author: Walker, Chancellor.

text:
    Edwin Robert Walker, Chancellor.
    Frederic W. Stevens, Eugene Stevenson, Edmund B. Leaking, Vivian M. Lewis, John H. Backes, John Griffin. John B. Foster, Merritt Lane, Malcolm G.' Buchanan and James E. Fielder, Vice-Chancellors.
    Turner & Seymour Manufacturing Company, a corporation, v. Acme Manufacturing Company, a corporation.
    [Decided March 10th, 1920.]
    1. Where there are judgment creditors of a corporation against whom a conditional bill of sale would be invalid for lack of’ proper recording, the receiver of the corporation 'appointed under the statute may, in the right of the judgment ’creditors, seii' up the defect.

      2. Under P. L. 1919 p. 456 § .2, ¡the receiver muy be directed to- exercise the rights of judgment creditors in belb-aif -of the ©state.
    3. The act (P. L. 1812 p. 208 § .1; Oomp. Stat. 1st Supp. p. 419 § 45), providing that a certain method' lof actaoiwffiedgmelnlj by 'Offi-aars of -a corporation- -shall be valid is permissive and not mandatory, and, net witlistanidmg -tibe .act, an acknowledgment under the authority of Hopper v. Lovejoy, 47 N. J. Eq. 573, is still valid.
    4. Uinidar section 23 of -the aqt concerning conveyances, as amended (P. L. 1912 p. 326; Comp. Stat. 1st Supp. p. 408 § 7), .am acknowledgment on -behalf of the corporation may be made by the officer executing the instrument without the state.
    5. An instrument not otherwise required to -be under -seal is nod required to be sealed to be recorded .under the recording acts.
    6. A -conditional bill of -sale executed by a Corporation without seal may he acknowledged alnd recorded.
    On bill, &c. On claim of Henry Prentiss & Co.-
    On application to set aside a conditional bill of sale as being unlawfully recorded.
    This matter was referred to Merritt Lane, Esquire, advisory master, who filed the following conclusions:'
    “The controversy involves the efficacy of the record of a conditional hill of sale given by the Acme Manufacturing Company, August 12th, 1918. The corporation has been declared insolvent and a receiver appointed. The property covered by the conditional bill of sale has been taken over by the claimant and a fund of $900 .substituted therefor. The claimant objects that the receiver cannot question the recording of the instrument. It is stipulated that there are judgment creditors whose judgments were obtained prior to the appointment of the receiver. In the right of such judgment creditors the receiver may question the validity'' of the record of the conditional bill of sale. He may be directed to exercise the right for the benefit of the estate. P. L. 1919 p. 456 § 2; Rapoport v. Rapoport Express Co., 90 N. J. Eq. 519.

    “The recording -of the conditional bill of sale is attacked upon the ground that the acknowledgment is made by the officer who executed it on behalf of the corporation, without the state. It is insisted that the certificate of acknowledgment does not conform with the provisions of P. L. 1912 p. 208 § 1; Comp. Stat. 1st Supp. p. 419 & 45, and' that this statute provides an exclusive method for the taking of acknowledgments of corporations and further, that if the statute does not provide an exclusive method, an aclarowledgment of 'a corporation cannot be taken without the state under the provisions of section 23 of an act concerning conveyances, as amended P. L. 1912 p. 326; Comp. Stat. 1st Supp. p. 408 § 7. The argument is that this section only applies if the ‘party’ who shall execute the instrument shall be without the state and inasmuch as a domestic corporation has its domicile'here it can never be considered as without the state; that this section, taken in connection with 2 Comp. Stat. p. 1542 § 22, only applies where the ‘party’ executing the instrument is without the state, and that a domestic corporation must always be considered to be within the state and an acknowledgment, of an instrument executed by it must be taken under the provisions of section 22 within the state.
    “In Hopper v. Lovejoy, 17 N. J. Eq. 573, the court of errors and appeals held that an instrument executed by a corporation might be acknowledged bjr the person who executed it on- behalf of the corporation, under the recording acts which then existed, which were substantially the same in terms as the present sections 22, 23. The act of 1912 (Comp. Stat. 1st Supp. p. 419 § 45) provides ‘that whenever certain officers shall acknowledge any instruments signed by them to be the voluntary act and deed of the corporation * * * and there shall be a certificate of such acknowledgment * * * it shall be as good and as effectual in law as if the said deed, paper or other writing had been made, executed and acknowledged by a natural person. Implied repealers are not favored in the law. It must be conceded as settled law, since the decision of Hopper v. Lovejoy, that an officer signing for a corporation may acknowledge an instrument on behalf of the corporation under the provisions of sections 22, 23. The statute of 1912 does not, in terms, provide an exclusive method of acknowledgment for corporations. In other states substantially the same legislation has been held permissive 'and not mandatory. Cone v. Nimocks, 98 Minn. 249; Huse v. Ames, 104 Mo. 91.

    “My conclusion is that notwithstanding the act of 1912 an acknowledgment of a corporation which would be valid without the act, is still valid.
    “In Hopper v. Lovejoy, supra, it was held that under the provisions of section 22 the party referred to as having executed the instrument is, in the case of a corporation, the officer executing for the corporation. The same construction of the word 'party’ should be applied to section 23 so that if the party who 'executes the instrument on behalf of a corporation happens to be without the state his ■ acknowledgment for the corporation may be taken without the state.
    “It is lastly insisted by the receiver that the recording of the conditional bill of sale is ineffective because the instrument is not sealed.
    “In Crawford v. Longstreet, 43 N. J. Law 325 (at p. 829), the supreme court held that a lease need not be executed by a corporation under seal, citing Baptist Church v. Mulford, 8 N. J. Law 182.

      “1 know of no rule that requires a conditional hill of sale to be under seal. It is argued that because of the language in section 22 which requires a certificate, in the case of proof as distinguished from an acknowledgment, that the party making the proof heard the party executing acknowledge that he signed, sealed and delivered the instrument as his voluntary act and deed, no instrument not under seal can be recorded. Original!), the recording acts applied only to instruments which required a seal to be valid. As time went on other instruments were added, some of which were never required to be under seal. Fotwithstanding this, the language of the sections with respect to acknowledgments and to certificates remained, in some instances, as originally drafted. In section 22, in reference to proofs, it is still provided that the officer must be satisfied that the party acknowledging' is the ‘grantor.’ Under section 21 many instruments are permitted to be recorded in which there are no grantors, technically speaking. Conditional bills of sale are not invalid if not under seal. They are required to be recorded. It is to be noticed that the act,in force at the time of this transaction was the act of May 9th, 1889. 1 Gen. Stat. p. 891 § 185 et seq.; Rapoport v. Rapoport Express Co., supra. There is nothing in that portion of section 22 which has to do with acknowledgments as distinguished from proofs, which requires the execution to be under seal, or the officer to qertify that the party signing acknowledged that he sealed. The recording acts ought to be so construed as to effectuate the object, but not so construed as to invalidate transactions for no useful purpose. American Soda Waster Co. v. Stolzenbach, 75 N. J. Law 721.

    “My- conclusion is that the -conditional bill of sale was properly recorded and an order will be made directing the receiver to pay the fund in dispute to the claimant.”

      Messrs. Bilder & Bilder (Mr. Kaufman), for the receiver.

      Mr. W. Ludlow James, for Henry Prentiss & Co.
   Walker, Chancellor.

A decree will be made in conformity with' the advice contained in the conclusions of Advisory Master Lane, which are hereby adopted as the opinion of the court..


source: Caselaw Access Project

license: Public Domain

text:
    Sadie B. Lasker, petitioner, v. Bernardt Lasker, defendant.
    [Decided March 17th, 1920.]
    In .divorce oases the doctrine that corroboration of petitioner’s testimony need mot be by witnesses of-every fact, but that if sufficient corroboration; exists as to certain facts the testimony miay be accepted throughout, is made to relieve petitioner in .a case of ihiardship where she would be defeated for want of corroboration, of facts which it is impossible to obtain, huiti is not intended to .permit petitioner to withhold the best evidence of facts essential to be proved in order to grant a divorce, Where proof of those facts is obtainable; and this by analogy to the rule requiring the best evidence of which the nature of the case is susceptible.
    On petition, &c. On final hearing on master’s report ex parte.

      Mr. William M. Goldweber, for the petitioner.
   Walker, Chancellor.

A careful reading of the testimony annexed to the master’s report discloses the fact that there is absolutely no corroboration of the continued desertion of the petitioner by the defeñdant. The marriage is corroborated, and also the fact of willful and obstinate desertion on January 8th, 1915. The petitioner continued to live with her child at her parent’s house at Port Richmond, Staten Island, from'that time until March 1st, 1916, when she went to reside with her married sister in Bayonne, New Jersey. Her sister was called as a witness but does not sajr a word .to the effect that the petitioner’s husband did not visit and cohabit with his wife at her house in Bayonne during the more than four years which elapsed between the petitioner’s going to live with her and the date of her depositions. Nor does any other witness say so. Nor does the petitioner herself say so in terms. It is, however, to be inferred from the petitioner’s statements that she has not seen or heard from her husband since he left her; that he has remained continuously away.

