed to them only a life estate, the reversion -that remained in him was subject to a trust for the benefit of the survivor, who was James. If so, the conveyance by Yan Meter’s devisee to complainants (who were not purchasers for value) passed the title subject to such trust. "Upon this theory, the equitable estate of James, who died intestate, is, in equity, to be deemed to have descended as a similar estate at law would do. Martling v. Martling, 10 Dick. Ch. Rep. 771. But it would be open to serious question whether that estate was not the very estate which came to him by devise from his great-grandmother, Ann Smith, and from inheriting which the heirs of James, not of her blood, are by our statute excluded. Gen. Stat. p. 1196 § 14. Such was the view of the courts of England in applying the common law rule of which our statute is substantially a copy, as may be seen in the reference below made. Mr. Hargrave puts it thus:

“If an heir makes a feoffment limiting the use to him or his heirs, or if there was no declaration of uses and the feoffment was not on such a consideration as to raise a use in feoffee, and consequently the use resulted to the feofor, in either case he is in by his ancient use and not by purchase.”

But the case actually before us, by the verdict upon the proofs and admissions of the parties, is different. The devisee of Van Meter, who might claim that the reversion which remained in Van Meter after the termination of the life estate created by his conveyance, was his own estate unburdened by any trust in her conveyance to the complainants, not only admits that the conveyances to him were without actual consideration, but asserts that his conveyance to Israel, Lucy and Janies was intended to convey an estate in fee to the grantees as joint tenants, and that the word “heirs” was omitted therefrom by mere mistake.' Her conveyances to complainants were made to cure that mistake.

The solicitors of the complainants and defendant, by a written stipulation, expressly admit that the omission of the word “heirs” from the conveyance of Van Meter was by mistake, and that the conveyance is to be read and considered here as if that word were inserted where necessary, and the deed was thereby so corrected as to pass to the grantees therein an estate in fee in joint tenancy.

Upon this evidence and concession there might be a decree for a reformation of the deed, and although there is no specific prayer for such relief in this case, I think such a prayer may be introduced by amendment, or the relief granted under the general prayer. Coe v. New Jersey Midland Railroad Co., 4 Stew. Eq. 105.

Assuming the conveyance to be so reformed, it is obvious that the title which James acquired thereby, upon his surviving his father and mother, was a fee, which was an inheritable estate, and which, upon his death, descended to his heirs-at-law.

Was the inheritance (to use the word of our statute) one which came to him by the devise of Ann Smith? If so, complainants, who are not of her blood, are excluded from inheriting.

Was the inheritance one which came to James from Yan Meter, being transmitted to him by the terms of the conveyance as reformed ? If so, complainants, who are next in consanguinity to him, although not of the blood of Ann Smith, are not excluded from inheriting, and defendant has no estate or inheritance in the lands.

The enactment of our statute pursuing the precept and policy of the common law, justifies in applying to cases under it the doctrines of the ancient expounders of the common law. Lord Coke says:

“If a man be seized of lands as heir on the part of his mother and maketh a feofment in fee and taketh back an estate to him and to his heires, this is a new purchase and if he dyeth without issue the heires on the part of the father shall first inherit.” Co. Litt. of Fee Simple, c. 1 § 4.

And Mr. Hargrave notes that this is to be understood to speak of two distinct conveyances in fee; the first passing the -use as well as the possession to the feoffee and so completely divesting the feoffor of all interest in the land, and the second regranting the estate to him. See Viner’s Abr., tit. "Heir W;” Greenl. Cruise, tit. 39 ch. 3 § 33; Bac. Abr., tit. “Descent E;” Price v. Langford, 1 Salk. 337; Harman v. Morgan, 7 T. R. 104.

This doctrine and its application to the case in hand is not open to the criticism of the counsel of the defendant. It is true that the conveyance of James to Yan Meter was without consideration, but it was made for the purpose of passing the title to Yan Meter in fee, and it was good for that purpose though voluntary, for it was part of their joint purpose that Yan Meter should reconvey such title as he acquired to James. When he made such conveyance, James' title came from him by conveyance. No one was entitled to question what James did with the lands. He might convey them or devise them. His prospective or presumptive lieirs-at-law, though of the blood of Ann Smith, had no interest in the lands, and he might at will transmute by proper conveyance the estate he had received by her devise into an estate by purchase, inheritable by his heirs generally.

It results that complainants are entitled to a decree.


author: Magie, Chancellor.

text:
    Ella L. Rigney v. Thomas G. Rigney.
    [Filed June 7th, 1901.]
    1. Although a decree for alimony does not reserve to the parties a right to apply for a modification of the amount awarded when the circumstances of the parties have changed, yet, under the true construction of the Divorce act, the chancellor may entertain an application of that kind.

