author: Grieein, Y. C.

text:
    Miriam W. Belknap, executrix, &c., v. Edward Tillotson, executor, &c., of Irene Belknap, deceased, et al.
    [Submitted July 21st, 1913.
    Decided October 13th, 1913.]
    1. A testator having made his will containing a pecuniary legacy to a niece, afterwards being unwilling that the same should become her absolute property, but desiring that she should have the income derived therefrom for life, and that after her death the same should become the property of other three named relatives designated by him, advised her that if she did not agree to make a will bequeathing such pecuniary legacy to said other three named relatives, he would add a codicil to his will or make a codicil thereto cutting her off, and she promised to make her will bequeathing said legacy accordingly, which so satisfied him that he allowed his will to remain unaltered.—Seld, that said other three named relatives, upon the death of the testator’s niece became entitled to said legacy (she having died five days after his death), which, if it came to the hands of her executor—she having failed to make her will in accordance with her promise—would be held by him under a trust arising eco maleficio, "and her executor would be bound to pay the same to the other three named beneficiaries.
    2. The contract is to be governed by the laws of this state where the testator resided, and not by the laws of Massachusetts where the niece made her promise.
    3. At the time of the signing of the promise the will of the niece, duly executed, was in existence and has since been admitted to probate, which disappointed the testator’s wish and violated her solemn promise. The permitting of such a will to exist was a fraud on the testator and on the three beneficiaries named in the promise. The promise of the niece having been the inducement whiih led the testator to leave his will unaltered, and her will having been in existence which violated her promise, her failure to alter it so as to comply with the promise, made the inducement fraudulent, and it is on this ground that equity assumes jurisdiction for preventing the statute of wills from becoming a means of fraud.

      Mr. Henry B. Twombly, for Amelia B. Sturges, Miriam W. Belknap and Irving Belknap, deceased.

      Mr. Charles L. Cole, for Edward Tillotson, individually, and as executor of Irene Belknap, deceased.
   Grieein, Y. C.

Tbe complainant having taken a decree that the defendants interplead, the question presented for determination is, which of the two contending sides is entitled to the fund deposited in court ?

The pertinent facts are as follows: Willis H. Belknap, a resident of New Jersey, died on or about September 3d, 1911, leaving his last will and testament dated January 28th, 1909, which contained the following clause:

“Fifth. I hereby bequeath to my niece, Irene Belknap, of Cambridge, Massachusetts, the sum of six thousand dollars.”

Afterwards, on the 2d day of August, 1909j the testator made a codicil, the sole change effected thereby being to substitute Ms wife, Miriam W. Belknap, as executrix for the executors naméd in bis will. The will and codicil were admitted to probate in this state. It appears that shortly after the making of the codicil the mind of the testator turned to this bequest to his niece, Irene, and on or about September 1st, 1909, he wrote, in his own handwriting, a memorandum, as follows:

“Your uncle Willis has asked me to say that in his last will that he left you $6,000—and it has recently occurred to him that you might possibly will it to someone that he is not at all interested in; to do this would be a great disappoint to him and he suggest at the proper time that you will it, equally to your aunt Amelia, and your aunt Miriam, and your brother Irving, or their survivors, or all to the survivor, should but one be living- at the time of your death. I mention Irving because you seem fond of him, and his opportunities for success in life hardly equal to his brothers.”

This memorandum he gave to his sister, Amelia B. Sturges, with the request that ¿he copy the same and send it to Irene. Accordingly, on September 1st, 1909, Amelia wrote to Irene as follows:

"Mi Dear Irene—Your uncle Willis has asked me to say that in his last will he left you $6,000 and it has recently occurred to him that you might possibly will it to someone that he is not at all interested in. To do this would be a great disappointment to him and he suggests at the proper time that you will it equally to your aunt Amelia and your aunt Miriam and your brother Irving or their survivors or to the survivor, should but one be living at the time of your death. I mention Irving because you seem fond of him and his opportunities for success in life hardly equal to his brothers.
“September 1st, 1909. Amelia B. Sturges.’

Irene replied by letter, dated September 2d, 1909, in which, after addressing her as “Dear Aunt Amelia,” she said:

“I had a letter full under way to you yesterday, but on receipt of your letter written Sept. 1st I begin an entire new letter instead. I am so glad dear Uncle seems stronger, but sorry he does not gain as rapidly as I could wish. Please give him my love as always and say his wishes in regard to the money which he has so very, very kindly willed to me, and which I thank him many times over for, shall be respected. I promise him, so it will be all right * * *”

She then discusses a number of personal matters which have no bearing on the ease. This last letter was received by Mrs. Sturges in Summit, New Jersey, on September 3d, 1909, and the contents made known to the testator.

On September 5th, 1909, Irene wrote the testator, addressing him as “Dear Uncle Willis,” in which, after referring to his health, she says :

“You are very kind to remember me in your will, and I am very grateful to you and thank you many times for so doing. Your wishes-by me shall be respected as to the final disposal of-said $6,000 (principal) at the time of my death. Perhaps it has not occurred to you that in case of a long & serious illness of months or say several years that is .liable to come to me in the future, perhaps a small sum of this amount should remain unpledged by me, as what would I do under so trying a circumstance? I make the suggestion to you—what would be your final wish in regard to it? Perhaps you and aunt Amelia had not though of this, but I am as liable as anyone to succumb to serious illness some day.”
“My love to aunt Amelia, Miriam and your own dear self. I await further instructions from you as to about legally signing a paper in regard to the $6,000. * * *
“Lovingly as always, . Irene.”

This letter was received by the testator on September 6th,. 1909, in Summit, New Jersey, and by his request Amelia wrote a letter in reply which, in substance, was to the effect that the testator thought that all expenditures because of sickness or otherwise to be paid by Irene ought to be paid by her from her own property, so that she might always have the income from the $6,000 to live on, and so that the principal amount might be preserved. The executor of Irene found a long series of more than twenty letters from Amelia to Irene, some dated prior to September 6th, 1909, and some subsequent thereto, but found no such letter from Amelia as the one last above referred to.

After the date of the last-mentioned letter,' Irene Belknap wrote in her own handwriting the following document:

“I, Irene Belknap, do promise to will to 3 relatives, Amelia B. Sturges —Miriam W. Belknap—Irving- O. Belknap—said principal of $6,000 left in last will of Willis H. Belknap to Irene Belknap, at the time of death of Irene Belknap.
“September 9th, 1909. For Mr. W. H. Belknap,
“Swampscott, Massachusetts. from Irene Belknap.”

This she signed at Swampscott, Massachusetts, and mailed to Willis H. Belknap, in Summit, New Jersey. Thereafter William H. Belknap made no change in his will.

The foregoing facts are taken from a stipulation entered into by the parties in which is set forth a copy of the memorandum, which Willis IT. Belknap wrote in his own handwriting and handed to Amelia to copy and send to Irene, a copy of the •letter of September 1st, 1909, written by Amelia to Irene; a copy of the letter of September 5th, 1909, written by Irene to 'Willis IT. Belknap; and a copy of the document signed by Irene, dated September 9th, 1.909, and mailed to Willis H. Belknap.

In addition to the stipulation there was taken the testimony of Amelia B. Sturges, a sister of testator, who was eighty-four years of age, and of Miriam W. Belknap, the widow of testator, and Ms executrix. Mrs. Sturges says that she remembered the occasion on September 1st, 1909, when Mr. Belknap gave her the memorandum in writing which he asked her to copy and to send to Irene, and she did so; that she remembers the receipt by Mr. Belknap of the letter of September 5th, 1909, from Irene, and that Mr. Belknap, Mrs. Belknap and herself had a discussion over and with reference to it; that

“Mr. Belknap said that in case of sickness Irene had her own money to use, and that unless she followed his wishes in regard to the $6,000 he would make a codicil to his will and cut her off entirely from his will.”

He asked her to write this to Irene, but she says she c-annot 'exactly remember whether she did or not, but her best recollecticn is that she did; she is almost positive that she did, but she did not keep a cop}' of the letter. On cross-examination she says she did not remember that anything more was said at that conversation; that she could not swear that she wrote Irene all that the testator said to her, but she did write a letter while he was standing by her, its exact contents she could not state. She sent the letter by mail, and knew that Irene had received it, for she answered it. She further said that the portion of the letter to Irene relative to her sickness was discussed, and it was said that she had enough money of her own, and she could use the interest on the $6,000, and that she could not use the $6,000; they thought that she could not spend all of her own money; they did not discuss the question of what would happen after she spent all of her own money.

On redirect she says:

“I am pretty positive I did write the letter to Irene in which I wrote what Mr. Belknap said to me about the $6,000; I haven’t a doubt of it but couldn’t swear to it; that is my best recollection.”

Miriam W. Belknap also testified that she remembered the occasion on September 1st, 1909, when her husband gave the,memorandum to Mrs. Sturges and asked her to write it to Irene; that she was present at the conversation; that she remembers the receipt by Mr. Belknap of the letter of September 5th, 1909, from Irene, and the discussion over it between Mr. Belknap, Mrs. Sturges and herself. She says :

“Mr. Belknap said to Mrs. Sturgess ‘Tell Irene she can use her money in case of sickness, and that if she doesn’t comply with my request I shall put a codicil to my will,’ to what effect he did not say.”

She says that Mrs. Sturges was at her desk writing a letter to Irene, and she was sitting in the room when Mr. Belknap came in and stood by her and told her to write the above in her letter to Irene; and she says:

“I recall that a letter was afterwards received in which a sentence is included, in substance, ‘Tell Uncle Willis that everything will be all right and I will do as he wishes me to do.’ ”

This testimony was taken de bene esse by consent, subject to all legal objections, and certain objections were made by counsel for Edward Tillotson as executor. This testimony adds to the stipulation as new matter only the statement which Mrs. Sturges made as to what transpired after the letter of September 5th was received, as follows:

“Mr. Belknap said that in case of sickness Irene had her own money to-use and that unless she followed his wishes in regard to the $6,000 he would make a codicil to his will and cut her off entirely from his will.”