There are three essentially requisite things in a divorce case not only to he proved, but to be corroborated, namely, marriage, residence and cause of action. Bolmer v. Edsall, 90 N. J. Eq. 299. And corroboration, in order that a divorce may be decreed, need not be testimony given by another or other witnesses to all of the same identical facts to the minutest particulars, but only such facts and circumstances as will make the petitioner’s testimony believable. Orens v. Orens, 88 N. J. Eq. 29. And corroboration need not be the testimony of witnesses; it may be furnished by surrounding circumstances adequately established. Rogers v. Rogers, 89 N. J. Eq. 1.

It sometimes happens that it is impossible to> obtain corroboration by a witness or witnesses of the continued desertion of a married person, although the original desertion itself, as being willful and obstinate, is clearly so established. And in the case at bar, the willful and,obstinate character of the desertion being clearly proved, petitioner’s whole story would have been accepted and a decree of divorce nisi granted, if it were not for the fact that direct and positive-evidence by another witness or witnesses must, in the nature of things, be available to her. The failure to call the witness or witnesses who could speak to this fact, is at least tantamount to a violation of the rule about to be stated. It is laid down in 3 Bl. Com. 368:

“And i‘lhe one general rule ¡bhat runs through all the doctrine of trials is this, that the best evidence- the nature of the ease will admit -o-f shall always be required, if possible to -be ¡had; hut if not possible, them the best evidence that can be -bad -shall be .allowed. For if it be found that libere is .any better evidence existing than, is produced, the very not producing -it is .a .presumption that it would have detected some falsehood that at present is concealed.”

The doctrine that corroboration of petitioner’s testimony need not be by witnesses to every fact, but; that if sufficient corroboration exists as to certain facts the’testimony may be accepted throughout, is made to relieve petitioner in a case of hardship where she would be defeated for want of corroboration of facts which it is impossible to obtain. It has not been evolved, nor is it intended to permit petitioner to withhold the best evidence of facts essential to be proved in order to grant a divorce, where proof of those facts is obtainable. And this by analogy to the rule requiring the best evidence of which the nature of the case is susceptible. I say by analogy to the rule, because it does not bear directly on the situation before me. The testimony of the petitioner is in strictness the best evidence because it is the sworn word of one who knows the fact; but, because of the rule in divorce cases which requires that a decree may not be granted unless the complaining, party is corroborated, the rule allowing 'constructive corroboraiion will be given effect only when better evidence cannot he adduced. Eesort to actual corroboration of parts of petitioner’s testimony as tending to show her truthfulness, and thus render her entire story acceptable, will not he resorted to in aid of her case when it appears that actual corroboration of all the salient facts is obtainable but is withheld, unless excusatory explanation is made which satisfies the court. Why the sister with whom petitioner has lived was not examined as to defendant’s continued desertion is in nowise explained.

Leave will be given the petitioner to take further depositions before the master iir the matter above indicated. Fo further report, however, will he required.


text:
    Joseph H. Rinehart, petitioner, v. Lillian E. Rinehart, defendant.
    [Decided April 28th, 1920.]
    1. Nio ¡order nunc pro tuno wmH be miado dismissing la prior suit for divo-rcc, nor will consolidation, of i‘lwo divorce causes between, the same parties be allowed, so as to disturb the statu® or impair the rights which obtain by the pendency of the former cause.

      2. In divorce oases the state is a party whose interest the court ¿fl all times will save iamd protect; and ‘as the law favors marriage and disfavors divorce, the court will do nothing' to facilitate the latter, but will only dissolve the marriage relation when the complaining party is strictly entitled to a decree.
    3. The rule that none iof the llime occupied by the pendency o-f* a former bona fide proceeding for divorce by one of the parties against the other cam be computed a® part of ‘the time of the desertion .in a Hater case between them, does mot apply when process was mot issued in the former proceeding, or, having been issued, was never served personally or by publicai'lion and substituted service .under the statute, and when the defendant was consequently not .in court in the former case, and, in'such eireumisbainees, ‘the former proceeding is mo impediment to the granting of a divorce dm the later one.
    4. McLaughlin v. McLaughlin, 90 N. J. Eq. 322, distinguished.
    On petition for divorce. On final hearing on pleadings and proofs ex parte.

      Messrs. Campbell, Be Turck & West, for the petitioner.
   Walker, Chancellor.

• On November 3d, 1917, a petition for divorce was filed on behalf of Joseph H. Binehart (44-193), the petitioner in this canse, and a citation was issued and returned by the sheriff “not found.” The petitioner entered the army and did not further prosecute that cause..

On June-16th, 1919, the petitioner, Joseph H. Binehart) commenced this suit for divorce by petition filed in this court (46-538). The defendant in this case was returned non-resident, and due notice of the order of this court directing the defendant to appear and answer the petitioner’s petition was duly published and served upon the defendant, together withi 'a certified copy of the petition, as notice to the defendant without this state, as in the order and by the rules of this court is directed and prescribed. The defendant being thus in court filed no answer and the cause was referred to a special master who has reported that the petitioner is entitled to- the divorce prayed for. The petition in the cause sub juclice alleges the desertion to have commenced on the same date as alleged in the former petition, and, if the former suit, in which no decree of dismissal was ever entered, is and has been pending bona fide since the filing of the petition therein, the divorce prayed for by the petitioner and recommended by the master in this cause will hare to be denied, because none of the time occupied by the pendency of a former bona fide proceeding for divorce by one of the parties against the other can be computed as part of the time of the desertion in a later case between them. McLaughlin v. McLaughlin, 90 N. J. Eq. 322. And the question is, has the former suit between the parties to this proceeding been so pending since the filing of the petition therein ?

Apprehending that this question might be answered in tibe affirmative counsel for the petitioner applied for leave to dismiss the first petition nunc pro tunc as of a date prior to two years before the filing of the last petition, so that the two years'" desertion required by our statute as cause for ■ divorce would have run before the filing o’f the second petition, or, failing that, for leave to consolidate the two suits, asserting that they are but one. Neither of these remedies is available. Nunc pro tunc is a phrase used to express that a thing is done at me time which ought to have’been performed at another. 2 Bouv. L. Die. {Emole’s rev.) 5£8. It cannot be said that the former petition ought to have been dismissed at all. It might have been but was not, and if that suit has been pending bona fide it bars-relief in the present one, for surely the rule of nunc pro tunc entries can never be invoked to change a legal status. When the court causes delay in the entry of a judgment or order an entry will be allowed nunc pro--tunc as of the time when the party would otherwise have been entitled to it. St. Vincent’s Church v. Borough of Madison, 86 N. J. Law 567. There maj' be cases in which the parties are entitled to have such an entry made when they themselves have caused delay but never so as to disturb a status or impair -rights. Equally unavailable is the suggestion that the two causes be consolidated. It must be perfectly obvious that the rule allowing the consolidation of causes likewise cannot be invoked when it would disturb a status or impair a right. Besides, there could be no consolidation as the defendant is not in court in the first case. Furthermore, in divorce cases the state is a party whose interest the court at all times will save and protect. Grant v. Grant, 84 N. J. Eq. 81. And as the law favors marriage and disfavors divorce, the court will do nothing to facilitate the latter, but will only dissolve the marriage relation when the complaining party is strictly entitled to a decree.

But I think the former suit between these parties has not been pending b'ona fide in the sense contemplated by the McLaughlin Case and the cases therein cited. Weigel v. Weigel, von Bernuth v. von Bernuth, Marsh v. Marsh, Chipchase v. Chipchase and Drayton v. Drayton were cases in which the defendants in the earlier proceedings were brought into court and filed litigious" pleadings. In Johnson v. Johnson there were two prior proceedings, the first-by the husband against the wife, and the second by the wife against the husband. In both the' defendants were in court but filed no pleadings. This is not shown in the reported case, but appears from an examination of the files of the earlier one. The only other cases cited in McLaughlin v. McLaughlin are Metzler v. Metzler and Thomas v. Thomas, which are on another point.

It is true that Vice-Chancellor Backes in Hermann v. Mexican Petroleum Corp., 85 N. J. Eq. 367, held that a suit in chancery is commenced when process is issued. The Hermann Gase concerned a bill, and the Chancery act (Comp. Stat. p. f.11 § 8), provides that no subpoena or other process for appearance shall issue until after bill filed. The Divorce act (P. L. 1907 p. Ifili), provides in section 10, that all suits for divorce shall be commenced by filing a petition with the clerk, and in section 11, that upon filing the petition the clerk shall, if required, issue a citation under the seal of the court, for the defendant to answer. So we have the same statutory provision with reference to issuing process of citation in divorce cases as for issuing process of subpoena in suits commenced by bill, namely, that the process in each case shall only issue after the filing of the initial pleadings. But the commencement of suits is one thing and their pendency is quite another.