      2. Such application may be by petition in the cause and must be supported by proof of such changed circumstances as justify and require a variation of the amount of alimony allowed.
    3. A defendant who resists and evades the enforcement of the decree for alimony would not be permitted to procure a reduction of the amount allowed because of changed circumstances, except upon performance of the decree up to the time when the circumstances are shown to justify reduction.
    4. When a defendant has continued to resist the enforcement of the decree up to the time of his death, the court will not entertain the application of his personal representative for a reduction of the alimony which has accrued.
    Argued orally September 10th, 1900, and on briefs submitted under an agreement of parties May 15th, 1901.

      Mr. James P. Northrop, for the petitioner.

      Mr. Maximilian T. Rosenberg, for the complainant.
   Magie, Chancellor.

A petition in the above-entitled cause has been presented by Abigail R. Rigney, claiming to be the executrix of the last will of Thomas G. Rigney, late of the state and county of New York, who was the defendant therein.

The petition purports to recite a decree of this court, made in the said cause on the 11th day of June, 1887, whereby the parties to the said cause were divorced from the bond of matrimony and the custody of the two children of their marriage was awarded to the complainant, and defendant was decreed to pay to the complainant alimony pendente lite, and alimony from the date of the decree, at the rate of $45 per week for complainant’s support and maintenance, and the support, maintenance and education of their children.

It is asserted in the petition that the petitioner intermarried with the defendant on August 27th, 1887, and lived with him as his wife until his death May 23d, 1898, when she was left his widow with four children of their marriage.

The petition also asserts that the deceased, Thomas G. Rigney, left a will, subsequently admitted to probate by the surrogate of the county of New York, upon which letters testamentary were issued to the petitioner as sole executrix, and that after the said letters were granted to petitioner, the said complainant filed a claim against the petitioner as such executrix, which the petitioner rejected and thereupon the complainant brought an action in the supreme court of the State of New York against petitioner as executrix to recover the amount of alimony alleged to be due upon the said decree from the 4th day of August, 1887, to the death of the defendant.

The petition further asserts that the complainant in this cause intermarried with one Edgar L. Laing, in June, 1889, and lived with him until his death in the latter part of the year 1899, and that the two children of the complainant had resided with the said Laing during that time, and it is asserted (upon the belief of the petitioner) that Laing was, during the continuance of his marriage relation with the complainant, able to support and maintain, and did support and maintain, complainant as his wife.

The prayer of the petition is for an order varying or modifying the former decree in the said cause.

An affidavit of the petitioner is appended to the petition, verifying it as far as the same asserts her own acts and deeds, and her belief of its truth, in respect to what it asserts, as to the deeds of others. The affidavit was sworn to August 20th, 1900.

The complainant presents an answer to the said petition. She thereby admits that a decree substantially such as is set out in the petition, was made in the above-entitled cause, except that the decree in addition adjudged that the defendant should pay the costs of the action.

The complainant, in the answer, asserts that the defendant, before the decree was made, removed from New Jersey, where complainant and defendant had previously resided, and thereafter continued to absent himself from New Jersey, and to remain in the State of New York; that she was compelled to bring an action against the defendant in New York on August 4th, 1887, for the costs and the alimony then accrued, and which the decree adjudged defendant should pay to her; that defendant contested her right to recover upon said decree through the courts of New York, and in .the supreme court of the United States, and after she had secured judgment in her favor, on June 29th, 1897, defendant attempted to evade the payment, and did succeed in evading payment until, by supplementary proceedings, she recovered part of the judgment in his lifetime, and the remainder after his death.

Complainant further asserts in her answer that no part of the alimony decreed to be paid to her has ever been paid, except that which had accrued August 4th, 1887, and which she secured by the judgment above mentioned. The answer further shows that after the death of the defendant, complainant presented to the petitioner, as defendant’s executrix, a claim for the alimony which accrued from August 4th, 1887, to his death on May 23d, 1898, and the claim being rejected, she brought suit against the petitioner as his executrix in New York for such alimony, which suit petitioner is resisting. The answer admits the marriage of the petitioner with the defendant, August 27th, 1887, and complainant’s own marriage to Laing in June, 1889, and that one of her children by the defendant became of age January 1st, 1895, and the other October 15th, 1897.

The answer further asserts that Laing never contributed to the support of her children, but their support came from the complainant’s means and the labor of herself and children.

There is no affidavit annexed to the answer, but it purports to be signed by the complainant, and to have been sworn to September 8th, 1900, before a notary public of New York.

Neither the petition nor the answer has been filed. Both were first presented on May 15th, 1901. This practice is irregular and not to be encouraged.

Upon the petition and answer thus presented briefs have been submitted, and counsel for the petitioner urge that I may and should make some order in conformity with the prayer of the petition.