And the statement of Mrs. Belknap, as follows:

“Mr. Belknap said to Mrs. Sturges ‘Tell Irene she can use her own money in case of sickness and that if she does not comply with my request, I shall put a codicil to my will,’ to what effect he did not say.”

A letter containing substantially this matter was written by Amelia to Irene, Mr. Belknap then and there dictating while she wrote, and the same was mailed to Irene.

The portion of the testimony above referred to is admissible to show what was written by Amelia to Irene by direction of the testator, the same having been received by her as evidenced by her subsequent letter that was lost, and the promise of September 9th. Williams v. Vreeland, 32 N. J. Eq. (5 Stew.) 737.

The objections to the other testimony as to conversations between the testator, Mrs. Belknap and Mrs. Sturges are sustained, because it does not appear that the subject-matter was made known to Irene.

The testator died on the 3d of September, 1911, at Summit, county of Union, State of New Jersey, without having changed his will or' codicil.

Irene Belknap died in or near Salem, in the State of Massachusetts, on the 8th .day of September, 1911, five days after the death of Mr. Belknap, at the age of forty-seven years, leaving her last will and testament dated the 13th day of October, 1908, which was admitted to probate in Massachusetts, and the defendant Edward Tillotson was appointed executor. In and by her will she gave to her friend, said Edward Tillotson, $9,000 in cash, considerable jewelry, and all the residue of her estate, ex-eepting certain bequests, among which are bequests to Amelia Belknap Sturges. Willis H. Belknap and Irving C. Belknap, of $500 each, and to Miriam W. Belknap her five-stone diamond ring. This will was made prior to the wiil and codicil of Willis H. Belknap. It does not appear that she executed any will in conformity with the wishes expressed by Willis H. Belknap, or as contained in her promise of September 9th, 1909, or the several letters above mentioned. Hence this suit.

Counsel for Mr. Tillotson, individually, and as executor, insists that the money should be paid to him for the following reasons—firstJ there was no intention to make a contract; second, even if the parties intended to make a. binding contract, they have not done so because there was no consideration; third, because the case is governed by the Massachusetts law, and the memorandum of September 9th is not sufficient under the Massachusetts statute of frauds.

The situation in this case is as follows: The testator having made his will containing a legacy of $6,000 to Irene Belknap, afterwards being unwilling that the same should become her absolute property, but desiring that she should have the income derived therefrom for life and after her death the same should become the property of the three-named relatives, advised her that if she did not agree to make a will bequeatning this $6,000 to said relatives, he would add a codicil to his will or make a codicil to his will cutting her off. Accordingly, in compliance with his desire, she executed the promise of September 9th, 1909, which so satisfied him that he allowed his will to remain unaltered.

I do not regard the testimony of Mrs. Belknap or Mrs. Sturges as to the conversation leading to the writing of the letter of September 6th, and the statements of its contents, as particularly essential to the conclusion reached. It may be treated as cumulative. The other communications sent to Irene, with her replies and the promise of September 9th, sufficiently comply with the requirements of the decisions to constitute a sufficient binding promise on the faith of which the testator did not change his will. That a letter in reply to Irene’s of the fifth to the testator was written on September 6th, containing substantially what was testified to, omitting the threat to execute a codicil, is admitted by the stipulation, and thereafter the promise of September 9th was written and mailed to testator, apparent^ in compliance with the desire or demand of the testator contained in his letter of September 6th. It is perfectly apparent that the parties had a complete understanding, that Irene well knew the views of the testator, and wrote her promise accordingly. It was not necessary for the testator to make a threat; he was making a gift, and the very close relationship of the parties rendered a mere suggestion of the desire of the testator, when acquiesced in, sufficiently binding.

Mr. Tillotson, however, argues that the testator merely suggested that she make her will in the manner indicated, but did not intend to bind her to do so. This theory seems to be negatived by the course of the correspondence, beginning with September 1st, letters were sent and answered promptly until the 9th of September, when the promise of Irene was mailed, which terminated all further communication between the parties on the subject.

On the foregoing case stated, Mrs. Amelia Belknap, Amelia B. Sturges and Irving Belknap, upon the death of Irene Belknap, became entitled to said legacy which, if it had come to the hands of her executor-—she having failed to make her will in accordance with her promise—would be held by him under a trust arising ex maleficio, and he would be bound to pay the same to the three beneficiaries above named. Heinisch v. Pennington, 73 N. J. Eq. (3 Buch.) 456; S. C. on appeal, 75 N. J. Eq. (5 Buch.) 606; Williams v. Vreeland, 32 N. J. Eq. (5 Stew.) 135; S. C. on appeal, 32 N. J. Eq. (5 Stew.) 734; Yearance v. Powell, 56 N. J. Eq. (10 Dick.) 577; Duvale v. Duvale, 56 N. J. Eq. (11 Dick.) 375; Carver v. Todd, 48 N. J. Eq. (3 Dick.) 102.

In my view, the facts and the law applicable thereto above stated, fully answer the first and second points urged by Mr. Tillotson.

As to his third point, viz., that the contract is governed by the laws of Massachusetts, under which laws the memorandum of September 9th is not sufficient under the statute of frauds:

I have not considered it necessary to pass upon' the status of the ease under the Massachusetts laws, because of the conclusion reached that the case must be governed by the law of this state. The determination of the testator to permit his will to stand was not reached uiitil he received in this state the letters and written promise constituting' the agreement to comply with his wish, which amounted to an inducement not to alter his will. Assuming for the sake of argument that there were mutual contractual relations, the presumption arises that the parties intended to make a binding contract and neither meant to mislead the other. Mayer v. Roche, 77 N. J. Law (48 Vr.) 681, 684.

Therefore, if Irene wrote her promise in Massachusetts, in a manner which rendered it void under the laws of that commonwealth, and the contract was to be governed by such laws, she at least practiced a constructive fraud on the testator which would not entitle her executor to consideration in this court. This question, however, is not involved in this case.

The testator did not promise that he would not change his will in the item that was in her favor in consideration of her promise to make her will in accordance with the promise. The testator by his will was making a gift to Irene. He had the right to change, alter or revoke it at any time. He did not bind Irene to give up any-part of her estate. What he did was simply to say: “I have made my will, giving to you a legacy of $6,000. I want you to agree that if you receive this legacy you will, upon your death, leave a will which will give this $6,000 to my wife, sister and your brother. If you do not so promise, I will alter my will.” And she accordingly signed a promise, agreeing to will to ¡die parties named “said $6,000 left in the last will of Willis H. Belknap to Irene Belknap at the time of the death of Irene Belknap.”

It is perfectly clear that if the testator had altered his will, eliminating this legacy, the estate of Irene would incur no liability on her promise.

At the time of the signing of the promise, the will of Irene, duly executed, was in existence, and has since been admitted to probate, which disappointed the wish of the testator and violated her solemn promise. The permitting of such will to exist was a fraud on the testator and on the beneficiaries named in the promise. The promise of Irene having been the inducement which led the testator .to leave his will unaltered, and her will being then in existence which violated her promise, her failure to alter the saíne so as to comply with the promise, made the inducement fraudulent, and it is on this ground that equity assumes jurisdiction for the purpose of preventing the statute of wills from becoming a means of fraud. The remedy is not by way of specific performance of a contract, and a personal decree for performance and relief based on such grounds would seem to clearly disregard the statutes both of fraud and wills. Vice Chancellor Emery in Heinisch v. Pennington, supra. The fraudulent inducement having become effective only upon the receipt by the testator in New Jersey of the promise of September 9th, the case is governed clearly by the New Jersey law.

The failure to revoke this will and make another which would satisfy the terms of her promise was probably due to her procrastination. A willful intent to violate her promise can hardly be imputed to her. The very close friendly relations existing between the parties and their ties by blood and marriage would seem to negative such a thought.

Nevertheless, her breach of the trust and confidence reposed in her, however unintentional, cannot be permitted to augment her estale to the detriment of those for whose benefit the promise was exacted.

I am, therefore, of the opinion that this fund, in equity, is the property of Mrs. Belknap, Mrs. Sturges and Irving C. Belknap, and will advise a decree that the fund be paid accordingly.


source: Caselaw Access Project

author: Garrison, V. C.

license: Public Domain

text:
    Robert S. Hudspeth, trustee, et al., v. Henry M. Denton et al.
    [Decided May 17th, 1912.]
    In the month of April, 1900, defendant H. was owner of one hundred shares of stock of complainant banking company, and defendant D. was owner of property covered by the mortgage hereinafter mentioned, and by an agreement between the parties then made, H. in form sold to D. said shares, and received from D. two promissory notes for $12,000 each with the understanding that, as collateral security for the payment of the indebtedness evidenced by said notes, D. would, amongst other things, mortgage said property to I-I., and subsequently, and in the month of July, 1900, by an agreement between D. and H. a note for $24,000 made by defendant S. to H. was given to him in place of said two $12,000 notes, and subsequently, and in pursuance of the original agreement between D. and H., D. and wife made to H. a mortgage dated September 1st, 1900, securing the payment of a bond of like date for $12,000 payable on demand, the obligee and mortgagee being ,H- The note of S. was used bj\H- at the complainant bank for Il.’s benefit and during the time this original indebtedness existed, and so long as it was continued, by successive renewals of notes subsequently given the bank, was entitled to recover on said mortgage as collateral security the whole, or such part thereof, as still remained unpaid to it, of the original indebtedness. Subsequently, and beginning in the month of August, 1901, D. availed himself of said stock and used the same as collateral security for moneys advanced to him by various banking institutions, and H. subsequently paid off said notes thus made by D. to the banking institutions where said stock was collateral, and regained possession of said collateral, and H. subsequently, and in the year 1905 by arrangement between himself and complainant bank secured the return to himself of the S. notes to which said mortgage was collateral, and thereafter repledged the same to the said bank for whom the complainant is trustee in this behalf, and said bank is entitled to recover in the person of the trustee, upon said mortgage whatever sum of money, if any, there may be found due from D. to H., or'now due to said bank on account of moneys received by D. upon promissory notes made by him and discounted by banking institutions with said stock as collateral and which note or notes have not been paid off by H. with his own funds with the purpose of regaining possession of the stock, and for which sums so found to be due H.. the said H. has not been repaid by D. The transaction between H. and D. in April, 1900, was not a sale of the stock then owned by H. to D., but was a mutual exchange of securities for the purpose of enabling each to borrow upon the securities of the other, thus transferring from one to the other, and results in finding indebtedness from one to the other to such an extent only as either of the parties availed himself of the securities of the other, to borrow money upon, without repaying the same or restoring the securities unencumbered. The question whether anything is due upon this mortgage and collectible by the complainant depends upon whether or not an accounting shall disclose any sum realized by D. by the use of H.’s stock, which sum was not repaid by D. to H., and which sum H. had to pay to the person from whom D. borrowed, so as to regain his (H.’s) stock. In a suit by H. as trustee, and the said bank for which he is alleged to be trustee, against D. and wife, S. and H., to foreclose said mortgage, the complainant is entitled to have the benefit of the mortgage in suit to the extent, if any, that it may be found, upon an accounting, that D. owed to H. money realized by him upon the stock of the complainant bank owned by the said H., and transferred and loaned by him to the said D., and that for the purpose of ascertaining the facts with respect thereto this matter should be referred to one of the masters of this court to take the said account and report the same.
    On final hearing on pleadings and proofs.