It will be .observed that in the cases citéd the defendants were in court in the earlier suits brought bv the petitioners. In the instant case the defendant was not brought in, and, this being so, the defendant could not get in by voluntary appearjince, but only in proceedings strictly adverse and in accordance with the statutory provisions for obtaining jurisdiction. Henry v. Henry, 79 N. J. Eq. 493; affirmed, 81 N. J. Eq. 512. It cannot be said with reason that a case is .pending tona fide against a defendant who has not been brought into court to defend it, and who has no opportunity to voluntarily appear for that purpose. This in effect was held by me when vice-chancellor in a case in which no memorandum was filed. The ruling is to he found in Bid. N. J. Dim. Brae. (2d ed.) 91, which reads as follows:

(p.) Where a woman deserted her husband and lived under condition® that gave rise to suspicion «is to her ehas'lity, ia suit for adultery coroimemeed and later abandoned for want of decisive proof (of which suit, the wife, having disappeared before its commencement, never had notice) was held not to prevent a suit against her for desertion for a peiriod covering- part of the time of the pendency of the first suit. Eardley v. Eardley, Dack. 33 p. 356, Walker, V. C.”

The note correctly states the rule laid down, hut is inaccurate iu some of its statements of fact. The case there considered is to be found at page 536 of docket 33, instead of page 356, and the suits were those of the wife against the husband charging him with adultery in the first one and desertion in the later one. No memorandum on the question here involved was filed in either of thte Eardley cases, the first one of which is to be found in docket 31, page 429. A decree dismissing the first suit, without prejudice, was entered on the same day that tlie petition was filed in the subsequent case. There is nothing in the McLaughlin Case which conflicts with the holding in the Eardley Case.

I am more than ever convinced that the rale in the Eardley Case is sound. I do not think that the doctrine that none of the time occupied by the pendency of a former' bona fide proceeding for divorce by one of the parties against the other can be computed as part of the time of the desertion in a later case between them obtains, when process was not issued in the former proceeding, or, (having been issued, was never served personally, or by publication and substituted service under the statute. In the McLaughlin Case, it will be observed, the defendant was served with citation and copy of petition, and filed an answer, and the cause was referred to an advisory master but was never brought on for hearing.

The advisory master holds that the present petitioner is entitled to a divorce on the proofs taken before the special master, subject, to my judgment on the question of former suit pending, and as I am of opinion. that the former suit, in the circumstances above detailed, is no impediment to the granting of a divorce in this case, a decree nisi will be entered.


author: Leaming, V. C.

text:
    Joseph T. Henderson v. Joseph M. McGowan, executor of the estate of Laura Ellen Ash, deceased.
    [Submitted May lOth, 1920.
    Decided May 13th, 1920.]
    1. Where lands 'are devised in the first instance- in language indeterminate -as to- the quantity rof ithe estate from which am -estate for life woul-d result1; by implication, and words adapted to- the creation of a power -of disposal without restriction a-s to the mode ;bf execution arc added, the construction will -be -that an estate in fee is given; bnt where the quantity of -the estate of the taker is expressly -defined for life, the suporadded Word® will be construed a® a mere gift of a p-ower of disposition.
    2. Downey v. Borden, 38 N. J. Law 460, approved and followed.
    3. The language of the will under consideration, held to constitute a devise in fee-simple.
    On bill for injunction, and relief. On hearing at return of order to show cause.

      Mr. Albert W. Xcuwffmann, with whom was associated Mr. Albert E. McAllister, for the complainant.

      Mr. Willis Tullís Porch, with whom was associated Mr. John Boyd Avis, for the defendant.
   Leaming, V. C.

By his bill complainant seeks to restrain defendant, as executor of the estate of Laura Ellen Ash, from selling certain real and personal property the title to which complainant alleges passed to him and other heirs-at-law of George W. Henderson, deceased, under his will.

George W. Henderson died in 1906, leaving a will under) which his widow Laura Ellen Henderson came into enjoyment of practically all of his real and personal estate. The widow married Louis P. Ash in 1909 and died in March, 1920, leaving' a will in which after certain bequests she disposed of her entire estate to her great niece, and appointed defendant, McGowan, executor of her estate with power of sale.

The present hill is based upon a claim that the will of George W. Henderson gave to his widow only a life estate in his real and personal property and gave to his heirs-at-law the absolute title, subject only to the life estate of the widow. Thei property about to he sold is alleged to be property devised and bequeathed by Henderson to his widow.

The will of George W. Henderson under which complainant claims reads as follows:

"First: I direct all my just debts and my funeral expenses to be paid as soon as may be reasonable after my decease.
“Second: I give iio my wife Laura E. Henderson all my furniture which I may own ait tbe time of my death.
“Third: I give;, bequeath and deviise all my rest, residue and remainder of my estate, -real1, personal or mixed in whatever it may consist, or wlherever situated, which «brail belong to. or be owned by me at the 'time of my death, to my said wife Laura E. Hendersoni; and it is my will and I do order that any of my estate devised as aforesaid, remaining in her possession at the time of ijier death, shall be inherited by my heirs at law.
“Fourth: I constitute and appoint my said wife Laura E. Henderson, sole executrix of this my last will and testament.”

I am unable to reach the conclusion that restraint should be issued against the public sales which the executor of Mrs. Ash now proposes io make.

1. It is urged 'herein on behalf of complainant that a life estate only and not the fee of the real estate passed to the widow because of the absence of words of inheritance, since the provisions of the thirty-sixth section of our statute of mils (4 Corap. Stat. p. 5878) are inapplicable by-reason of tire reservations contained in that section, and Hensler v. Senfert, 52 N. J. Eq. 754, is relied on.

The aid of that section is wholly unnecessary in any case where the power of disposal is clearly conferred. By reason of the absence of words of inheritance in the first instance .the language used is indeterminate as to quantity of the estate and from it an estate for life would result by implication unless .enlarged by the subsequent, power of disposal; but when so enlarged a fee is created. The accepted rule in such cases, as repeatedly recognized by our court of errors and appeals and elsewhere in this state, is phrased by Mr. Justice Depue in Downey v. Borden, 36 N. J. Law 460, 466, as follows: "The distinction is between a devise expressly for life- with a power of disposition annexed, and a devise in general terms with such a power annexed. In tire former case, an estate for life only passes, in the latter a fee. As a rule of construction, the principle is entirely settled, that where lands are devised in the first instance in language indeterminate as io the quantity of the estate from which an estate for life would result by implication, and words adapted to the creation of a power of disposal without restriction as i.o the mode of execution are added, the construction will be; that an estate in fee is given; but where the quantity of the estate' of the laker is expressly defined to be for life, the superadded words will be construed to be the mere gift of a power of disposition.” It necessarily follows that the primary inquiry in this case is whether the superadded language clearly implies a power of disposal; if it does a fee passed.

It seems to me impossible to doubt that testator gave to his widow the unrestrained right of disposal of his estate. Instances have arisen in which language somewhat similar, espedally when taken in connection with the context, has been construed as referring to an estate in remainder and not to the remainder of the property which tire devisee has not disposed of, or as referring to the remainder of personal property resulting from changes of investments; but'in a clause relating to or including real estate a provision that any of it remaining in tire devisee’s possession at her death cannot be understood in either of the ways referred to. Tooker v. Tooker, 71 N. J. Eq. 513, relates to personal property and is in no way inconsistent with that view. The courts of this state have so frequently treated language of similar import as clearly disclosing a power of disposal that there seems little doubt touching the clause here in question. To the cases collected in Bennett v. Association, &c., Home, 79 N. J. Eq. 76, add Downey v. Borden, supra; Brohm v. Berner (Court of Errors and Appeals), 77 Atl. Rep. 517; Brokaw v. Emens, 84 N. J. Eq. 389; Bunnell v. Beam, 86 N. J. Eq. 101; Hyde v. Hyde (Court of Errors and Appeals), 102 Atl. Rep. 830.

2. The evidence discloses that the real estate to be sold was acquired by the widow after her husband’s death and after her remarriage, and that none of the furniture to be sold came from tire, husband’s estate. There is no definite evidence whether any money that came from the husband’s estate was used in the acquisition of any of the property to be sold; but some evidence exists to tire effect that the widow acquired resources after her husband’s decease.

I will advise an order denying preliminary restraint.


text:
    Charles Sterne v. South Jersey Title and Finance Company.
    [Submitted May 24th, 1920.
    Decided May 25th, 1920.]
    VYibei-e & .check was endorsed by the payee with a restrictive endorsee miemt “for deposit” amd was afterward® Joist in- the miali-ils, thle payer should pay the .amount -thereof to the payee upon itlender iof -an dindem-nity board without surety, the payee being financially responsible.
    On final hearing on bill for relief.

      Mr. D. Truman Btachhóuse, for the complainant.

      Mr. Charles C. Babcoch, for the defendant.
   Leaming, V. C.

This suit is brought by complainant for the recovery of the amount of a bank check given by defendant to complainant and by its terms made payable to the order of complainant.

Thte jurisdiction of this court obtains by reason of the averment in the bill that the check has been lost.