They do not maintain .that the decree in question may be annulled as is prayed for. Manifestly no such course could be taken. It was made in a cause the subject-matter of which was within the jurisdiction of this court, and it has been solemnly adjudged in the supreme court of the United States that this court had obtained jurisdiction of the defendant against whom it was made. Laing v. Rigney, 160 U. S. 539. There is no pretence that the decree does not express (as it was finally entered) the real judgment of the court, lior that it was obtained by any fraud or under any mistake.

Nor do they ask that an order should be now made for a modification of the decree as now prayed for, but a reference to a master to ascertain what complainant in equity is entitled to under the decree. ■ It will be observed that such a reference assumes the right in this court to make a decree, different, not ■in respect to its operation in the future, for that ceased on the death of the defendant, but to its operation in the past.

Under the former practice, a decree awarding permanent alimony contained a clause giving liberty to the parties to the cause to apply, on future change of circumstances, for a variation and modification of the decree as to such alimony. An example of this practice will be found in the decree appended to the opinion of Chancellor Pennington in Richmond v. Richmond, 1 Gr. Ch. 91. See also Miller v. Miller, Sax. 386; Snover v. Snover, 2 Beas. 261; 2 Bish. Mar. & D. § 428.

Under a New York statute conferring jurisdiction to decree permanent alimony, but without providing for subsequent variation or alteration of the decree, it was held that a decree once made was irrevocable notwithstanding changed circumstances. Walker v. Walker, 155 N. Y. 77.

By the legislation in this state now contained in section 19 of the Divorce act (Gen. Stat. p. 1269) this court has been empowered to make such order respecting alimony “as from the circumstances of the case shall be fit, reasonable and just.” This language, standing alone, might reasonably be construed to give jurisdiction to alter and vary the' allowance made thereunder according to the changed circumstances of the parties. But such a construction is required to be given to that language in view of the subsequent provision in the same section for the sequestration of the property of the defendant, which is expressly declared to be applicable to the maintenance and allowance fixed bjr the decree, or to “such maintenance and allowance as to the said court shall from time to time seem reasonable and just.” Such was the view expressed by Chancellor Pennington. Richmond v. Richmond, ubi supra.

Application to vary a decree in this respect may be made by petition in the cause. Snover v. Snover, supra; S. C., 2 C. E. Gr. 85. Such an application is not one involving a review of the propriety of the decree as made. It must exhibit changed circumstances and new facts which have arisen since the decree. To succeed on such an application, there must be clear proof of such new facts and circumstances as will justify and require a variation in the amount of alimony allowed, either increasing or diminishing it. 2 Bish. Mar. & D. 429, 429a, 433. There must appear to be cogent reason for'diminishing the amount of alimony. Barrett v. Barrett, 14 Stew. Eq. 139.

The statutory jurisdiction to vary the amount of alimony from time to time, which is found in this legislation, will not, in my judgment, be ousted because the decree has omitted to reserve to the parties the right to apply for such variation.

The defendant in the original action, therefore, had a right to apply for and urge the reduction of the amount of alimony allowed 'by the decree, upon proof of changed circumstances and conditions.

The claim of petitioner is, that upon complainant’s mariiage to Laing the defendant could have so applied, and upon proof of such marriage this court w.ould have diminished the amount allowed by so much as was included therein for complainant’s support and maintenance. What this reduction would have been, if any was proper to be made, does not appear. It is not claimed in the petition, but yet it is obvious, that the defendant might have also applied for a reduction of the amount allowed by the decree when the children for whose support and maintenance the decree was in part made came to years when they became self-supporting, or at least when they became of age. In Snover v. Snover, supra, the chancellor suggested that a defendant in similar circumstances might apply for a reduction of the allowance made in respect to a female child when the child had attained the age of eighteen years.

The defendant in the action neglected to present to the court the suggested changes of circumstances or to ask the variation or modification of the decree on either ground. The petition discloses no reason for such neglect, -but on the facts disclosed by the answer it is apparent that the cause was his continued and obstinate resistance to the decree, and his purpose not to perform it by paying the alimony. An application on his part would not have moved this court to give him relief by reducing, the alimony, except upon condition that he should obey the decree at least by payment of the alimony up to the time when the changed circumstances were shown to exist and to justify the reduction. While resisting the decree (and, according to the answer, his resistance continued until his death), he manifestly had no right to relief. What he could not have done while he lived his executrix, in my judgment, may not do after his death. The decree which he resisted and neglected to assail by an application for variation must stand unvaried.

How far the decree is binding on the executrix or the estate which she is administering in a foreign state is not for this court to determine.