      Mr. Merritt Lane, for the complainants.

      Messrs. Vredenburgh, Wall & Carey, for the defendants.
   Garrison, V. C.

This is an action by Robert S. Hudspeth, trustee, and the Second National Bank of Jersey City, for which he is alleged to be trustee, against Henry Ml Denton and his wife, Robert L. Shaw and William Hogencamp. It is a suit to foreclose a mortgage upon lands at Lakewood, New Jersey. The bond and mortgage in suit were executed by Denton (and wife) on the 1st day of September, 1900, the bond being payable on demand and being for $12,000, the obligee and mortgagee being William Hogencamp.

Since it is conceded that this is not the ordinary ease of an advance of money by the mortgagee to the mortgagor, it became necessary for the complainants to allege and prove facts which entitled them to enforce the payment of the bond and mortgage in suit.

Very briefly stated, they allege that the bond and mortgage in suit were pledged with the Second National Bank to secure the payment to it of an indebtedness of Robert L. Shaw, and that such indebtedness has never been paid, and that, therefore, they, the complainants, are entitled to enforce this collateral security to that debt.

Unfortunately, the circumstances are such that the court cannot make'a concise finding of fact, but must, at some length, state the reasons which lead to the conclusions reached.

Henry M. Denton, one of the defendants, prior to the year 1900 and thereafter, was engaged in building operations in the city of New York. These operations were upon a much larger scale than the amount of capital possessed by him warranted. He interested William Hogencamp, who was, and for many years prior to the year 1900, had been president of the Second National Bank of Jersey City. All the proofs in the case concerning the bank’s method of doing business lead to the conclusion that Hogencamp practically did as he pleased in managing the bank. From the year 1900, down through all of the period that is material in this ease, the dealings and relationships between Hogencamp, Denton and the bank are so numerous, intricate and confused that it is impossible for the parties themselves (and, of course, more so for the court or any third person) to define and explain them.

Beginning with the year 1900, Denton began receiving large sums of money through Hogencamp. Denton knew the bank in those transactions only inferentially, or secondarily. He dealt solely with Hogencamp; and while it is undoubtedly the fact that in most instances Denton’s notes were discounted by or loaned upon by the bank, in others money was furnished by Hogencamp’s borrowing from the bank and advancing the money to Denton.

Just what interest Hogencamp had at the commencement of the relationships between him and Denton in those large real estate operations of Denton it is impossible to determine. After awhile all proceeds thereof went to Hogencamp, Denton retaining therefrom only $25 a week for his personal living expenses.

On the 2d of April, 1900, Denton, by a payment of something over fifty-seven thousand dollars, discharged all of his indebtedness to the Second National Bank then due. Mr. Hogencamp at this time had in his physical possession the deed by which Denton had acquired title to the Lakewood property (subsequently mortgaged), and also a mortgage made by one Hanford to Denton for $12,000, secured apon the “Rink Stable Property” in Jersey City. This last-named mortgage was upon an undivided one-half interest in said property which Hanford had owned.

It hardly seems possible that these papers could have been in Hogencamp’s possession for any other purpose than safekeeping, although the parties may have thought that some equitable rights could be created in Hogencamp by his having physical possession of these papers. I should not refer to the matter were it not that in the testimony these papers were often adverted to.

On the 23d day of April, 1900, Denton gave to William •Hogencamp two promissory notes, each for $12,000, at three months each, drawn by Denton either to his own order or to Hogencamp’s order. The testimony of the only two witnesses who are shown to have any knowledge concerning this transaction is absolutely contradictory each of the other. Hogencamp testifies that Denton was desirous of becoming a stockholder in the Second National Bank; that Hogencamp had large amounts of the stock of that bank; that upon the date in question he sold one hundred shares of his stock at a valuation of $240 per share to Denton for the gross sum of $24,000, and that Denton thereupon and therefor gave to him, Hogencamp, in payment for the stock his two promissory notes of $12,000 each.

Hogencamp further testifies that upon that date he physically handed over to Denton the one hundred shares cf stock in question, and that Denton physically handed the same back to Hogencamp, to be held by him as collateral for the payment of the notes just mentioned. He further testifies that Denton then agreed to assign to him, Hogencamp, the Hanford mortgage upon the Rink Stable property in Jersey City, and also to make a mortgage upon the Lakewood property to Hogencamp, which two securities could then be held by Hogencamp as further collateral for the payment of the notes just mentioned.

Denton testifies that upon the date in question Hogencamp told him that he, Hogencamp, was unable to use the stock which he owned in the Second National Bank as collateral for loans obtained from that bank, and that if Denton would allow Hogeneamp. to apparently sell to him one hundred 'shares of the stock of the Second National Bank for the apparent consideration of $24,000, and should give his notes to Hogencamp for that sum, and would give to Hogencamp as security for the payment of the notes the Hanford mortgage upon his Lakewood property, Hogencamp would be able thereby to obtain money upon all of these securities—that is, through Denton’s using the stock as collateral to Denton’s notes elsewhere, money could be obtained therefrom, while Hogencamp could use Denton’s notes with the mortgages as security in the Second National Bank, and in this way money could be obtained on loans on all of these securities as collateral.

Denton absolutely denies that any stock of the bank was then shown him, let alone passed to him and passed back by him to Hogencamp.

Since it will be necessary, in the more or less chronological statement which I purpose making, to refer, in their proper order, to other facts bearing upon this matter, I shall not dilate thereon at this point.

On the same day on which Hogencamp procured from Denton the two $12,000 promissory notes above referred to, Denton, through Hogencamp, secured $16,000 from the Second National Bank upon a note. On the 23d day of July, 1900 (which it will be observed is just three months after the date of the Den-ton notes), Bobert L. Shaw, who is the brother-in-law of Den-ton, and who previously had been engaged in the livery stable business with Denton, and who was a depositor in the Second National Bank, gave to William Hogencamp his note, payable on demand, for the sum of $24,000. It is conceded by everyone in the case that Shaw obtained no money whatever upon this note, and no benefit whatever from having given it, and that it was solely, to the knowledge of both Hogencamp and Denton, an accommodation by Shaw.

Hogencamp says that at the time in question Denton’s affairs with the Second National Bank were in such condition that he could not use Denton’s two $12,000 notes to borrow money on from that bank, and that therefore he requested Denton to obtain, in substitution of his two $12,000 notes, a note from Shaw for $24,000 upon which Hogencamp would be able to borrow. This is not seriously disputed by Denton. Shaw does not appear at all, and Denton does not have any clear recollection of what happened at the time the Shaw note of $24,000 was given to Hogencamp, but, as before stated, it is unquestioned that Hogencamp got it from Shaw without consideration and solely because of the relations between Denton and Hogencamp, and to be used for their benefit or the benefit of one of them.

On the 23d day of July, 1900, Hogencamp procured the Second National Bank to loan on the Shaw $24,000 note the sum of $24,000. He says that upon that date he, Hogencamp, was responsible to the bank upon notes of one Littell for the sum of $25,056.25, and that with the money procured upon the Shaw note, and $1,056.25 of other money which he furnished, he paid off to the bank the Littell notes.

Hogencamp further says that at the tiine of procuring the loan from the bank upon the Shaw note he gave to the bank as collateral thereto the one hundred shares of stock of the Second National Bank which he says he had sold to Denton on the 23d of April, 1900, and which he says Denton left with him as collateral for the payment of the purchase price to him. This alleged transfer of collateral was entirely a mental operation, there not being any physical thing done with respect thereto, the stock remaining as before in the possession of Hogencamp.

He also says that the mortgage on Denton’s Lakewood property and the Hanford mortgage, which was owned by Denton, were also to be held by him as collateral to the Shaw note. It will be recalled that the mortgage on the Lakewood property was not yet in existence, and that the Hanford mortgage, which ran to Denton, had not yet been assigned to Hogencamp.

On the 1st of September, 1900, Denton made to Hogencamp the mortgage on the Lakewood property for $12,000. (This is the mortgage in suit.) And also he made a written assignment upon that date to Hogencamp of the Hanford mortgage.

On the 12th day of August, 1901, Hogencamp transferred on the books of the Second National Bank three certificates of stock to Henry M. Denton, 347-A for forty shares; 348-A for fifty shares, and 349-A for ten shares.