The bill alleges that when the check was received by complainant he immediately mailed it to the Broadway Trust Company, a banking institution, where complainant had an account, having first endorsed the check by the following restrictive endorsement:- “Broadway Trust Company, for deposit only to the credit of Charles Sterne;” that two days later he learned from the Broadway Trust Company that the check had not been there received and at once notified defendant of the facts and had defendant stop payment of the check at tibe bank on which it was drawn; that after due investigation the check has not been located.

The present dispute arises wholly by reason of the fact that defendant has been-unwilling'to pay to complainant the amount for which the dbteck was drawn unless complainant woiild supply an indemnity bond with a surety, whereas complainant has been unwilling to indemnify defendant against loss other' than-by his own bond without a suret]"-.

Most of the adjudications touching a defendant’s right to indemnity in cii’eumstanees of this nature- have arisen in relation to promissory notes and bills of exchange; the cases are numerous and conflicting! Cases are to be found to the effect that indemnity will not be required where a lost bill or note, payable to order, has not been endorsed or has been endorsed in a manner to prevent its use by another or has been lost after its maturity or has been destroyed; other authorities adopt the view that even in the several circumstances stated, in which circumstances the maker would have a valid defence to an action by another, the maker should not be put to either the risk or trouble or expense of making such defence where no fault, of his -own exists, and adequate indemnity should accordingly be exacted in all cases; still other authorities hold that the question of indemnity is addressed to the sound discretion of a court of equity to be exercised according to the circumstances of each case. In 17 R. C. L 1192, after a review of authorities, it is said: “However, an examination and comparison of the numerous conflicting authorities, and the reasoning which they adduce, make it clear that the best role is to require the indemnity in -all cases, whether a bill or note is lost or destroyed. It may in some cases operate as a great inconvenience, and may even produce hardship, but so does nearly every mischance or misfortune. If an instrument is lost after maturity there is still the possibility that the defendant may b.e unable to prove this fact as against a person claiming as a bona fide purchaser for value, since the time of the indorsement does not usually appear on the instrument. Even though the note had not been indorsed, the defendant may be put to the annoyance and expense of defending a suit. If the instrument was destroyed, proof of its destruction is some assurance that it can never afterwards appear; but considering the uncertainty and fallibility of all human testimony, it seems unjust to force the maker to take the risk of the reappearance of the instrument, and accordingly by the better authority it is held that indemnity should be exacted in all áctions on lost negotiable instruments, even though the instrument was lost after maturity, without indorsement by the payee, or after having been cut in two for transmission through the mails, and even where the instrument was proved to hare been destroyed.”

In the present .ease testimony of complainant is entirely convincing to the effect that the check was endorsed by him with the restrictive endorsement set forth in the bill and was promptly mailed for deposit and has been lost in the mail. It is also reasonably clear that complainant is pecuniarily responsible, and since our statute (3 Comp. Stat. p. 3756 § 186) provides that a.check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of loss caused by the delay, it seems that but little danger of future trouble or annoyance to defendant can exist. The bond of complainant, without a surety, as proffered before suit, will, in my judgment, adequately protect defendant.

At the same time it seems entirely clear that defendant was fully justified, before trial, in exacting a bond with a surety. Tntil the trial defendant could not know the extent to which the facts alleged in the bill could be established by competent proofs, since none of the facts alleged were within defendant’s knowledge. In my judgment defendant was fully privileged to exact the measure of indemnity required by it or put complainant upon proofs of the facts claimed by him.

In this view, I am convinced that defendant should be ordered to pay upon the indemnity bond already tendered by complainant being supplied to defendant, and that neither party should recover taxed costs of the order. I will accordingly advise a decree of that nature.


text:
    Rebecca A. Hires, petitioner, v. George Hires, Jr., defendant.
    [Decided June 7th, 1920.]
    Wiliere a separation agreement toad been entered into by a tousbaud and wife, stipulating a certain annual pai'ment by the husband to itltoe wife during theii’ joint lives, and the wife afterwards obtains a divorce on the ground of adultery, this court, in fixing future alimony, is not bound by the terms of the separation agreement, but should fix- an amount according to the wife’s needs and the husband’s ability to pay, and the increasing expenses of the children, who are in the wife’s custody, should also be considered.
    On petition for divorce. On hearing on exceptions to report of special master.

      Mr. Edward G. Waddington, for the petitioner.

      Mr. Albert 8. Woodruff, for the defendant-exceptant.
   Leaming, V. C.

By the petition filed herein petitioner seeks a divorce from defendant on the ground of adultery and prays that the custody of the two minor children of the márriage may be awarded to her and that defendant may he compelled to pay to1 petitioner a suitable amount for the support of petitioner and the two children:

Ho answer having been filed by defendant a reference was made to a special master. Before the special master the charge of adultery was fully established and considerable testimony .was taken to determine the amount that defendant; should pay for the support of petitioner and the children.

The master reported in favor of a decree of divorce for the adultery of defendant, and fixed $3,000 per year _as the amount defendant should pay for the support of petitioner and $2,000 per year as the additional amount he should pay for the support of the two children whose custody the master awarded t.o petitioner ; the master also reported that defendant should give bond to the amount of $20,000 to secure these payments.

The .present hearing is on exceptions to the master’s report which have been filed by defendant.

Eb exceptions have been filed to that part of the report which finds defendant guilty of adultery as charged and recommends a divorce on that ground; nor are exceptions filed to the award of the custody of the children to petitioner; nor are exceptions filed to that part of the report fixing $2,000 per year as the amount to be paid to petitioner by defendant for the support of the children. The exceptions relate alone to the award of $3,000 per year to be paid by defendant for petitioner’s support and to that part of the report requiring defendant to give bond of $20,000 to secure the payments referred to in the report.

By the testimony taken before the master it appears that the sole source of income of defendant, is the-amount paid to him from year to year by testamentary trustees of a certain trust estate. Since the amount payable to defendant during the last, year of the trust could not be ■ definitely known' when the trustee testified, a stipulation has since been filed supplying that information.

It appears by the testimony that in the year 1915 a formal separation agreement was. entered into by the respective parties in which, among other things, it was agreed that. $1,500 a year should be paid by defendant to petitioner for her support, which amount she agreed to receive "in full satisfaction for her support and maintenance, and all alimony whatever.” That amount, in monthly installments, defendant has since paid. It is now contended by defendant .that notwithstanding the fact that a decree of.divorce is now to be entered against him by reason of his adtdtery, no order'for alimony for his wife in that decree can properly exceed in amount, the rate stipulated in the separation agreement. The agreement is for the period of the joint lives of the parties and provides that payments shall be made at the rate named for ten years, at the end of which time a larger amount will be agreed upon, but that the rate named shall continue after the expiration of the ten years until such new agreement shall be made. The separation agreement contains no stipulation limiting its operation to the period of chastity of either of the parties.

The question is thus directly presented whether the wife is to be bound by her covenant to accept $1,500 per year for'her support after she shall have procured a divorce from her husband by reason of his adultery, since the evidence touching her present needs and her husband’s present income clearly discloses that but for her covenant to accept $1,500 for her support she should be awarded a larger amount.

I find no authority in this state that may be said to directly dispose of tire present inquiry. In Buttlar v. Buttlar, 71 N. J. Eq. 671, the wife divorced her husband because of his adultery, but no decree for alimony was made. Subsequently she sued her divorced husband to enforce the payment by him of the amount due her under a separation agreement made while the parties were husband and wife, the recovery • sought being the amount that had accrued since the decree of divorce. The obligation of the defendant under that agreement was there recognized and enforced; no claim was there made based upon the complainant’s rights or needs in excess of the amount specified in the separation agreement. In Halstead v. Halstead, 74 N. J. Eq. 596, the same vice-chancellor held that where the wife had sued for divorce and pending that suit had procured an order for alimony pendente lite, she could not pending that action maintain a separate suit to recover a larger amount under her separation agreement during the period the alimony order was running, since she had elected the former remedy. Any inquiry is to what effect, her divorce decree, when procured, either with or without alimonjq would have upon her rights under the separation agreement, was expressly reserved in the decision. In Rennie v. Rennie, 85 N. J. Eq. 1, it was held in conformity to Halstead v. Halstead, supra, that, a separation agreement which stipulated the amount the husband should pay for his wife’s support afforded no impediment to awarding the wife temporary alimony in her suit; for divorce on the ground, o'f his adultery. Iu that case the payments under tire separation agreement were in arrears and the wife’s prayer for alimony pending her divorce suit was treated as an election of remedies; the additional circumstances there existed and was emphasized that the amount specified in the- separation agreement for the wife’s support was inadequate to support her and tire children of 'the marriage then in her custody. Boehm v. Boehm, 88 N. J. Eq. 74, is in point only to the extent that it suggests that the husband’s duty to support his wife flows from the matrimonial relation, and section 25 of our Divorce act imposes upon the court of chancery the duty to enforce that obligation either pending a suit for divorce or after decree of divorce. Whittle v. Schlemm (Court of Errors and Appeals), 109 Atl. Rep. 305 (disapproving Devine v. Devine, 89 N. J. Eq. 51), holds that a wife who has committed adultery subsequent to her separation agreement may recover the amount stipulated in that agreement for her support unless and until the husband shall have procured a decree of divorce against her, unless the agreement of separation shall contain a clause limiting its operation to the period of chastity of the wife.