The relief applied for must be denied and the petition dismissed, with costs.


text:
    Sarah Perrine's Executors v. Charles B. Newell et al.
    [Filed July 16th, 1901.]
    An owner of land, part of which adjoined the Delaware river and was below high tide, but embanked against tides with other lands, under the provisions of the Meadow act of November 29th, 1788, and its amend-, ments and supplements (Gen. Stat. p. 8088), devised said lands to trustees for the life of his son Charles, and, upon his death, to Charles’ children. It was held in this court that the trustees under the said will took an estate for the life of Charles, and that Charles’ children took a vested interest in the remainder. During the life of Charles, the banks of the meadow were several times broken, and the meadow company repaired the same and imposed on the meadow so devised an assessment for the cost of such reparation. The trustees advanced money to pay the same, and before their expenditures were repaid, the life cesPui que trust died.—Meld, that expenditures for such reparation by trustees for the life of another, might be reimbursed out of any income coming to the cestui que trust for whose life they held title, but were not chargeable upon his children who had a vested remainder in fee subject to his life estate.

      Mr. William T. Hilliard, for the complainants.

      Mr. Qlement II. Sinniclcson, for the defendant’s trustees.
   Magie, Chancellor.

This cause was brought to hearing on the pleadings and proofs, and a decree made thereon February 23d, 1892. The opinion of the late chancellor is reported in Perrine v. Newell, 4 Dick. Ch. Rep. 57.

The decree xecited that the mortgage sought to be enforced upon the lands described in the bill was a lien upon the interest of the defendant Charles B. Newell, and of the defendant Charles W. B. Newell therein, and those defendants were foreclosed of a right to redeem. It charged upon the interest of the defendant Eliza A. Bradway and the defendant Deborah Tufts, in the same lands, a debt due the complainants upon a bond belonging to the complainants and intended to be secured by the said mortgage. It referred the cause to Master Acton, to ascertain and report the amount due complainant upon the said bond and the mortgage intended to secure it, and also to ascertain and report the amount due to William Newell and Elijah W. Dunn, trustees under the will of James W. Newell, deceased, for advances made by them upon the said premises, to be ascertained under rules laid down in the opinion of the chancellor.

The facts on which the judicial action proceeded sufficiently appear in the chancellor’s opinion above referred to. His conclusions were that the trustees under the will of James W. Newell, deceased, held title to the lands in question for the life of Charles B. Newell; that Charles B. Newell had an equitable estate in the lands which he could mortgage, and which he had mortgaged to secure the bond of the complainant. lie also determined that at the death of James W. Newell the children of Charles B. Newell took, under James W. Newell’s will, a vested remainder in the said lands, subject to the life estate of their father, and could mortgage their interests. lie also found that the mortgage in question, made by Charles B. Newell and by Charles W. B. Newell, his son, and by Eliza Bradway and Deborah Tufts, his daughters, was good as to the estate of Charles B. Newell and the interest of Charles W. B. Newell, but was void as to the interest of Mrs. Bradway and Mrs. Tufts, because they were married women whose husbands had not joined in the mortgage; but the debt evidenced by the bond was imposed as a lien upon their interest, because the money advanced had been expended for the benefit of their estate. He also found that the trustees holding the title for the life of Charles had made certain expenditures in the execution of their trust,, which remained unpaid to him, and that they were entitled to hold the lands during his life, until such expenditures should be reimbursed to them.

The master to whom the matter was referred made a report December 17th, 1896. He found that $2,058.17 was due to the complainants, who are the-executors of Sarah Perrine, who was the complainant at the time the decree was made. In respect to the amount claimed to be due the trustees for advances made by them, he reports that in order to ascertain what expenditures should be allowed the trustees, he needs to have further instruction in relation to certain items of their claims.

The matter has been presented as if on a motion for further instructions to the master. If the opinion of the late chancellor sufficiently indicates the rule which should govern the master, no such instructions would be proper; but if the changed circumstances indicate that instructions are proper, they should be given, or if the master’s report enables a proper decree to be made without further reference, such a decree should be made.

The master, by his report, specially refers to expenditures claimed to have been made by the trustees in respect to which he is ■uncertain, as being divided into four classes, only three of which need be considered: (1) payments made by the said trustees to Charles B. Newell, the cestui que trust, there being at the time of such payments a deficit due to them; (2) charges for interest paid by the said trustees, when it appears that they had borrowed moneys upon their personal obligation for the purpose of such expenditures on the trust estate, and that they have claimed interest upon each deficit shown by said account; (3) allowance for certain expenditures made of questionable advantage to the estate or the remaindermen.