Just before this time Denton was being very severely pressed by a New York lawyer named McKelvey, who represented the New York and Batavia Wood Working Company, a judgment creditor in New York of Denton’s. Application was made to Hogencamp to advance to Denton the two thousand odd dollars which McKelvey then demanded as consideration for refraining from pressing Denton upon the balance of the judgment at that time. Hogencamp was not in a position to respond with cash at that lime but offered to loan Denton fifty shares of stock in the Second National Bank which Denton could’ use to raise money upon to satisfy McKelvey.

On the 15th day of August, 1901, Hogencamp gave to Denton and his New York lawyer O’Callaghan certificate No. 348-A for fifty shares. It will be observed that this is one of the certificates which were issued to Denton under the transfer from Hogencamp on the 12th of August, 1901. Denton took the certificate for fifty shares and his note for $6,000 to McKelvey, who had the same discounted at the Chase National Bank, and retained the amount then agreed to be paid to him, namely, two thousand and odd dollars, gave to Denton the balance, some three thousand and odd dollars, which was brought back by Denton to Hogencamp, and was by Hogencamp deposited in an account in the Second National Bank which he carried under the title of William Hogencamp, trustee.

At the same time Hogencamp demanded and received from Denton a mortgage for $7,500 upon a property which Denton owned in New York, which mortgage the testimony shows was by Hogencamp subsequently assigned to some third person, and presumably he received a consideration equivalent to the amount of the mortgage. This mortgage the testimony shows was given to him to secure him for having loaned to Denton the fifty shares of stock of the Second National Bank.

On the 20th day of August, 1901. Hogencamp wrote a letter upon the letter-head of the Second National Bank, addressed to himself' as president, requesting him to deliver to Henry M. Denton the one hundred shares of stock of the Second National Bank, and cause the same to be signed by Robert L. Shaw. On the 22d day of August, 1901, Hogencamp caused Denton’s mortgage on the Lakewood property (the mortgage in suit) and the assignment of the Hanford mortgage to him to be recorded.

On the 23d day of August, 1901, Hogencamp gave to Denton the two certificates heretofore adverted to, one for forty and one for ten shares, of stock of the Second National Bank, which Den-ton then took to the Commercial Trust Company in Jersey City and pledged as collateral to Denton’s note for $6,000, which $6,-000 Denton brought back to Hogencamp who deposited it in the account heretofore referred to entitled, “William Hogencamp, trustee.”

On the 16th day of Novembei*, 1901, Hogencamp wrote two letters, one of which he signed himself and the other of which he caused Mr. Hashing, the cashier of the Second National Bank, to sign. Just before this time Denton’s note in the Chase National Bank of New York, which he had given to McKelvey, and with which the fifty shares of stock which Hogencamp gave to Denton on the 15th day of August, 1901, were pledged as collateral, became due and was unpaid, and McKelvey had taken the uote and collateral out of the bank. McKelvey was threatening to hold the stock to satisfy not only the $6,000 represented by the note with which it had been pledged as collateral, but also for a balance due upon the judgment against Denton which his client, the wood working company, held.

At the date before mentioned, November 16th, 1901, Hogeneamp wrote the letters before mentioned, one of which was to Honeck, an officer of the wood working company, and in that letter Hogencamp informed him that he had transferred fifty shares to Denton on August 12th, 1901, by certificate A-348, and that before that time Denton was not a stockholder in the bank. In the other letter, which was addressed to McKelvey, the attorney for the wood working company, Hogencamp tells him that he had loaned, on August 12th, 1901, fifty shares to Denton to borrow on, and that now Hogencamp has to redeem it. He also says in that letter that Denton never owned the stock, that it was “my” (Hogencanrp’s) “property.”

The subsequent happenings, with respect to this matter, were these: On May 1st, 1902, Denton drew his check on the Second National Bank to John J. McKelvey for $7,255, which was the amount necessary to satisfy McKelvey for the note, interest, &c., and to release the fifty shares of stock which he held; and on the same date Denton drew his cheek to the Commercial Trust Company for $6,067, which was the amount necessary to satisfy that institution for the note of Denton’s that it held, for which hei also held fifty shares of stock as collateral, and Denton thereupon received from each of these parties the respective fifty shares which, on the next day, May 2d, 1902, he took to the Hudson Trust Company in Hoboken and pledged to it for a loan of $13,500 which he thereupon procured upon his note, and this money was brought back and deposited in his account to make good the two checks just above mentioned, one to the Commercial Trust Company and one to McKelvey.

On the 24th day of July, 1902, Hogencamp procured the Second National Bank to loan $25,000 upon two notes of Eóbert L. Shaw, made to the order of himself and by him endorsed, one for $12,000, dated June 30th, 1902, and one for $13,000, dated July 23d, or 24th, 1902. One thousand dollars of this was a personal matter of Shaw’s and is not in any way involved in this suit. Shaw at this time gave a mortgage to Hogencamp upon the Eing Stable property before mentioned. He and Hanford had owned this property, and Hanford had mortgaged his undivided one-half to Denton, who had assigned the mortgage on September 1st, 1901, to Hogencamp. Shaw subsequently purchased the whole property, and this last-named mortgage of his for $13,000 to Hogencamp was upon the whole property.

This mortgage was the subject-matter of the suit of Leonard Richards v. Robert L. Shaw, which is so often referred to in the trial of the suit at bar.

By checks which Hogencamp caused Shaw to sign $24,000 of the money advanced by the bank on the $12,000 and $13,0Q0 Shaw notes aforesaid, was paid back to the bank to take up the $24,000 note of Shaw theretofore loaned on by the bank, dated July 23d, 1900. No explanation is made by anyone as to why these two Shaw notes bore different dates, the $12,000 one being dated June 30th, 1902, and the $13,000' one being dated July 23d, or 24th, 1902.

In the latter part of the year 1904 the bank examiners of the United States government were busied with the affairs of the Second National Bank. They objected to a large number of loans which appeared in the demand loan account, and which, for one reason or another, Hogencamp, the president of the bank, was charged with the responsibility for. Upon the demand of the bank examiners many of these items were taken out of the demand loan account and were carried to an account called “Suspended Debt,” for which account Hogencamp was by the bank, in one way or another, held responsible. I cannot determine from the testimony whether the claim was that he was legally liable for all of these various items, or whether, by reason of his conduct as president of the bank, he was charged with responsibility concerning them, and in that way was looked to as responsible. However, this is really immaterial, because he seems to have assumed the responsibility concerning them.

On the 7th day of September, 1905, Hogencamp sold for something over $125,000 all of the stock which he held in the Second National Bank, and incidentally he sold the one hundred shares which he says belonged to Denton. On that date, September 7th, 1905, he paid to the credit of this suspended debt account a large sum of money, something over $38,000. He testifies that this was for other items than the Shaw indebtedness, and that after this payment he still was responsible to the suspended debt account for $35,000, which he sa3rs was made up of the two Shaw notes, aggregating $25,000 and $10,000, remaining due upon an indebtedness in that account of Pratt & Wellman.

With respect to the sale on the 7th of September, 1905, of the stock which Hogencamp testifies that he had sold to Denton, Hogencamp sa3'B that he sold this stock for $19,000: That from this sum (the $19,000) he deducted $10,000 which he had contributed to pay Denton’s note at the Hudson Trust Company at .the time that Denton’s $13,000 note there was taken up, and some other items due him by Denton, leaving a balance due Denton of $7,652.80, which he credited upon a demand note dated July 19th, 1901, made,bv Denton to Hogencamp for $13,-000, with interest. Hogencamp admits that he did not communicate with Denton concerning the sale or the disposition of the proceeds, and that Denton had no knowledge concerning them. Hogencamp claims the right to thus deal with the stock because he asserts that when the loan was paid off at the Hudson Trust Company, and the one hundred shares was received, by Denton, he, Hogencamp, liad contributed the $10,000 just referred to to be used as part of that payment, and was handed the stock by Denton, to be held by him as security for the repayment thereof.

The bank continued to press Hogencamp to take up and pay off the balance for which he was responsible of the suspended debt account, which, as before stated, amounted to $35,000, and which Hogencamp says was made up of the two Shaw notes, aggregating $25,000, and an item of Pratt & Wellman amounting to $10.000.

.For the purpose of complying with the bank’s demand in this respect Hogencamp arranged with Dwight S. Harding, a citizen of New York, to obtain the $35,000. His understanding with Mr. Harding was as follows: Hogencamp was to give his note for $35,000 to Mr. Harding and was to give to Harding as security that the note would be paid the following things: A mortgage upon Hogencamp’s property at Deal, New Jersey, for $35,-000; a mortgage upon Hogencamp’s residence at Paterson, New Jersejg for $10,000; and after the $35,000 had been paid to the bank and they had given up the two Shaw notes and the Shaw mortgage for $13,000 and the Denton Lakewood mortgage (the one in suit) for $12,000, all of those were to be pledged with Mr. Harding for the same purpose.

For some undisclosed reason the transaction with Harding fell through; but the undisputed testimony is (and the only testimony on the point) that the bank (Hogencamp being no longer connected in any way with the bank) offered to take Harding’s place and do exactly what would have been done had Harding carried out the transaction, and that this was done.

As a result, what then happened was that Hogencamp gave his note to the bank for $35,000, and they gave credit to the suspended debt account for $35,000. This was done on the 24th day of March, 1906. Since Hogencamp had already made the mortgages to Harding, they were, by appropriate instruments, assigned by Harding to the bank or its trustee, Hudspeth.