The question here involved has been before the English courts on repeated occasions. After varying decisions based on varying grounds the court of appeals in Bishop v. Bishop (1897), P. D. 138, fully reviewed the prior decisions and finally determined in that jurisdiction the effect of a dissolution of the marriage by reason of the husband’s adultery upon the wife’s covenant-contained in a separation agreement to accept a specified sum for her support for the joint lives of the parties. It. was there held that the powers and duties conferred on the court by 20 and 21 Vic. (1857) c. 85 § 32 and 29 and 30 Vic. c. 32 § 1, as to a divorced wife’s maintenance, which statutes contemplated that regard should be had to the wife’s fortune, to the ability of the husband, and to the conduct, of the parties should not be disregarded and attention only paid to the terms of the separation agreement; that the wife cannot preclude herself by her agreement from invoking the aid of the court to obtain further maintenance in the events stated. Alimony, after divorce, was accordingly justified in amount in excess of the amount specified in the agreement. Although unnecessary to the decision of the case it was there also strongly intimated that even an express covenant of a wife contained in, a separation agreement not to sue for an amount in excess of the amount specified in the event of a divorce would be void ‘as contrary to public policy, and it was accordingly held that such a covenant could not be deemed implied by a covenant referring to the period of the joint lives of tire parties.

The powers and duties of the court of chancery of this state conferred by section 25 of the Divorce act (2 Comp. Stat. p. 2035) do not essentially differ from those conferred by the English acts referred to. Our act provides:

“Pamling a suit for divovce ©v nni'llity, ©v after decree ©f divorce, it shall be lawful for the court of chancery to make such order touching the alimony of a wife, and also touching filie care, custody, education and maintenance of the children, or any of them, as [from] the circuimstances of the parties and the nature of the case shall be rendered fit, reasonable and just.”

It seems to me to be impossible to doubt that under this statute where the wife who is without fault is awarded a decree of divorce by reason of her husband’s adultery, it becomes the duty of the court in determining the amount, of alimony to be paid to her to base that determination upon her needs and her divorced husband’s ability to pay, and to disregard the amount specified in a prior separation agreement when that amount is less than the amount that would be otherwise ascertained as “reasonable and just.”

Another circumstance exists in this case which should lead to a similar conclusion. The separation agreement is wholly silent, touching any provision for the support of the children.. The custody of these children are to he awarded to the wife. While they were in the wife’s custody when the separation agreement was made, and that fact may have been taken into account, by the parties, although no stipulation was expressly made for their support, they have since necessarily grown materially older and a source of increased expense. To that extent conditions have materially changed. The right of this court to malee suitable provision for their support is unquestioned, and an aggregate allowance for the wife ancl children would seem appropriate. The master has determined the amounts separately and exceptions have been filed only to the amount allowed to the wife. I will, in consequence, advise a similar separation, but should, I think, take into account the entire needs of the wife for herself and her children considered as a whole.

The master awarded $2,000 per year for the children and $3,000 per year for the wife. These amounts aré, in my judgment, reasonable and just. Since the master’s report was filed it has been ascertained that defendant’s income has been reduced, hut I think his present income and earning capacity sufficient to justify the amounts recommended by the master. I see no reason why defendant’s ability to augment his income by personal efforts should not be taken into account merely because he prefers to live a life of idleness. I think, also, that the bond advised by the master should be required. The exceptions to the master’s report are accordingly overruled.


author: Lewis, V. C.

text:
    Insurance Company of North America and Fire Association of Philadelphia v. Anna B. Cleveland.
    [Decided April 22d, 1920.]
    Where by mutual mistake a policy of fire insurance was issued to cover property om i'lbe nortinoesterly corner of certain streets, when it should (have read .as covering property om the northeasterly comer of the same streets, the policy should be reformed to express the contract on w’liicih the minds of the parties met. amid which it was intended by them should be reduced ,‘lo writing as 'agreed upon.
    On pleadings and proofs.

      Mr. Thomas F. McGran, for the complainants. -

      Mr. Wayne Dumont, for the defendant.
   Lewis, V. C.

On-November 9th, 1908, Phoenix Insurance Company insured a frame dwelling-house and contents of- defendant, situated on the northwesterly corner of Ridgewood and Strowbridge avenues, Tabor, Morris count}', New Jersey, for the sum of $1,500.

On November 9th, 1914, complainant Eire Association of Philadelphia issued what it terms

“a reurawal -of tli-e original policy of November 9th, ^)08, bearing the number A-6S5995 in the sum .of $1,500, $1,300 of which was placed on the dwelling- and additions thereto-, and the balance of $200 on the furniture and fix-tunes of 'the premises 'on the northwesterly comer of Rklg-ewood and Sitrowbridg-e avenue® aforesaid.” .

At'the time of the issuance of the original policy on November 9th, 1908, there was no building erected on the premises so designated. In the month of March, 1909, however, a frame dwelling-house had been erected on those premises; and on March 29th, 1909, they were insured in the sum of $2,000 by an insurance company other than the complainants, but which is not in dispute in this case.

On March 25th,, 1914, complainant Fire Association of Philadelphia insured for $1,0"00 a certain other property of defendant, situated'at 30 St. John’s avenue, Tabor, aforesaid.

On November 27th, 1916, this policy was transferred to cover the -frame dwelling situated on the northwesterly corner of Ridgewood and Strowbridge avenues, which was renewed on March 25th, 1917.

On November 27th, 1916, complainant Insurance Company of North America issued a policy of insurance for $3,500 on a frame dwelling and contents situated on the northwesterly corner of Ridgewood and Strowbridge avenues, at Tabor aforesaid.

On September 16th, 1917, the premises on the northwesterly corner of Ridgewood and Strowbridge avenues were damaged by fire, and defendant has filed her proofs of loss, and claims for reimbursement on the policies.

The complainants now allege that by mutual mistake the respective policies of insurance were drawn to cover tifie premises on the northwesterly corner of Eidgewood and Strowbridge averies, when, in fact, it was the intention of all the parties to place the insurance represented by these policies on the premises at the northeasterly corner of Eidgewood and Strowbridge avenues; and that defendant is about to commence actions at law against them upon-the policies. They pray that the policies mentioned may be reformed so as to set forth the tine intent of the parties and the contracts upon which their minds met, respectively, to the end that they may be made to cover the premises on the northeasterly corner instead of the northwesterly corner of Eidgewood and Strowbridge avenues. • »

I am satisfied from the proofs taken that it was the clear intention of the parties to effect the insurance upon the premises at the northeasterly corner of the streets mentioned, instead of the northwesterly corner, in so far as two of the policies are concerned, viz., the polic3r for $1,500 issued by the Eire Association of Philadelphia, and last renewed on November 9th, 1914, being the renewal of the original policy of November 9th, 1908; and the policy of the Insurance Company of North America for $3,500 issued on November 27th, 1916.

As to the policy of $1,000 issued by the Eire Association of Philadelphia on March 25th, 1914, on the property at 30 St. John’s avenue, and which was later transferred on November 27th, 1916, I am satisfied from the proofs presented that it was the clear intention of the parties that that should cover the premises on the northwesterly corner.

Where there is a mutual mistake equity has the power to reform a written instrument, including a policy of insurance, where the instrument does not correctly set forth the contract upon which the minds of the parties met, and which it was intended by them should be reduced to the form of a written instrument as agreed upon. Dewees v. Manhattan Insurance Co., 35 N. J. Law (at p. 371); Doniol v. Commercial Fire Insurance Co., 34 N. J. Eq. 30; Ordway v. Chace, 57 N. J. Eq. 478.

I am of the opinion, therefore, that the prayer of the complainant’s bills should be granted as to the two policies mentioned, and that those two policies should be reformed so that the premises may be described as being on the northeasterly cor-^ ner instead of the northwesterly corner of Eidgewood and Strowbridge avenues; and tlbat the defendant should be restrained from prosecuting any action at law upon them with respect to the damage alleged to have occurred to the property on the northwesterly corner; but that the prayer of the bill should he denied as to the policy for $1,000 originally placed on the property on St. John’s avenue, and later transferred to the property on tibe northwesterly corner of Eidgewood and Strowbridge avenues.

A decree may be entered accordingly.


text:
    James Christian, as trustee, &c., v. The Catholic Church of St. John the Baptist, of Paterson, N. J., et al.
    [Decided May 27th, 1920.]
    .1. If it be undesirable, impractical or contrary to' public policy to carry out a testator’s special intention regarding a charitable bequest, then, effect will be given ¡bo his general charitable intention, if presenil
    2. Where ia legacy was given to construct a fireproof building for an orphanage, and .the amount of the legacy iis mot sufficient for that purpose, the bequest miay be applied oy yres toward the construction of such a fireproof building in such manner as will most nearly effectuate, his intention.
    3. Where such application involves the appointment of a trustee to carry out .such purpose, the attormey-general of New Jersey should be brought in as a party.

      On pleadings and proofs.

      Mr. Ghauncey G. Parker, for the complainant.