The first two items relate to the expenditures made by the trustees in respect to the trust estate during the life of the cestui que trust, Charles B. Newell. The opinion, and the decree made thereon, clearly indicated that such expenditures, if properly made for the benefit of their trust, could be imposed upon the interest of their cestui que trust in the lands in question. The decree directed the ascertainment of the amount of such expenditures for the purpose primarily of imposing them upon the life interest of Charles B. Newell. At the time the decree was made Charles B. Newell was living. He died June 10th, 1892, and at the time the master made his report the estate of the trustees in the lands in question had ceased to exist. Hnder the will of James W. Newell they held the land for the lifetime of Charles B. Newell, and upon his death their interest ceased, and the life estate of Charles was terminated. There was, therefore, no purpose to be served, so far as concerned the life interest of Charles, in determining what the expenditures had been.

Some part of the master’s report, respecting the third item as to which he finds difficulty, seems designed to elicit the view1 of the court in respect to a matter which was left undetermined at the time of the decree. The opinion of the learned chancellor, after expressing the view that the proper expenditures of the trustees were chargeable upon the interest of their cestui que trust, and that they would be permitted to hold the lands during his life until they reimbursed themselves for such expenditures, added: “I do not mean to be understood by that which I have just intimated that under any circumstances the trustees will not be permitted to hold the farm beyond the life of their cestui que trust for the purpose of reimbursing themselves; on the contrary, I can conceive that necessary expenditures for the permanent betterment of the farm may extend such right, or indeed that insufficient income to meet the proper expenses of the prosecution of the trust, either in the past or in the future, may extend it.”

It is clear that the learned chancellor did not intend to declare that the expenditures of the trustees were chargeable upon the remaindermen. In respect to them, he made no determination, but directed the master, in accounting, to take testimony explaining the nature of the trustees’ disbursements, so that the court might be able to determine whether any part of them should be charged upon the remaindermen after the expiration of the life estate'of Charles B. Newell. The question which the learned chancellor thus intentionally left open should now be decided. It becomes necessary to determine whether the expenditures made by the trustees, or any part of them, can ■be imposed upon the interest of the children of Charles B. Newell, whose estate was a vested remainder in fee, subject to the life interest in the trustees for the benefit of their father, which life interest is now determined by his death.

The expenditures of the trustees, reported by the master, fall •into two classes: one class includes expenditures made by them in running the farm during the life of the cestui que trust; the other class includes expenditures of the following character: A large portion of the land in question .adjoined the Delaware river and was below high tide. Before the death of James W. Newell the owners of that land, and other lands similarly situated, had united in the formation of a company under the provisions of the act entitled "An act to enable the owners of the tide swamps and marshes to improve the same, and the owners of meadows already banked in and held by different persons to keep the same in good repair,” passed November 29th, 1788, and the various amendments and supplements to the said act. Gen. Stat. p. 2022. During the life of Charles B. Newell, and while the trustees had title to the said lands for his benefit, the banks which retained the tides. aifd preserved the meadows in which the lands in question were included, were several times broken down to such an extent as to require them to be repaired. If not repaired, the part of the farm in question became valueless to the cestui que trust. The legislation in question permitted the association to repair such breaches and to ascertain and assess upon the lands included therein a proper share of the expense of such reparation. If an assessment thus imposed was not paid, power was given to seize and rent out .said lands to such persons as would take the same for the least number of years and pay the assessment and expenses. The trustees expended money which they borrowed upon their personal security in paying such assessments, and these expenditures are within the second class I have above named.

With respect to the first class of expenditures, I think no possible question can be made but that the remaindermen cannot be liable to have the trustees reimbursed therefor out of their estate. The expenses of running the farm were expenditures for the benefit of the life estate and properly chargeable only upon it. 'If Charles B. Newell had been a life tenant, such •expenditures made by him could not be imposed upon the remaindermen, and the trustees who held the estate for his life encountered, in making such expenditures, a similar restriction.

The contention, however, is that the expenditures for assessments for the reparation of the banks which preserved the meadows were of. a different sort, and that in making them the trustees were benefiting the estate and the interests of the remaindermen, so that such expenditures should be properly chargeable to the remaindermen as a lien upon , their estate. The question is whether the trustees in paying the sums assessed upon this farm for such reparation, and in thus preventing a "renting out” of the same for a term of years, may be subrogated for such payment to the rights of the meadow company •or such person as the meadow company might have conveyed the land to, if the assessment had not been paid by the trustees. I do not think it open to question that the trustees owed no duty in this respect to the remaindermen. Their estate was an estate pur autre vie. There was no relation of trust or confidence between them and those who had a vested remainder in fee. Like other life tenants, they were bound to keep down encumbrances, to make proper repairs and not to suffer waste of the estate. Hpon the occurrence of a breach in the banks which tended to prevent the use of the meadow for the benefit of the cestui que trust, their duty to him, if they deemed it judicious, was to take such steps as would preserve his estate, and they could look to him and his estate for reimbursement, but I think they could not look for reimbursement to the remaindermen. Whether expenditure made for the original embanking of the meadows, assessed upon the meadows benefited, might not be chargeable upon the life tenant, and the remainder-men in equitable proportions need not be and is not decided. The expenditures in question were wholly for reparation. In this view the expenditures of the second class, above referred to, are not chargeable upon the remaindermen.