After this transaction, therefore, the situation was that the bank held the obligation of Hogencamp for $35,000, and as security therefor they held a mortgage from Hogencamp to Harding, assigned to Hudspeth, trustee, for $35,000 on Hogencamp’» Deal property, and a inortgage similarly made and assigned for $10,000 upon Hogcncamp’s Paterson property, and they also held the Shaw notes and the Shaw mortgage for $13,000 and the Den-ton $12,000 mortgage on the Lakewood property, the one in suit. The last-named securities were, of course, what can be termed a “repledge”—that is to say, they were not put up by Hogencamp with the bank at the time that he got the $35,000 credit, which went to the suspended debt account, but were put up by him with the bank after that period. In other words, the transaction was this: Hogencamp, being responsible to'the .bank, or being held by the bank to be responsible to it, for the $35,000' owed to the suspended debt account, the items of which were the two Shaw notes of $12,000 and $13,000, aggregating $.25,000, and the $10,000 balance of the Pratt & Wellman note, the bank obtains from Hogencamp his note for $35,000 and credits the suspended debt account with that sum on account of “Bills Discounted,” the “Bills Discounted,” unquestionably, being the note-for $35,000 just mentioned. The bank received at that time, as security for the payment of the $35,000, Hogencamp’s note, the $35,000 Deal mortgage and the $10,000 Paterson mortgage. The $35,000 was credited to the suspended debt account for the purpose of taking up and out of that account the remaining items therein for which Hogencamp was held responsible, namely, the-Shaw notes aggregating $25,000 and the Pratt & Wellman $10,000.

Afterwards Hogencamp repledged these notes, and the collateral which had been held for their payment, namely, the Shaw mortgage and the Denton mortgage on the Lakewood property, to the bank as additional security.

It would be absolutely impossible, within the limits of any permissible expression of the court’s finding, to do more than advert generally to the great mass of testimony concerning the personal dealings between Denton, Hogencamp and the bank from the year 1900, when we are first concerned with them, down to 1906, when they practically ceased. For a period of ten days witnesses have been giving evidence concerning these matters and the items are on hundreds of pages of books, checks, contracts and other instruments of proof.

Generally speaking, the following is a resume of the proofs: Beginning as early as 1900, some of the rents from Denton’s New York property reached Hogencamp, and after a period beginning in 1901 all of the proceeds of Denton’s New York property reached Hogencamp; and in addition to such proceeds, which consisted not only of rents, but the products of sales of the property, Hogencamp had made to him numerous mortgages upon these properties, and in many instances received the moneys upon such mortgages. Down to December, 1913, Den-ton had a personal account in the Second National Bank. William Hogencamp, throughout the entire time involved, had a personal account; and, in addition thereto, had three accounts. “William Hogencamp, Trustee,” began on the 14th day of November, 1901, and the last item is in August of 1903. Through this account there passed something in excess of $68,000. “William Hogencamp, Attorney,” began on the 30th of January, 1903, and the last item is January 4-th, 1904. Through this account there passed more than $36,000. “William Hogencamp, Bent,” began November 30th, 1903, and the last item is January 5th, 1906. Through this account there passed more than $136,000.

William Hogencamp, with the designation to determine out of which account it should be taken, constantly draw checks against each of these three last-named accounts; and in many instances, at a time when Denton had no personal account whatever in the bank, he, Denton, drew checks upon the Second National Bank which Hogencamp caused to be cashed out of one or the other of these three accounts.

It is practically undisputed that, beginning about 1901, all Denton’s real estate speculations in New York were carried on jointly by Hogencamp and Denton; whether there was to be any joint participation in profits and losses does not appear and does not have to be decided.

It does appear that Hogencamp personally participated in directing what should be done concerning these properties; to whom and for what price they should be sold, and that the purchase price coming to Denton after payment of encumbrances in each instance, passed to Hogencamp; and in addition, there passed to Hogencamp the money represented in numerous mortgages upon the properties which Denton was acquiring and was selling in the city of New York. In addition to this, loans were made from the bank to Hogencamp and to Denton, the proceeds of which were used in these New York operations; and beginning some time, I think, in 1903, Denton took out of the proceeds of his New York speculations only $25 a week for living expenses, and all the balance went to Hogencamp, and Hogencamp seemed to have assumed the personal direction, if not responsibility, of finishing the uncompleted buildings then in process of erection, upon Denton’s property, and of selling the properties when completely constructed.

Hogencamp contends, with respect to all of these transactions and to the entire course of dealings between him and Denton, that he passed through one of these three accounts, or through, his own and Denton’s account, all moneys which came to his hands in such a way that Denton got the benefit of,them. He did not attempt to demonstrate this, and it only could be demonstrated after an accounting which would require a vast amount of time to take.

Denton is practically ignorant of the result of his dealings with Hogencamp and the bank, and is not shown to have any records, books or the like which would enable him to determine how he stood. Hogencamp kept no books of any use, and it is only bv the most laborious tracing of items through the bank’s books that any result can be'reached concerning them.

If, in any aspect of the ease, the right of the complainants to foreclose this mortgage depends upon a finding that Denton is indebted to Hogencamp, there will have to be a reference to a master to take proofs as to the accounting and to report a conclusion as to the result of such proofs.

'To avoid any such necessity as that last suggested, the complainants put forward the first of their two theories:

That iheory may be fairly set forth as follows: Denton, on the 23d of April, 1900, gave to Hogencamp his notes for $24,-000. We may leave aside, in discussing this present theory, whether the transaction with respect to the stock upon that occasion was a bona Pda sale, or was merely an illusory proceeding, because, on the ,23d o£ July, 1900, it is admitted that Shaw gave his note to Hogencamp for $24,000, as an accommodation to take the place of the two Denton notes, aggregating $24,000 previously given. The bank having loaned $24,000 on the Shaw note, dated July 23d, 1900, and the Denton mortgage having been agreed to be given as collateral for this indebtedness (although not actually executed until September 1st, 1900), was, when executed and delivered, held as collateral for this loan by the bank on the Shaw note. The bank still holds the Shaw note and the collateral, to wit, the mortgage in suit; and since the Shaw note has not been paid, the bank has the right to foreclose the Denton mortgage which was held as collateral to it. I think this is a fair statement of the position taken by the counsel for the complainants with respect to this first theory.

So far as anyone can express himself with assurance in a case that is so involved as this one, I am prepared, in considering this theory, to accede to the conclusion if the premises upon which it is rested are correct in fact. I do not find, however, that the precedent factors exist to justify the conclusion. It must be recalled in the first instance that there is no documentary or other proof of any description, excepting Hogencamp’s testimony, that the Denton mortgage of $12,000, dated September 1st, 1900, was to be held by the bank or by anyone. At the time that the mortgage was given by Denton, on the 1st of September, 1900, Shaw’s note of $24,000 was in the bank, having been loaned upon by the bank on the 23d day of July, 1900, the day of its date. At the same time that Denton gave the mortgage upon his Lakewood property he assigned to Hogencamp the $12,000 mortgage which had been made by Han-ford to Denton upon the undivided interest of Hanford in the Rink Stable property in .Jersey City. There is nothing on tire books of the bank nor elsewhere to show that these titles thus vested in Hogencamp (one to the mortgage on Denton’s 'Lakewood property, and one to the mortgage which Denton had of Hanford’s) were as collateral to any transactions whatever with the bank, or, in fact, with Hogencamp. The books of the bank with respect to other transactions do show mortgages that were held by the bank and upon which money had been loaned—’the money, presumably, of course, was loaned upon notes to which the mortgages were security.

Passing this question, however, and assuming in favor of the complainants that their contention is correct that these securities when created were intended to be, and, after being created, actually were held by the bank as collateral to the Shaw notes, we next come to the transaction of July 24th, 1902, when the Shaw note of $24,000 was taken out of the bank.

There is no testimony of any value, if there is any at all, which shows that at that time there was any agreement between the parties and the bank that the mortgages of Hanford to Den-ton assigned to Hogencamp, and of Denton directly to Hogencamp (the latter on the Lakewood property) were to be collateral to the two notes which Shaw then gave, one of $12,000 and one of $13,000. It may very well be argued on behalf of Denton that, assuming the previous point which has just been dealt with to be decided against him, and that the mortgage on his Lakewood property was given by him to Hogencamp in order that he might turn it over to the bank as security for the $24,000 Shaw note of July 23d, 1900, it does not at all follow that when that $24,000 note was taken up, as it was, and new notes were secured from Shaw, that the collateral which was obtained for the loan of July 23d. 1900, should still be held for the new loans.

Passing this, in turn, and deciding, for the purpose of the further discussion of the point, that the result of the transaction of July 34th, 1903, when the bank loaned $35,000 upon Shaw’s notes of $13,000 and $13,000, respectively, was to vest them still with the Denton mortgage as security for the payment of those loans, there is no evidence that any agreement of the parties split up the collateral with respect to any part of the indebtedness that day arising; that is to say, on that day, July 34th, 1903, two notes of Shaw were loaned upon by the bank. The item appears in the bank’s books as one transaction —that is, on that day, in the demand loan account, the only place where the item appears, Shaw is charged with $35,000. This, the proofs show, was upon two notes of Shaw’s, one dated June 30th, 1903, and the other dated July 33d, or 34th, 1903; that the first note was for $13,000 and the latter for $13,000. There is not the slightest evidence to show that the partiesl then, or at anjr other time, agreed, that the Denton mortgage of $13,000 upon the Lakewood property was to be held as collateral for any part of this indebtedness. If the complainants obtain the benefit of all their debatable points so far considered, the utmost that they could claim would be that Denton’s $13,000 mortgage was collateral for the entire indebtedness and not for ■any specific part of it.-

This is important in one aspect, at least, of the case, because if the entire indebtedness were reduced, or if their other collateral, the right of the holder of the indebtedness against the owner of the collateral would be affected by those incidents— not to the extent of relieving the collateral holder from paying what might be due upon the entire indebtedness or having his collateral sold for that purpose, but because such circumstances would entitle the owner of the collateral to the use for his own benefit of whatever had been paid and whatever had beén received by way of other collateral if and when he was called upon to pay the balance.