      Mr. Edward F. Merrey and Mr. Edward F. Murphy, for the Rev. A. H. Stein, and the Catholic Church of St. John the Baptist, of' Paterson, F. J„ defendants.

      Mr. John M. Emery, for John D. Hinchliffe, defendant.
   Lewis, V. C.

The hill is filed by James Christian, one of the executors of the will of John Hinchliffe, deceased, praying for the instructions of the court regarding the payment of a certain legacy, and for the appointment of a trustee in relation ihereto.

The defendants in the suit are the co-executor, Rev. Dr. Anthony II. Stein; the Catholic Church of St. John the Baptist, of Paterson, New Jersey,-and" John D. Hinchliffe, who is the residuary legatee under the will.

The provisions of the will involved are as follows:

■‘Tenth.- — I give, devise and bequeath to my executors hereinafter named, all the rest, residue arad remainder of my estate, real, personal or mixed, wheresoever the same may he or of whatever the same may consist, to have and to hold -the same upon the following conditions or trust:
“(2) To pay i'Io St. Joseph’s Female Orphan Asylum, which is looated near lAnc-ioln Bridge, just beyond the limits of the City of Paterson, the sum of Fifty .thousand dollars for the construction of a fireproof orphanage building On its .property. * * *
-“(19) To make distribution of the aforesaid portions of my said estate tio the panties entitled 'thereto either in. cash or securities, iand at such times -as miy said executors may deem proper.”

Answers were filed by the respective defendants, as follows: (1) By the Rev. Dr. Anthony H. Stein, the co-executor, averring that he desires to have the legacy in question paid to the Catholic Church of St. John the Baptist of Paterson, New Jersey, the owner_of the land.

(2) By the said the Catholic Church of St. John the Baptist, of Paterson, New Jersey, asking that the executors be directed to pay the legacy to it, with interest.'

(3) By John D. Hinchliffe, the residuary legatee, claiming that the legacy should lapse and fall into the residuary estate, unless the specific purpose of the bequest is carried out.

St. J oseph’s Female Orphan Asylum is not itself a corporate entity, but is merely one of the activities of the defendant, the Catholic Church of St. John the Baptist, of Paterson, New Jersey, which is a religious corporation,' and has a building located near Lincoln Bridge, known and maintained as St. Joseph’s Female Orphan Asylum.

It is to be noted that the attorney-general of the State of New Jersey is not á party in this proceeding. I deem this unimportant, however, in the present status of the case, in view of the conclusion I have reached with regard to the payment of the legacy.

The general charitable intention of-the testator seems to have been to provide for the shelter, maintenance, education and the physical and spiritual welfare of female orphans who should be, from time to time, admitted to the- St.- Joseph’s ■ Female Oiphan Asylum, located near Lincoln Bridge, just beyond the limits of the city of Paterson, New Jersey.

The specific intent of the testator was to provide for the construction of a fireproof orphanage building on the-property of St.- Joseph’s Female Orphan Asylum, which is located near Lincoln Bridge, just beyond the limits of the city of Paterson, New Jersey; and in his will provision was made to pay to St. Joseph’s Female Orphan Asylum the sum of $50,000 for the purpose stated.

The will further provided for the distribution of the said portion of testator’s estate “to the parties entitled thereto, either in'cash or securities, and at such times as my said executors may deem proper.”

It appears that since the making of the will and the death of t¡be testator, the cost of constructing the fireproof orphanage building mentioned in the will has increased so enormously as to render it undesirable, if not impracticable, to carry out literally the specific purpose indicated by the testator in his will. The Catholic Church of St. John the Baptist, of Paterson, New Jersey, indeed, contends that the sum named would be entirely inadequate under existing conditions to construct a suitable building for the accomplishment of the purpose of the testator.

While it cannot be said that the construction of a building as designated by the testator is impossible, yet, to limit the use of the legacy to a literal carrying out of the specific purpose indicated, would be, in my opinion, highly undesirable and impracticable, because of the altered circumstances, and would result simply in the production of a building so unsuitable for 'the carrying out of the particular* purpose of the testator, as to practically defeat or nullify its successful accomplishment.

The Catholic Church of 'St. John the Baptist, of Paterson, New Jersey, has not refused its consent to the construction of the orphanage building; on the contrary, it distinctly states in its answer,.that it is willing to accept the legacy and use it for the purpose of erecting a fireproof orphanage building on its proper^. Its contention is, however, that it should not be limited to the requirement of using only the legacy of $50,000 in the construction of a building, when a suitable and satisfactory building for the orphanage purposes would, as it sees the practical situation, involve a very much greater expenditure; which additional amount, however, it is willing to supply towards the cost of the building.

Under what I regard to be' the settled law in this state, if it be undesirable, impracticable or contrary to public policy to ear^r out a testator’s special intention regarding a charitable bequest, then effect will be given to his general charitable intention, if present. Rector, Wardens and Vestrymen of St. James Church v. Wilson, Attorney-General, et al., 82 N. J. Eq. 546; affirmed, 83 N. J. Eq. 324; sub nom. West et al. v. Rector, &c., of St. James Episcopal Church of Long Branch; Mackenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652.

This bequest is clearly a charitable one, and as the general intention of the testator is ascertainable, and in view of the undesirability and impracticability of carrying out the testator’s specific intention, my conclusion is, that the bequest should be applied -cy pres towards the construction of such a fireproof building as' is referred to by the testator, in such manner as will most nearly effectuate his intention.

Opportunity will he given the parties interested, on application, to submit to this court a plan or scheme for the disposition of the said legacy in accordance with these findings.

Interest will not he allowed on the legacy in view of the provision of the will that the payment of the legacy was to be at such time as the executors deemed proper. Interest does not begin to run on a legacy until the right to receive it arrives.

Ashton v. Wilkinson, 53 N. J. Eq. 6; affirmed, 53 N. J. Eq. 227; Eberhardt v. Perolin, 48 N. J. Eq. 592.

On the application for the determining of the plan or scheme of payment, which will involve the appointment of a trustee or trustees for that purpose by this court, the attorney-general of the State of New Jersey should be brought in as a party to this proceeding.

Costs and counsel fees will be allowed the respective parties out of the fund, on application.


text:
    Cosmos Dyeing and Printing Works v. Delfiory Calderini et al.
    [Decided June 23d, 1920.]
    A preliminary injunction will be refused where it is -alleged that a Covenant in- an agreement 'of sale that the .seller will “'not engage in the piece dyeing and finishing business in the State of New Jersey or the State of- New York for a period of five years,” is violated wihen the seller is employed on a salary by .-another company in this line of business, the complainant’s right being uncertain as -a matter of law.

      On motion to modify restraint.

      Messrs. McDermott & Enright, for the complainant.-

      Mr. George W. C. McCarter, for the defendants.
   Lewis, V. C.

The motion before the court- is to modify the restraint- imposed by the order of May 27th, 1920,. on the defendant. Under date of June 10th, 1919, the defendants Delfiory Calderini and Maria Calderini then trading and doing business under the name of Eiory Dyeing and Printing Company, entered into a written contract with the complainant wherein the said defendants, Delfiory Calderini and his wife, agreed to sell to the complainant all the good-will of the business known as the Eiory Dyeing and Printing Companjg at Haledon, Passaic county, New Jersey, together with all the machinery, &e., and also the land upon which the plant stood; also the processes and formulas for piece dyeing and finishing’, secret or otherwise, relating to the said business. The consideration was $185,000, payable, $5,000 upon the signing of the said agreement, $45,000 on August 1st, 1919, at which time the real estate should be conveyed to the complainant, and the chattels transferred; $65,000 to be secured by a chattel mortgage covering the machinery, payable in monthly installments of $10,000; and final installment of $5,000 .February 1st, 1920. The balance of $70,000 to be secured by a purchase-money bond and mortgage covering the real estate, payable in three years, at six per cent.

The defendants further agreed by the said instrument “not to engage in the piece dyeing and finishing. business in the State of New Jersey ox in the State of New York for a period of five years from the 1st day of August, 1919.”

This covenant is the one now under consideration upon this application, complainant having paid all moneys secured by the chattel mortgage, and all installments of interest due upon the said real estate mortgage; and has, in all respects, complied with the terms of its contracts.

It is alleged by the complainant, that the defendant Delfiory Calderini, in violation of his agreement, did engage in the silk dyeing and finishing business with the Atlas Finishing Company, a corporation of the State of New Jersey, with works at Homestead, Hudson county, New Jersey, with a sales office in the city of New York; and that he became general manager of the said works and business; and that he has associated his son, Peter Calderini, with him in the said business.

The defendant Delfiory Calderini claims that he is simply an employe at the Atlas Works, and that his investment of $11,000 in the said works was made for his son, so that he might learn the trade and business.

The checks which were given to the Atlas company were the cheeks of the Fiory Dyeing and Printing Company, and it appears that the defendant Delfiory Calderini is in daily attendance at the works of the Atlas company; and furthermore, that while the affidavits of the defendants set forth that he was to be paid a salary there as an employe, upon cross-examination it was developed that no salary had been paid prior to the hearing on this application.