It may be added that if these expenditures are charged upon the remaindermen, they will be burdened with them although not made by themselves, nor by those who were their authorized agents, and which have been absolutely of no value to them, for it appears from the testimony taken by the master that the bank's of those meadows have been entirely broken down and the land is comparatively valueless.

Th result is that I do not find any ground upon which the trustees can impose upon the lands in question any part of their expenditures. The mortgagee is, therefore, entitled to enforce his remedy by a sale of the property, and it will be unnecessary to return the report to the master for any further proceedings.


author: Mague, Chancellor.

text:
    Elizabeth A. Crane v. J. Townley Crane.
    [Filed July 16th, 1901.]
    1. When a bill in equity for the annulment of a marriage for a cause not within tlje Divorce act has been taken pro confesso in the absence of any special rule on the subject, the proper practice is to take an order directing complainant to produce proof to sustain the allegations of the bill and to set down the cause for hearing.
    2. To annul a marriage for a fraudulent representation inducing the contract, it must be shown that the fraud affected.an essential of the marital relation.
    3. An explicit statement by a man about to be married that he was not afflicted by the loathsome disease called syphilis, made when it was his duty to state the truth, and knowingly false, is such a fraudulent representation as affects an essential of the marital relation.
    4. A decree in such a case should not be made upon the uncorroborated evidence of the complainant.
    On bill for annulment of marriage.

      Mr. David Harvey, Jr., for the complainant, ex parte.

   Mague, Chancellor.

The bill in this cause seeks a decree annulling the marriage of the complainant with defendant, upon the ground that the matrimonial contract between them was entered into by complainant under the inducement of a false and fraudulent representation made by defendant.

The jurisdiction thus invoked is not that conferred upon this court by the provisions of the “Act concerning divorces,” approved March 37th, 1874. Gen. Stat. p. 1267. The appeal is to the general jurisdiction over frauds which is inherent in this court and extends to the annulment of the marriage contract upon the ground of fraud.

That the jurisdiction of this court extends so far has been settled by our court of errors. Carris v. Carris, 9 C. E. Gr. 516. Such jurisdiction had been previously asserted by that eminent equity judge, Chancellor Green. McClurg v. Terry, 6 C. E. Gr. 226. Since those decisions it has been frequently recognized in this court, .and, in some cases, made the basis of decrees annulling marriages. Sickles v. Carson, 11 C. E. Gr. 440; States v. States, 10 Stew. Eq. 195; Seilheimer v. Seilheimer, 13 Stew. Eq. 412; Sinclair v. Sinclair, 12 Dick. Ch. Rep. 222. The doctrine of the English courts has lately been declared to be different, and the American eases, including Carris v. Carris, were criticised and disapproved. Moss v. Moss, Prob. 1897 p. 263.

The only question then is, whether the case presented justifies the exercise of the jurisdiction and the decree prayed for.

The subpoena which issued upon the filing of the bill was not served upon the defendant, but was returned with proof that he was a resident of the State of New York. He has been brought into court solely by publication and mailing of notice to him at his foreign residence, pursuant to the statute and the practice of this court.

Since the defendant did not appear or make any defence, the solicitor of the complainant, conceiving that the cause fell within the settled practice in causes under the Divorce act, presented an order of reference to a special master, which was inadvertently signed. The special master named therein made a report and accompanied it with depositions taken before him under rule 164. This practice was irregular. Since the relief sought was not under the Divorce act, but under the general jurisdiction of the court, the proper practice, in the absence of any special rule on the subject, would have been to take an order directing complainant to produce proofs to sustain the allegations of her bill, and upon the coming in of such proofs, to set the cause down for hearing under section 18 of the Chancery act. Gen. Stat. p. 405 § 172. When the irregularity was discovered, complainant was given the option to take such order or to set the cause down for hearing upon the depositions taken before the special master, as if taken under the proper order. She elected to set the cause down for hearing, and it was thus heard and considered.

The proofs before me present the following case:

In 1892, complainant, who resided and has continued to reside, in New Jersey, became acquainted with the defendant and engaged to marry him. Pending the engagement, a female friend of the complainant informed her that defendant was then suffering from the loathsome disease called syphilis, and urged complainant not to marry him. Complainant told defendant the information she had received respecting his condition. He indignantly and specifically denied it to her. As to the denial at that time the proof rests only upon her evidence. Defendant immediately went, accompanied by the complainant, to the person who had given her the information. In her presence defendant denied being diseased, and offered to submit to examination by any physician selected by complainant. This person was called as a witness and corroborates complainant as to what took place at the interview. While it does not appear that the nature of the disease which he denied'Jwas mentioned or described in that interview, I do not think that it admits of doubt that he understood that he was charged with being affected with .a loathsome disease which would render the marriage with complainant improper and impossible, and that his denials were directed to that charge.