Assuming, however, that it is further decided in favor of the complainants that the circumstances just adverted to does not prevent them from asserting their right to foreclose the Denton mortgage in suit if they can establish the validity and non-payment of the Sliaw7 note of $12,000, w7e next come to the most important and determinative feature:

Here, it should be recalled and firmly fixed in the memory, that it is admitted by all concerned that Shaw7 wras an accommodation maker, and that his original $24,000 note, and his two 'subsequent notes, of $12,000 and $13,000, respectively (leaving out of account $1,000 represented by the last two notes, with which we are not at all concerned in this case), were executed by him solely to accommodate Denton and Hogencamp, and that as to each of the last two-named persons no obligation arose by reason of the execution by Shaw of the notes in question; and no liability to those two persons arose as against Shaw7 by reason of the notes signed by Shaw7. It is only when these notes, or any of them, passed into the hands of Iona fide holders for value that Shaw can be held liable. Of course, if Shaw cannot be held liable upon his notes, or, in the particular case before this court, on his $12,000 note to which the Denton mortgage is asserted to be collateral, then the collateral may not be utilized by the holder. That is to say, the only right which the complainants here can assert as against Denton must rest upon their right to assert a valid claim against Shaw7 upon his $12,000 note; they cannot foreclose the $12,000 mortgage upon the Denton Lakewood property unless they prove that the note of Shaw7 of $12,-000, to which this mortgage was collateral, w7as valid and enforceable against Shaw.

In my view7 the proofs do not establish this last-mentioned contention. In my view7 the proofs show7 that on March 24th, 1906, Hogencamp paid off to the Second National Bank the Shaw notes and became vested with title to such notes and to the collateral which had been held by the bank for their payment. It will be recalled that in the previous portion of this opinion I have briefly referred to the testimony of Hogencamp concerning the transaction with Harding.and the bank at the time that he got the loan of $35,000 from the bank on March 24th, 1906, which wras credited to the suspended debt account to take out of it the Shaw7 notes and the remaining $10,000 of the Pratt- & Wellman note. Hogencamp’s own oral testimony is to the effect that I have just referred to; and the entries in the books of the bank and the other documentary proofs bear him out.

From all of this the following undisputed facts appear: In December of 1904 various items from “Demand Loans” were ordered to be taken therefrom and charged against an account entitled “Suspended Debt.” All of these items were those which the bank then held Hogencamp either personally or indirectly responsible for. Among these items were the Shaw notes, aggregating $25,000. One of such notes, namely, the one dated June 30th, 1902, is the note which, the bank loaned upon on the 24th day of July, 1902, and to which the Denton mortgage in suit is said by Hogencamp to have been collateral. Subsequently, and on the 7th of September, 1905, Hogencamp paid off on the suspended debt account something over $38,000. In the trial of Richards v. Shaw he testified, as is shown in the present suit, that by that payment then made he took up the Shaw notes, and, of course,. the collateral that was deposited therewith, among which was the Denton mortgage in suit. In the present suit he denies the truthfulness of that testimony previously given, and asserts that he was mistaken. There is nothing from the books of the bank by which it can be determined what particular items of the suspended debt account were taken up and out of that account by the payment by Hogencamp on September 7th, 1905, of the thirty-eight odd thousand dollars.

Assuming, however, in favor of the complainants, that they may have the benefit of Hogencamp’s present testimony, which is in direct contradiction of his testimony in the previous case, we next come to the transactions of March, 1906. According to Hogencamp, at that time he was being held responsible by the bank for $35,000 balance due on the suspended debt account. That $35,000, he says, was made up of the $25,000 of Shaw notes and the $10,000 balance of the Pratt & Wellman notes. At that time he arranged with Dwight S. Harding to obtain a loan from Mr. Harding of $35,000, for which he was to give Mr. Harding his note for that amount. He was to secure the payment of that note by a mortgage upon his Deal property for $35,000, a mortgage on his property for $10,000, and after the Shaw notes were by the pajunent of the $35,000 taken out of the suspended debt account and delivered by the bank to Hogencarnp, he was to transfer those with their attendant collateral (among which it will be remembered is the Denton mortgage in suit) to Harding.

When Harding refused to advance the money the bank undertook to take Harding’s place and to do just what Harding had agreed to do. This is Hogencamp’s own testimony concerning this transaction, and is uncontradicted and is borne out by what next happened. What next happened was the giving by Hogencamp to the bank of his note for $35,000; the crediting of this note under the head of “Bills Discounted” to the suspended debt account; the transfer to the bank by Hogeneamp, through Harding, of the $35,000 mortgage on the Hogeneamp Deal property and the $10,000 mortgage on Hogencamp’s property, and the leaving with the bank by Hogeneamp of the Shaw notes and the attendant collateral which his payment of $35,000 just mentioned had taken out of the suspended debt account.

It will be observed in analyzing this transaction that so soon as the bank received Iiogencamp’s $35,000 note and passed the credit by bills discounted of $35,000 to the suspended debt account, Hogeneamp became thereby vested with title to the Shaw notes and the attendant collateral, among which was the Denton mortgage in question. By then leaving those with the bank as additional collateral to his $35,000 note the situation just alluded. to is not altered. At the instant of time when Hogencamp became vested with title to the Shaw notes and the Denton mortgage those notes and that mortgage were unenforceable in his hands. This, I do not think, can be seriously, if at all disputed. As respects Hogeneamp, Shaw was an accommodation maker of the note in question—that is, the $12,000 note. Den-ton’s mortgage, Hogeneamp says, was collateral to this note. The only consideration which Hogeneamp or anyone else can attribute to the Denton mortgage arises out of the Shaw note. The Shaw note, as against Shaw, and as a consideration for the Denton mortgage, can therefore only be good in the hands of an innocent third person who had advanced money thereon; when Hogeneamp got back the title to the Shaw note for $12,000 and the attendant collateral, the Denton mortgage he could not, of course, enforce any liability as against Shaw or any rights with respect to the mortgage that was collateral to the Shaw notes. If, when he so got them back, that was the fact, he could not, by leaving them with the bank, create any greater right in the bank than he had, because it will be observed that no new consideration moved from the bank on the note in question—that is, the Shaw note. By the transactions upon that date, March 24th, 1906, which were designed, as Hogencamp says, to put a live asset in the bank in place of the moribund Shaw asset, the bank loaned money to Hogencamp upon his $35,000 note secured by his mortgages on his Deal and Paterson properties; and the only consideration which passed from the bank: to Hogencamp was the release to Hogencamp of these items out of the suspended debt account. There was no other possible reason for the transaction of March 24th, 1906, than to take out of the suspended debt account the $35,000 of balance which remained there.

If we were to attempt to follow the complainants in their argument made to review these apparent facts we are utterly unable to do so. The complainants attempt to waive aside all effect of this transaction of March 24th, 1906, and Hogencamp’s testimony with respect to the antecedent facts, but do not, in my judgment, effectively do so; and do not, in the attempt to do so explain away the effect of the testimony and of each of the pieces of documentary proof.

The note of $35,000 which Hogencamp then gave to the bank admittedly Avas not used for any other purpose than to be discounted in favor of the suspended debt account That is, the bank at that time held Hogencamp on his $35,000 note, and, instead of giving him the proceeds (that is, the consideration which proceeded from the bank for its receipt of the note), passed those proceeds to the credit of the suspended debt account, for which account it had been holding Hogencamp responsible. The instant that they did this they carried out the purpose of the transaction, which was to hold Hogencamp and take out of the suspended debt account the moribund items which had theretofore been in it. The instant that these items Avere thus taken out they passed to Hogencamp, and the instant they passed to Hogencamp they became invalid as against parties to this suit. That is, the note became invalid as against Shaw. It was an accommodation note; Hogencamp was the accommodation receiver of it, and certainly could not enforce it against the accommodation maker. With the note, as has been previously pointed out, of course, the right to recover on the collateral that had been deposited with it also ceased.

If this is not so, then, of course, the bank could not hold Hogencamp upon the $35,000; and it is inconceivable that they went through all of this transaction for no purpose; that they took his note, and, by the item of bill discounted, passed it to the credit of suspended debt account and took'from him mortgages aggregating $1-5,000, all for no consideration—all, therefore, in its, the bank’s, hands invalid.

It is quite obvious from all of the testimony that they did not do any such futile thing as this. They took from Hogencamp a valid security secured by collateral of a large amount for a valid purpose and consideration. That valid consideration was the taking out of the suspended debt account of the Shaw notes and other items for which the bank, with Hogencamp’s assent, was holding Hogencamp liable.

When they did, by this transaction, thus take those items out of that account, and those notes (the Shaw notes and the Pratt & Wellman notes), passed to Hogencamp, they became, as has been heretofore pointed out, invalid in Hogencamp’s hands so far as Shaw was concerned on his $12,000 note; and Denton’s mortgage, which was collateral thereto, likewise became invalid to Hogencamp.

By what I have termed his “repledge” of these notes to the bank, the bank cannot, certainly in my view of the facts and of the law, acquire any right to hold Shaw or Denton—-Shaw on his note, or Denton on his mortgage.

The only aspect of the case in which the bank could successfully asserfany such right would be if they had advanced any new consideration at the time of reacquiring title to the note and its attendant collateral. They did not, as has just been pointed out, do any such thing. The consideration which they advanced was the giving up of this very note to Hogencamp in consideration of. which Hogencamp gave them his note for $35,-000 and the $45,000 of attendant collateral. The repleclging with or the retaining by the bank of the Shaw notes was, therefore, ineffective as vesting them with any valid right as against Shaw on the note, or Denton on the collateral.

There is evidence in the case strongly confirmatory of the finding of facts just set forth, which unfortunately is somewhat complicated and requires a detailed explanation.

The note of $12,000 of Shaw which was originally loaned upon on the 24th day of July, 190,2, was dated June 30th, 1902. Why it did not bear the same date as the $13,000 note nobody explains. That note was introduced in evidence in the case of Richards v. Sham, and was inspected by me. It has since been mislaid or lost.

Upon the.back of the $13,000 note, which it will be recalled, was loaned upon by the bank on the same date, there now appears in Hogencamp’s handwriting an endorsement as follows: “Pay to William Hogencamp or order,” under which Shaw had written his signature. Then, in Hogencamp’s handwriting, “without recourse, William Hogencamp.”