Allegations of an attempt to entice away salesmen and other employes of the Cosmos company by the defendant, and to injure the good-will of the business, are also made against the defendant Delfiory Calderini; but it will take a final hearing for the court to be satisfied as to the truth of these claims.

At the oral argument upon this, application it was agreed by the defendants that all money invested in tire Atlas company by Delfiory Calderini, in behalf of his son, would be withdrawn; and that the only question remaining was as to whether he could go there and labor as a paid employe. •

My belief is, that the court is not warranted in granting a preliminary injunction restraining the defendant Delfiory Cal•derini from working as an employe, upon the affidavits presented and the proofs taken. A very important part of the proofs offered is that by Alexander M. MacLeod, a member of the bar of this state, who represented the defendants at the time of the negotiations -between them and the complainant, and who sets forth in his affidavit that the complainant expressly objected to- the insertion of any clause in his agreement with the Cosmos Gompany, which would prevent him from going to work as an employe; and that the clause was drawn by him with this end in view.

It was urged by counsel for the complainant that the case of Fleckenstein v. Fleckenstein, 66 N. J. Eq. 252, was parallel in many respects. An examination of this ease which seems to be as close to the one under consideration'as any of our authorities in this state, discloses that the covenant included the words, “not to engage as servant or agent.” This, is not similar to the one now discussed.

There is no doubt that this court should go as far as possible to restrain a fraudulent act by the vendor in violation of his covenant; but the restraint must be reasonable, and the words of the contract carefully construed. Moreover, the rule in Kew Jersey is plainly established that where the complainant’s right is uncertain as a matter of law, a preliminary injunction will be denied. The true intent and meaning of the contract herein is a question of law, particularly when the covenant is one which may be in restraint of trade. '

In the case of Citizens’ Coach Co. v. Camden Horse Railway Co., 29 N. J. Eq. 299, Chief Justice Beasley, for the court of errors and appeals, said:

“Ko rule of equity is better settled than the doctrine that a complainant is not in a position to ask for a preliminary injunction when the right on which he founds his- claim is, as a matter of law, unsettled. * * * An injunction will not issue where the right of the complainant, which it .is designed to protect", depends upon a disputed question of law, about which there may be a doubt, which has not been settled by the courts of law of this state. * * * Such a claim cannot be assumed or decided in favor of a complainant on a motion for a preliminary injunction; for, by so doing, the case is first decided, and, afterwards, when the proofs are in, heard in its final stage.”

I am not willing on this preliminary application to say that the covenant prevents Delfiory Caldefini from working at the Atlas company. I think an order can be framed so that the rights of the complainant will be entirely protected until final hearing, and that no fraud can be practiced upon them. It is well settled, that a preliminary injunction will not issue unless the injury sought to be prevented is really irreparable. '

There is grave doubt in my mind as to whether, under our cases, the temporary restraint in the form desired by complainant is proper, for it resolves, prior to final hearing, all doubts in favor of it, and gives such -relief as it would be entitled to by a final decree. Aldrich v. Union Bag and Paper Co., 81 N. J. Eq. 244; Howland v. Andrus, 81 N. J. Eq. 175.

The affidavits before me, furthermore, do not disclose that the Cosmos company and the Atlas company are engaged in businesses that are in a large sense competing. In conclusion I may say that I do not find any case in this state which holds that a covenant in the terms of the one under consideration would prevent a man from working as an employe of a third person; and the English authorities are to the same purport.

Application to modify the restraint may be made on three days’ notice.


text:
    Henrey C. Stenneck, executor of Anna Altmann, deceased, v. Charles Kolb et al.
    [Decided June 24th, 1920.]
    1. A bequest by a. wife to a. husband lapses if he predeceases her, and the testator dies intestate as to ¡property so bequeathed.
    2. A devise of a residuum of real estate ordered to> be sold by a wife to a husband whio .predeceased her fa-i-ls, ,and there is a reconversion of the devise even though thie ¿and may have been previously sold, anid thte proceeds are to be regarded as land, and disposed of accordingly — following- the blood.

      8. Where an executor was directed to retain a sum from the sale of real property and pay the interest thereon to- A, the interest begins to r.un from the time the sale might reasonably be made.
    4. Where a will directs the sale- of real estate, the rents of this real estate from .the death of the testator until the actual sale go ilo the parties-who take the proceeds.
    On bill for construction of will.

      Mr. Matthew J. Taclcella, for the complainant.

      Mr. Tlanian Besson, for the defendants, Charles Kolb and Leopold Kolb.
   Lewis, V. C.

The testatrix, Anna Altmann, died in March, 1919. Her husband died about six weeks previously. The only heirs-at-law ■ and next of kin of the testatrix were two sons by a former marriage, namely, Charles Kolb and Leopold Kolb. In her last will and testament reference is made to her two brothers, Franz Ko-lh and Joseph Kolb, hut it is averred that they were not brothers of the testatrix, but brothers-in-law, being brothers of her first husband..

The significant portions of the will are as follows:

“Foitbth. — * * * All the -rest -and remainder of my personal property, except the -money in bank as ¡hereinafter meni'liioned, I do give rarnd bequeath imito my husband, Baisilius Altmann, for his own use absolutely and forever.
“Fifth. — I do hereby instruct and authorize my executors to sell my house .and property, known as No. 24 Van. Dyke Street, Wall-ington, N. ,T., and my real estate at Mlatudiem, N. J., as isoiom as the same can hie disposed of, but for a price mot less than'the coste thereof, which in. the case of the Wa-Hingbon property is $1800.00', and of the Mietuchen property is $750.00. For the purpose of making -such sale, my exeout'ors are hereby authorized laud empowered to isel'I ittbie igaiid .property either at public or private sale, .and to give good -and sufficient instruments of conveyance for the said property, in order to convey to the purchasers thereof -a title .sufficient iat law.
“Sixth. — Out of the proceeds of the sale of my real estate as above mentioned, my executors are directed to pay the following bequests, viz. — to my’ hustiand, Ba'silius Altmann, the 'sum of Seveu hundred ($700) doilars for his own use absolutely and forever; the sum of Fivf hundred ($500) ctoliars to my son, Leopold, whoa ¡be .arrives at the age of fo-rity years, -and until my said -son, Leoip-old, arrives .at (tllie said age of forty years, -lie sball draw itke interest of iblie- said sum of five hundred dloll'a-rs, for his -own use absolutely;" and to- my ,son, -Oblarles, who; because of the sorrow and trouble wibi-eh he has oau-sed me during my ,lifetime, and because- he is a spendthrift -and 1-azy, does n-o-t deserve -any further com-sideirati’pn from me, the sum of One dollar.”

By the death of the husband, Basilins Altmann, before the testatrix, the bequests to him lapsed, and our statute, in this respect, does not prevent the lapsing, the husband not being included in its provisions. 4 Comp. Stat. p. 5866 § 22.

The question that arises, therefore, is what disposition shall be made of the property of the testatrix, which otherwise would have gone to. the husband had he not predeceased the testatrix.

As will he seen, the wall first deals with a portion of the personal propertjq the residuum of which, after the .payment of certain specific legacies,, went to the husband.

It is the well-settled law of this state, that this residuary clause, having lapsed, and there being no- other provision in the will for its disposition in such event, the testatrix died intestate as to that portion of her estate, and it will follow the intestate laws, and he divided equally between her two sons, Leopold and Charles.

The will also provided for the payment of $700 to the husband out of the proceeds of the sale of the real estate of the testatrix.

It is to be observed, that, although the testatrix directed and authorized the sale of her real property, yet such sale was only to be made in case a certain price could be obtained, which might have some significance upon the question of whether or not this provision of the will produced an equitable conversion of the real estate, hut however that may be, the law is well settled that where the purpose of the devise fails, then there is a reconversion, and even though the land may have been previously sold, the proceeds are to be regarded as land, and disposed of accordingly — following the blood.

Whether, therefore, tire lapsed bequest of $700 to the husband is to- he regarded as realty or personalty, its devolution would be the same, in this instance, because the two sons, Leopold and Charles Kolb, are the heirs-at-law as well as the next of kin of the testatrix, and they consequently will take. Roy et al. v. Monroe et al., 47 N. J. Eq. 356; Molineaux v. Raynolds et al., 55 N. J. Eq. 187.

The result is, that the sons, Leopold and Charles, also take the lapsed bequest of $700.

The "will also provides that out of the proceeds of the real property the executor is to retain the sum of $500, and pay the income thereof to Leopold Kolb until he arrives at the age of forty years, when he is to receive the principal sum.

The executor is in doubt as to whether interest should be paid on this sum as of the date of the death of the testatrix, or only after the sale of the real property, which is the source, of the fund.

The rule is stated tó be in 4-0 Cyc. 2102, as follows:

'‘WdMii'e legados aire directed t© be piaSd ©nit iof tibie paioceeds of tbe sale of property, and no time is directed by will for making tibe sale, tbe weight of tihe aratibority is tibait tibe legacies bear interest from tbe time when, the sale might reasonably ibave been made.”