Complainant testifies that, believing the explicit denials of the defendant, she married him on July 23d, 1893. In May, 1894, she discovered that he was diseased, and charged him with having syphilis. He acknowledged that he had the disease and had had it for fourteen years. Proof of this acknowledgment depends solely on complainant’s evidence.

After this acknowledgment complainant ceased to have marital intercourse with the defendant, but retained him in the house in which they resided (which was hers) and ministered to his wants until his condition became so horribly offensive that she declined further care of him, and in October, 1896, he left her and never returned. The circumstances of the separation have been held not to justify a divorce for desertion. Crane v. Crane, 45 Atl Rep. 270.

The depositions of two physicians are among those before me. One of them testifies that he first treated defendant for syphilis in 1892, which was before the marriage. The other testifies that he first treated defendant in 1894, when he found the disease to be in such a stage as to indicate, in his opinion, that it had existed prior to the marriage. Upon this evidence I deem it to be established that the defendant was diseased before his marriage and that his disease was syphilis. While neither physician testifies that he informed defendant that his disease was syphilis, the whole evidence, in my opinion, justifies the inference that the defendant actually knew that the disease for which he was treated in 1892 was syphilis, rather than some other and less noxious form of venereal disease.

Hpon the proofs, complainant insists that defendant’s denial was a denial that he had the disease in question, and that it was both false and fraudulent; that it operated to dispel the suspicions of complainant which had been aroused by the information'she had received and induced the marriage afterward entered into; acnd that for the fraud thus manifested, this court should declare, by its decree, that the marriage contract was null and void, as if never made.

The contract of marriage is one of exceptional and peculiar character. It may not be abrogated and avoided by the parties thereto as other contracts may be. On grounds of public policy, this state has an interest in the status created by a marriage contract, and when made it can only be dissolved on grounds and by judicial proceedings sanctioned by law.

An action for nullity is said to be of two sorts—one, where its purpose is to procure a decree making void a voidable marriage; the other, where the marriage is in fact void, its purpose is to procure a decree declaring it to be so. See 2 Bish. Mar., D. & S. § 794; A. v. B. L. R., 1 Perry & D. 559. The present action is of the former kind.

In Carris v. Carris, ubi supra, the court of errors recognized that in a proceeding to annul a marriage apparently created by contract, for the reason that the contract was induced by fraud, a like public policy was incidentally involved. While asserting and exercising the jurisdiction to decree a marriage void for fraud, the court distinguished a proceeding seeking such a decree from the ordinary case seeking equitable relief against contracts induced by fraud. The doctrine laid down in the prevailing opinion of Mr. Justice Bedle was that, while a court of equity would ordinarily set aside any contract which had been entered into by the inducement of fraud, yet a marriage contract would not be annulled except upon proof of such fraud as extended to and affected some essential of the marital relation, and not then if the avoidance of the marriage contract would be against sound considerations of public policy. It was declared that extraordinary fraud would alone justify the avoidance of the marriage contract. The doctrine was applied in that case to the following circumstances: The defendant, a woman, by concealing the fact that she was pregnant with child by another man, had induced the complainant to contract marriage with her. Since at the time of the contract and for the period of gestation under the impregnation of another person she was incapable of being impregnated by complainant, it was deemed that an essential of the marital relation, viz., the ability to propagate, was affected by the concealment, which was fraudulent. Since the contract, if not annulled, compelled complainant to accept the spurious issue as his own or to repudiate it with the result of marital estrangement, it was held that public policy did not forbid, but rather required, the avoidance of the marriage contract which was induced thereby.

In the case before me there is no evidence, expert or otherwise, that the disease with which defendant was suffering at the time of the marriage had rendered him incapable of begetting children. It is contended, as one ground for the relief asked, that it is matter of common knowledge, of which the court should take notice, that children begotten by one so diseased inherit the dise'ase.

While the proofs do not establish a case exactly parallel with that presented in Carris v. Carris, there is expert evidence, which is entirely convincing, that at the time of the marriage, and thereafter, marital intercourse between the parties could only take place at the imminent risk of communicating the foul disease to the healthy party, the complainant.

The question then is whether, if the proofs establish a fraudulent representation by defendant of freedom from the disease of syphilis, the fraud is to be adjudged to affect an essential of the marriage relation.