Hogencamp in this suit testifies that he placed this writing upon that note of $13,000 to relieve himself of the responsibility as an endorser. He testifies in this suit that ho does not recollect whether he made the same endorsement on the $12,000 note. There is no conceivable -reason why he should not have made the same endorsement upon both notes, since the whole transaction was one and undivided, and whatever he did with respect to one, he, undoubtedly, in my judgment, did with respect to the other. Since he, or the parties who claim through him, are chargeable with the custody, and, therefore, with the consequences of the loss of this note, it is proper to assume, as against them, that upon the back of the $12,000 note was the same endorsement by Hogencamp.

In the case of Richards v. Shaw, as is shown by the testimony in this present case, Hogencamp testified that he made the endorsement quoted above on that $13,000 note when he took the note up from the bank, which he then said was in 1905. It will, therefore, be assumed that he did the same thing at the same time with respect to the $12,000 note.

He now testifies in this suit that he was mistaken when he testified in that suit that he had taken the notes up.

I find, as above set forth, that he was not mistaken; that he did take the notes up, if not in 1905, then in 1906; and I have no doubt, from the testimony to which what I have just alluded is additional confirmation, that at the time that he put these notes back in the bank—repledged them, as I have termed it— he wrote upon the back of each of them this endorsement.

There was no other occasion when he should have done any such thing. Up to the time that the notes were put into the suspended debt account they were always in the custody of the bank; Iiogeneamp had nothing whatever to do with them; was not legally held responsible with respect to them, and there would have been no occasion for him to have put any writing whatever upon them. After he made the arrangement with the bank which he first attempted to make with Harding by which the notes passed directly to him and became his property, he having paid to the bank the $35,000 to take them up, and it was understood that he was to repledge them with the bank, there was' opportunity and occasion for him to make them payable to his order1 and to endorse them “without recourse.” That he did this appears from the remaining note which has not been lost, by tire inference which I think should necessarily be made in this case with respect to the note that has been lost, and here is strong evidence in favor of the finding that he did take these notes up and repledge them in 1906, as above set forth.

The result of this analysis of the ease under this first theory advanced by the complainants, is that the bank, the complainants, cannot hold Shaw upon the note, and, therefore, cannot hold Denton upon the mortgage suit, if it be settled that there is nothing due upon the Shaw $12,000 note—that is, nothing due to the bank as a third person who initially cashed the note; or nothing due to Hogencamp, to whom the note was originally given by Shaw, and who reacquired it in the manner above set forth and repledged it as aforesaid.

And this brings us to the second contention of the complainants. That contention, broadly stated, is, first, that the stock transaction of the 23d of April, 1900, between Hogencamp and Denton, was a bona flfle sale by the former to the latter for $24,-000, and that the full consideration has never been paid by Den-ton to Hogencamp, and Shaw’s note was given to represent that indebtedness, and while Shaw was an accommodation maker of the note, he and Denton must each bo held (Shaw on the note, and Denton on the mortgage collateral to the note) until the full amount of the said consideration has been paid, or satisfied, to Hogencamp; and second, that even if the transaction was not a bona, fide sale, but was of such a nature that Hogencamp can hold Shaw and Denton for whatever benefit Denton got out of the use of the stock by borrowing upon it, Hogencamp or the bank may recover as against Shaw and Denton such amount— that is, the amount which it may be determined that Denton benefited by the use of Hogencamp’s stock.

Dealing, first, with the stock transaction of the 23d of April, 1900, it is extremely difficult to follow to a conclusion, reviewing the various relevant proofs, either version without being confronted by contradictory circumstances which interfere with a clear determination—that is to say, neither Hogencamp’s version nor Denton’s version stands the test of comparison with the other facts in the case.

Hogencamp, it will be recalled, testifies positively that on the date in question there was a simple sale by Mm of the stock for $24,000, and that he handed the stock to Denton and had it handed back to him as collateral, and that Denton gave his notes therefor. In contradiction of this we find, first, that he never caused any stock to be transferred to Denton until August 12th, 1901, that he loaned to Denton fifty shares of this very stock on the 15th of August, 1901, to be used by Denton in arranging with one of Denton’s creditors in New York. This is the Mc-Kelve3r transaction: That at that time Hogencamp took from Denton a $7,500 mortgage to secure Hogencamp for having loaned Denton these fifty shares of stock. We further find that on the 16th da31' of November, 1901, Hogencamp writes to the people who had these fifty shares of stock that he, Hogencamp, was the owner of it; that Denton never owned it, and that he had simply loaned the stock to Denton to enable Denton to borrow money upon it. We further find that Hogencamp always had the stock in his possession excepting when it was pledged for loans. He only identifies three dividend checks during all of the ensuing years which in any way went to Denton’s benefit. The testimony shows that large dividends were declared twice a year upon the stock of the Second National Bank during all of the period from 1900 when this transaction is said to have taken place down to 1905, when we lose interest in it. Hogencamp docs not attempt to trace any of these dividends to Denton, or to Denton’s benefit, excepting that he produces three checks for eighteen months of dividends which were all deposited at one time in one of the three accounts heretofore adverted to, which Hogencamp was carrying in the bank, and in which he says he was depositing Denton’s moneys. He does not pretend that Denton knew anything about these three cheeks, or about the receipt for his benefit of any moneys from dividends. Denton denies that he ever knew anything about any dividends, or received any dividends, or inquired for any dividends. He says that he gave a proxjr to Hogencamp for the stock after the stock was transferred to him on the 12th of August, 1901, and thereafter never concerned himself with it.

Hogencamp also refers, in furtherance of his version, to the letter which he wrote and caused Shaw to sign on the 20th of August, 1901. That letter, it will be recalled, was addressed to Iíogencámp, president, and requested him to deliver to Denton the one hundred shares of stock, and was signed, as just stated, by Shaw. At that very time fifty shares of the one hundred had already, without consulting Shaw in any way, been loaned by Hogencamp to Denton to take to McKelvey in New York, to be loaned upon for Denton’s benefit, and partially for Hogencamp’s benefit, in that he received over $3,000 of the proceeds of that loan.

In passing, it must be stated that he says that this money went to Denton’s benefit in one of the three accounts containing Denton’s moneys which Hogencamp says he was keeping in the bank.

When the stock was finally obtained from the Hudson Trust Company, where the last loan was made upon it, it went back to Hogencamp and he retained it in his possession down to the 7th of September, 1905, when he sold it, together with all of the other stock which he owned in the bank. A question has arisen, in my mind, which the recital of this fact revives, whether, as against Shaw, and also as respects Denton, the $19,000 which Hogencamp says he received from this stock at that time, must not be credited on this indebtedness—perhaps, I had better say “alleged indebtedness” of $24,000?

Passing this for the moment, however, we find that when he sold the stock on the date just given, he gave no notice of any sort to Denton, and did with the proceeds what he willed. What he chose to do, he says, was to credit Denton with $10,000, which he says he paid for Denton at the Hudson Trust Company at the time that the loan there, to which the one hundred shares was held as collateral, was paid off, and with some items of interest, and the balance he credited on an old note of Denton’s for $13,000, which was dated July 19th, 1901. The balance credited on this note was $7,652.80.

It will thus be seen that it is very difficult to believe Hogencamp’s version of this transaction, and to find that there was a bona ficlc sale of this stock to Denton.

There is no earthly reason suggested why Denton, who was at that time heavily engaged in real estate operations in New York, and who was so affiliated with Hogencamp that through Hogencamp he was then receiving and hopeful in the future of receiving large sums of money, should want to become a stockholder in the bank. Denton'says that he had no such desire, and that it never occurred to him, and that he knew nothing about the stock or its value, and never purchased it, and only participated in the transaction at Hogencamp’s suggestion.

I am inclined to think and to find that the truth lies between the two versions.

What I find from the facts in evidence is that upon the date in question, April-23d, 1900, Denton and Hogencamp made an arrangement of the following nature: They each wished to do whatever would enable them to obtain the largest amount of loans from banking institutions. Hogencamp, as a stockholder in the bank, could not obtain loans from that bank upon its own stock. Other institutions probably would loan with this stock as collateral. Denton could not, upon his own mortgages, obtain loans upon his own notes. If Denton gave mortgages to Hogencamp, and also notes which Plogencamp would endorse, money could have been obtained upon those notes with the mortgages as collateral. If, in turn, Hogencamp put title to some of his stock in Denton, and took from him as apparent consideration notes, those notes would be used with the mortgages, as just stated, and Denton could take the stock and borrow at other institutions upon notes which he would give with- the stock as collateral.

I do not, therefore, find that there was any sale from Hogencamp to Denton, and this, I think, squares itself with all the facts.

I do find, however, that the transaction was about as above outlined, and that to the extent that Denton benefited by loans obtained upon Hogencamp’s stock, he must make good to Hogencamp such amounts—that is to say, if he borrowed upon Hogencamp’s stock, and Hogencamp subsequently paid off the amounts thus borrowed, Denton, to the extent that he got the benefit of the original loans, must repay Hogencamp.

Whether Denton owes money to Hogencamp on the stock must depend upon the broad question of whether Denton owes Hogencamp any money. As has heretofore been pointed out, the dealings between these parties involves thousands upon thousands of dollars and concerns innumerable items; and if, as a result of an accounting, it should appear that Hogencamp has had more money from Denton than equals all that Denton owes him, or as much money as equals what he advanced to Denton, he cannot hold Denton for anything more. Since this stock transaction was only one of a great number of these transactions between the parties, it cannot be segregated and dealt with as if it were a separate severable item; and whether or not Denton has paid Hogencamp for the stock, or for the use of the stock, as above suggested, can only be determined after an accounting has taken place which shows as a result of it whether Denton owes any money to Hogencamp as the result of their dealings with each other.

To the extent that Denton may owe money to Hogencamp in all of their dealings, 1 am inclined to think that, under the facts in this case, Hogencamp would be justified in holding this Shaw note and the mortgage which is collateral to it for such amount.