Misrepresentation as to freedom from disease in general or concealment of the existence of a diséase, although one in common apprehension communicable and transmissible to offspring, cannot, in my judgment, be so regarded. They fall within the line of false representations as to family, fortune or external condition, declared by Mr. Justice Bedle to be insufficient to justify the annulment of marriage. As to such and like matters the parties take each other for better or for worse. 1 Bish. Mar., D. & S. § 457. But as to a fraudulent representation of freedom from syphilis, I have reached a different conclusion. When a wife has discovered that her husband is infected with that disease, this court has held, 'in accord with decisions elsewhere, that she is justified in refusing to permit marital intercourse, and when he knowing, or having reason to believe, he is infected, persists in maintaining marital intercourse with her, he is guilty of extreme cruelty, for which a divorce will be decreed. Cook v. Cook, 5 Stew. Eq. 475. Discovery of the existence of that disease ought to produce and would produce a denial of marital intercourse, and consequently render impossible the procreation of children of the marriage. In that view the fraud in question touches an essential of the marital relation under the doctrine of Carris v. Carris. For do any considerations of public policy debar a party, imposed on by such fraud and induced to enter into a marriage contract, the continuance of which must produce results so disastrous, from the relief of a judicial declaration that the contract is null and void.

It remains to bo considered whether the proofs make out a case of such fraud as will require this court to annul this marriage.

In dealing with the proofs, I think a decree ought not to be made upon the unsupported evidence of the complainant. If proof, essential to the adjudication, rests wholly upon her evidence, uncorroborated by others or by circumstances, her ease must fail. Such is the rule in respect to divorce caces .announced by this court and sanctioned by the court of errors. McShane v. McShane, 18 Stew. Eq. 341; Costill v. Costill, 2 Dick. Ch. Rep. 346. For like reasons a decree annulling marriage must be considered as requiring such proof.

As before stated, the evidence is convincing that defendant was affected with syphilis at and before the’ time of the marriage.

But the mere existence of that foul disease in one of the parties to a marriage contract, although it tended to render, and upon discovery would render, impracticable the purpose of marriage, would not, in my judgment, justify a decree annulling the marriage. In respect to incurable impotency existing at the time of marriage, this court held that such disability rendered the marriage voidable but not void, and it was declared that, outside the statutory jurisdiction, this court would not annul a marriage contract except when it was void. Anon, 9 C. E. Gr. 19. Whether since the decision of the court of errors in Carris v. Carris, ubi supra; the doctrine could be maintained, may be perhaps doubted, and need never be decided, since the legislature has now made such impotency cause for divorce.

It must therefore, in my judgment, appear by appropriate and sufficient proof that the defendant either represented to complainant that he was free from syphilis, or that he concealed the fact that he had syphilis when he was in duty bound to disclose it.

The caso made by the bill and claimed to be supported by proof, rests upon an express representation by defendant that he was not affected by that disease. The complainant’s testimony expressly asserts that such a representation was made. In this respect, I think there is support and corroboration of complainant in the deposition of the friend of complainant with whom defendant sought an immediate interview, after being told of the information complainant had received from her. While it does not appear that the disease was named by any one present at the interview, defendant evidently knew that he was charged with being diseased, and with a disease which would justify and require the breaking of the engagement of marriage. His denial was aimed at such a disease, and was couched in such terms as would not naturally have been used for an accusation of a less dangerous disease.

But proof to justify a decree in this case must, in my judgment, show more than a mere representation of the truth of a fact which was actually false. Mr. Pomeroy points out that, while whatever is fraudulent at law will be so also in equity, there are frauds of which equity takes cognizance although the law would not, such as for example, constructive frauds, and what he calls actual frauds, although they are without any feature or incident of moral culpability. 2 Pom. Eq. Jur. § 385 at seq. The distinction was recognized in the opinion of the present chief-justice. Cowley v. Smyth, 17 Vr. 380.

In the case in hand, equity ought not to act upon any mere construction of fraud from conduct. To move its hand to obliterate this marriage contract for defendant’s representation, it must appear that the defendant possessed a guilty knowledge of its untruth, or that, being called upon to state the truth as to a fact, under circumstances which cast upon him a duty to do so, defendant stated that to be true which in fact was false and known to him to be false. He was called on to state the truth about a fact in respect to which he might be supposed to have knowledge. The demand upon him came from one who was engaged to marry him, and its obvious purpose was to ascertain the truth as to a fact important for her to know, for if true, it would have justified her in receding from her engagement. The circumstances cast upon him a duty. If his response to her demand was knowingly false, it was a gross fraud. As I find his denial to have been false and knowingly false, and that it operated to produce a marriage under circumstances which affected an essential of the marriage relation, I conclude that the complainant is entitled to relief and to a decree annulling her marriage with defendant.