Since there is nothing to show that Denton ever specifically repaid to Hogencamp the sums of money which Hogencamp proves that he paid on Denton’s account to get back the stock from those from whom Denton had borrowed money with the stock as collateral, it is impossible to separate this item from the others; and if, as a result of an accounting between Denton and Hogencamp, it be shown that Denton still owes Hogencamp money, Hogencamp, or the bank as the repledgee of the note with the mortgage as collateral, can attribute the payments to other things and still hold this debt open and enforceable.

Any attempt to follow Denton’s version that the entire transaction concerning the stock was for Hogencamp’s benefit, we are immediately met by circumstances entirely inconsistent with this explanation. A large part, if not all, of the money borrowed at various times and. places upon the stock went to Denton’s benefit. From his own bank account, or from accounts in which he was interested, he made payments upon loans where the stock was held as collateral, both on principal and interest. It is very difficult to escape from the conclusion which the court things is the true one, that both the stock and the mortgages were conceived and used for the' mutual benefit of Denton and Hogencamp.

My final conclusion, therefore, is that there must be an accounting between Denton and Hogen'camp, and that the final decree must abide the result of that accounting.


author: Walker, Ordinary.

text:
    In the matter of the last will and testament of Anna S. Geiser, deceased.
    [Decided July 7th, 1913.]
    1. The power of the prerogative court to admit to probate a will rests exclusively on the fact that decedent was domiciled in the state at the time of his death, otherwise probate must be denied.
    2. The domicile of a wife merges into that of the husband, and the unitj- of domicile exists during coverture unless the wife actually acquires a new domicile by the consent of the husband, or a constructive one, as manifested by acquiescence, abandonment, or conduct so inimical to cohabitation as will secure to the wife a divorce.
    3. A woman of considerable means married in Pennsylvania a man of very limited means. The man’s domicile continued in Pennsylvania. Throughout their marriage she maintained herself and contributed to the support of her husband. _ She had no legal grounds for separating from her husband, and did not attempt to do so, but cohabited with him at his domicile in Pennsylvania up to within less than a month before her death, except when away in search of health. She declared that she regarded a city in New Jersey as her domicile.-'-.H'eM, not to show that she was domiciled in New Jersey, and the prerogative court was without jurisdiction to admit her will to probate.
    On petition for probate of will.

      Mr. August 0. Streitwolf, Jr., and Mr. Robert M. Boyd, Jr., for the proponent.

      Mr. John S. Westcott and Mr. Ulysses G. Styron, for the caveators.
   Walker, Ordinary.

Anna. S. Geiser died in Atlantic City, leaving a last will and téstatment, which is now offered for probate. She left personal property in this state to be administered. Frederick Geiser, her husband, protests against its probate on the grounds—first, that the testatrix was not domiciled in this state, and second, because of undue, influence. Much testimony was taken, but none of consequence, to establish testamentary restraint, and that ground was abandoned at the hearing.

In the case of In re Chadwick’s Will, 80 N. J. Eq. (10 Buch.) 168, although dubious, I felt bound to follow the decision of Vice-Ordinary Reed in Brachar’s Case, 60 N. J. Eq. (15 Dick.) 350, and held that “Mrs. Chadwick had property in Hudson county, in this state, and therefore her will could be probated here without having been proved at the place of her domicile, according to’ the practice of this court as established by its decisions.”

The court of errors and appeals, in affirming the decree in that ease (80 N. J. Eq. (10 Buch.) 471), dissented from so much of the opinion as held that the prerogative court had original jurisdiction of the estate of those of foreign domicile, having property in this state, and expressed the view, concisely stated in the syllabus, that

“Neither the prerogative court, nor any of the surrogates of this state, have general jurisdiction to admit to probate the last will and testament of a non-resident, having a domicile at the date of his death in another state, although decedent leaves property in this state, except as anciliary to a probate by the courts of the, locality of such domicile.”

Therefore, the power of this court to admit to probate the will in question, must rest exclusively upon the deceased having been domiciled in this state at the time of her death; and if she were not, probate must be denied.

The deceased and the caveator were married in Easton, Pennsylvania, in 1905. The domicile of origin of both the husband and wife was Easton. The husband’s domicile has continued to he at that place. It is familiar law that upon marriage the domicile of the wife merges into that of the husband. It is a legal sequence of the nuptial contract, and the unity of domicile exists during coverture, unless the wife acquires one elsewhere by the husband’s consent. This consent may be either actual or constructive, and may be manifested by acquiescence, by abandonment, or by such conduct, inimical to cohabitation, as would secure to the wife a decree of divorce a vinculo or mensa et thora. 14 Cyc. 846, 847, and cases cited; Hackettstown Bank v. Mitchell, 28 N. J. Law (4 Dutch.) 516; Baldwin v. Flagg, 43 N. J. Law (14 Vr.) 495.

During the hearing the testimony impressed me that the testatrix was not so circumstanced as to empower her, and that she did not attempt, to take up a new domicile in this state. A careful consideration of the evidence has not altered that view.

The deceased was a divorcee and thirteen years older than her second husband. She was a woman of considerable means, while the contrary appears to have been his portion. Throughout the seven years of their married life the deceased maintained herself and contributed to the support of her husband. The marriage was kept a secret for almost a year, and until May, 1906. .During that time the couple lived apart, each at their respective homes. In August of that year they took up their home at Mrs. Geiser’s. From there they went to the Yandeveer, a boarding-house in Easton, where they remained until November, when they went to California, from whence they returned to Easton in April, 1907, and moved to the Bushlrill, where they lived until the following July. The testatrix then went to Atlantic City to meet her two children by her former-husband, who came from their home in Ohio to spend the summer with their mother. She returned to Easton in September and lived with her husband at the Bushkill until the following summer, when she again went to Atlantic City to spend the season with her children. In the fall of 1908, Mrs. Geiser brought an action for divorce in the courts of Pennsjdvania, alleging cruel treatment. The suit was soon abandoned, and the domestic relations of the couple were resumed at the Franklin House, a hotel in Easton, and continued there until January, 1909, and at 312 Spring Garden street, for about a month thereafter, when the two went to Florida. Upon their return to Easton, in April, 1909, Mrs. Geiser went to Atlantic City, where she stayed until the following July, then returned to Easton for a short time, and thence to the Spruce Cabin Inn, a resort in Pennsylvania. After a month’s stay she went back to Atlantic City. In October, 1909, Mrs. Geiser was seriously ill, and was removed by her husband to Easton, and then to a hospital in Philadelphia, for an operation. From this she recovered sufficiently to return to Atlantic City about Christmas time. After a second operation Mrs. Geiser was removed from Philadelphia to Atlantic City about Easter time of 1910, where she remained continuousN, except for a short visit to Easton, until July, 1911. At that time Mr. and Mrs. Geiser returned to Pennsylvania, making their home in various places in and about Easton until December 12th, 1911, when the deceased, accompanied by her husband, went to a sanatorium in Atlantic City, where she died, January 5th, 1912.

Shortly after her marriage Mrs. Geiser began suffering from an ailment, which was progressive in character, and resulted in her death. Search for health accounts for her migrations. Atlantic City seems to have been the haven to -which she turned for relief from her sufferings. When not cohabiting with her husband at Easton, Mrs. Geiser was in constant communication with him, either by telephone or by correspondence. Except during the summers of 1907 and 1908, when she was in Atlantic City with her children, he visited her weekty, and evidently as often as his occupation would permit. Most of the time their relations were pleasant and cordial. She was, undoubtedly, jealousfy fond of him. That he reciprocated her affections but meagrely, and that she resented his lack of attention and his indifference to assuming household obligations may well be believed. But that she was ever ready to respond to his beckoning and fondled the hope of a change in his disposition, and the anticipation of marital bliss in a home in Easton, is quite as apparent. To this sentiment she often gave expression.

In support of the argument that the deceased was domiciled in this state the proponents point to the failure of the husband to support his wife; her frequent declarations of ill-will towards him; her oft expressed intention to adopt New Jersey as her domicile, in order to circumvent the operation of the intestate laws of Pennsylvania relating to a husband’s interest in his wife’s estate; the identification card to the Montclair Trust Company giving her address as Atlantic City, and the recital in the trust deed to the trust company, and her declaration to counsel at the time he drew her will, that she was a resident of this state, taken in connection with the testatrix’s residence for a greater part of the time within the last two or three years of he)’ life in this state, all as creating a right in the testatrix to select a separate domicile, and as evidence of an actual exercise of that right.

The failure of the husband to support his wife was largely of the testatrix’s making. As already pointed out, she was a woman of means, while he was poor, and it is highly improbable that she expected him to maintain her in the manner in which her income made it possible for her to live. That upon occasions the deceased expressed her determination of’becoming a citizen of New Jersey, I regard as made prospectively and contingently. The card to the trust company was of commercial convenience, as indicating her. then post-office address. The recital in the trust deed is powerless to create a domicile where none existed. Her statement to the scrivener that she regarded Atlantic City as her home and her domicile, was merely a deliverance of a belief of the acquisition of a political status which was without warrant in law, and unsustained by the facts and circumstances as they then existed. Combined, these facts and circumstances did not create a new domicile. Gillman v. Gillman, 52 Me. 165; Hindman's Appeal, 85 Pa. St. 466.

It is clear that the deceased had no legal grounds for separating from her husband, and the evidence is plenary that she did not, in fact, attempt to do so. For it appears that, except when she was away in search of health, she cohabited with him at his domicile in Easton, Pennsylvania, throughout her married life, and up to within less than a month before her demise.

The right in the decedent to sever her matrimonial domicile, and the facium of residence, and the animus manendi, essential to a domicile in this state, have not been established. Watkinson v. Watkinson, 68 N. J. Eq. (2 Robb.) 632.

The deceased was not domiciled in this state at the time of her death, and hence this court has no jurisdiction to admit her will to juobate.

Probate must be denied, with costs.