In view of the provision of the will prohibiting the sale of real estate' of the testatrix, unless a certain price can be obtained, it is clear that no sale can reasonably be made until such price is obtained. Of course, reasonable efforts should be made to effect, a sale of the property in accordance with the terms of the will. If this be done then interest on the fund of $500 will not start to. run until the sale has been accomplished and the proceeds axe available for the purpose indicated.

The executor is also in doubt as to. who is entitled to receive the rents collected from the real property ‘until a sale is consummated.

“When the will directs the sale of real estate, the rents of 'the estate between the death of the testator and- the actual sale go to the parties who take the proceeds.” Wright v. Church, Hoffm. (N. Y.) 202; Ingrem v. Mackey, 5 Redf. Surr. (N. Y.) 357; 9 Cyc. 850.

At the time of the death of Basilius Altmann, the husband of the testatrix, he was insured in the Traveler’s Insurance Company in the sum of $500. The insurance company has paid this money to the complainant as executor of the estate of Anna Altmann. There are no children of the marriage between Anna Altmann and Basilius Altmann. This forms part of the estate of the testatrix, and, having vested in her ‘prior to her death, it forms part of her residuary personal estate, and now passes to her two sons, Leopold and Charles, as her next of ldn, under the intestate laws, as heretofore indicated.

Finally, the costs of administration, and counsel fees obviously should be paid out of the estate in the hands of the executor.

A decree will be advised in accordance with these views.


text:
    Marie Schmidt v. Schmidt Realty and Construction Company et al.
    [Decided June 30th, 1920.]
    1. On- a suit to foreclose a mortgage, held that the 'adjustment of litigation between the parties, 'and the sumrenidier of certain, stock, constitute a legal, and valid consideration, for the mortgage sought to be foreclosed.
    2. Held, further, that the giving of .another mortgage to the trustee of the complainant was only to provide 'additional secuiiity for fhje complainant, and did not pay or extinguish the mortgage sought to be foreclosed iu this suit, and that the Complainant is entitled to a decree for the amount proved due on her mortgage in this suit.
    On pleading and proofs.

      Messrs. McDermott & Enright, for the complainant.

      Mr. Philip ZaUcincl, associated with Mr. Isaac P. Goldenhorn, for the Schmidt Bealty and Construction Company, defendant.

      Messrs. Lu-m, Tamblyn & Colyer, for William Solomon, and also for Albert A. Baphael, trustee in bankruptcy of Schmidt Bealty and Construction Compaq, defendants.
   Lewis, V. C.

This is a bill to foreclose a mortgage of $20,000, made by the defendant, Schmidt Bealty and Construction Company, to the complainant, Marie Schmidt, dated June 8th, 1908, and payable June 19th, 1914, with interest at five per cent. Interest was in arrears for a long period. Foreclosure was resisted upon the grounds that the mortgage was without legal consideration, and that, aside from this contention, it had been satisfied and discharged.

Prior to the execution of the mortgage under foreclosure, complainant claims she placed the sum of $27,00.0 in the hands of the Schmidt Bealty and Construction Company for the purpose of purchasing certain real estate, title to which was to be taken in complainant’s name, but which was actually taken in the name of the Sclhimidf Bealty and Construction Company. The present complainant thereupon brought suit to set aside the title in the company’s name and to have it decreed to be in her personally, claiming that under these circumstances a trust resulted in her favor, and that the company should be held to hold the land thus purchased with her funds, as trustee for her benefit.

Subsequently that case was settled between the parties; a lis pendens that had been filed was canceled; releases were executed; all the stock in the Schmidt Bealty and Construction Oompány held by the complainant was surrendered by her to the company; and at that time tire mortgage now under foreclosure was executed bjr the company in favor of the present complainant, securing a bond in the sum of $20,000.

The complainant contends that tire adjustment.of the preceding litigation, and other litigation affecting the company, then pending in other courts, and the surrender of the stock, constituted the consideration for this mortgage, and that it is a legal and valid consideration. The execution and delivery of the bond and mortgage involved are not questioned. Neither do the defendants question the calculation of the amount due thereon, as submitted by the complainant, so far as the accuracy of the calculation is concerned; but interpose their legal objections to the validity of the mortgage itself.

According to the calculation submitted, there was due on the mortgage the principal of $20,000, upon which, however, defendants were entitled to credits amounting to $9,870, leaving a balance due on principal of $10,130, with accumulated interest thereon of $4,933.33, making a total of $15,016.33, for which sum final decree was rendered in favor of complainant.

The mortgage under foreclosure originally covered a tract of about one thousand lots, situated at Maywood, Bergen county, New Jersey, and was, at the date of its execution, subject to a first mortgage on said lands of $30,000, held by one Anderson.

About one hundred and forty-four lots were subsequently released from the Anderson mortgage, and as to those lots complainant’s mortgage became a first lien.

Anderson’s mortgage was foreclosed by George P. Eust, to ‘whom it had been assigned. Complainant’s mortgage was then held by Archibald C. Hart, as trustee for the present complainant; and the Schmidt Realty and Construction Company and Hart were made defendants in the Eust foreclosure suit. A final decree was entered in that suit in favor of: first, George P. Eust for $35,226.92; second; E. Max Applegate for $799.41; third, Archibald C. Hart for $18,250.84, all with interest and costs against the Schmidt Realty and Construction Company, .to be raised and paid out of the lands covered by the Eust mortgage.

The property was purchased at the sheriff’s sale by William Wernple and A. C. Hart, for the.sum of $37,678.67, which was slightly less than the amount due on the Rust mortgage, and which left the Applegate mortgage, and complainant’s mortgage, wholly unpaid.

To finance this purchase Wernple and Hart organized a corporation known- as the Maywood Company; the incorporators being Wemple, Hart, Robert D. Kent and W. Howard Mears, and Edward E. Sackett. This new company executed two first mortgages to the Guarantee Mortgage and Title Insurance Company, one for $23,000 and one for $12,000, a total of $35,000. Hart and Wemple personally guaranteed payment by joining in the bond.- To make up the difference they borrowed $8,646.19 from the Merchants' Bank of Passaic on their personal note, secured by mortgage.

To protect Marie Schmidt, the present complainant, whose then solicitor was A. C. Hart, one of the purchasers at the sheriff's sale, the Maywood Company executed a mortgage to A. C. Hart- as trustee for Marie Schmidt for $19,113.34, which represented the amount then due on the original mortgage which is now under foreclosure.

. The mortgage last referred to contained the following recital:

“Tlhis mortgage is intended to be -a lien upon the premises in question second only to the 1-ietn of two mortgages aggregating $35,000, one upon a part of the premises in question, -and the other upon the balance thereof. It is covenanted -and- agreed between the plaa-tites in this mortgage, and the bond laoco-mpiaraying- it, that, whereas ¡the -miarigagie-e, as trustee, but appearing individually in mortgage hereinafter mentioned, -at the present time possesses a mortgage upon i-ealty given as security for the payment of the principal before described in this mioirifgiage and the bond accompanying it upon other realty than that described herein, should the party of the second p-art receive -any payment from such other realty or from -any -other source upon said bond -a-nd nnontg-age it is to- be credited upon the principal of this mortgage and the bond accompanying.”

It seems clear from this recital and the evidence in the case, that it was not the intention of the parties that the last mortgage was given in pajnnent of the mortgage now under foreclosure; hut that it was simply intended for the further protection of the complainant.

The evidence further establishes that the Maywood Company mortgage was subsequently satisfied by the payment of $6,000, and that complainant has received from releases and sale of certain of the lots covered by the Maywood Company mortgage the sum of $1,140; and from releases on the sale of lots covered by the mortgage under foreclosure the sum $2,730,: making a total, as heretofore indicated, of $9,870, for which credit has been given upon the amount claimed to he due on the original mortgage, which is the one now under foreclosure.

I am satisfied from the proofs presented that the defences interposed cannot be sustained, and that, in this suit, which is simply for the foreclosure of the mortgage in question, complainant is entitled to her decree for the amount shown to be due in the calculation referred to.

A decree will be advised in accordance with these views.


author: Backes, V. C.

text:
    Joseph W. North & Son, incorporated, v. Herbert S. North et al.
    [Argued April 27th, 1920.
    Decided May 9th, 1920.]
    1. Where it is sought ito- muMi a complainant twice in damages for breadlas of covenants involving the same subject-matter, resulting in a single injury, equity will protect against such evil consequences.
    2. IDo invoice such relief the bill must he framed tto show with certainty and defmiiitentes ithie double liability as to amount amd pienso», and must be established by saitisfiaetory proof.
    On petition for habeas corpus.

      Messrs. Lum, Tamblyn & Golyer {Mr. Ralph E. Lum, of counsel), for the complainant.

      Mr. Abe J. David, for the defendants.
   Backes, V. C.

Forth, the defendant, sold his factory and business to the promoter of the complainant corporation. The complainant’ agreed to fill all orders for merchandise on the books of Forth, and further covenanted that

“the said comipiamy, however, in any amid every event .agrees to save harmless 'and dndemindfy the said North from any and all liability or loss or damage by reason, of said orders mentioned in said schedules number 1 and 2 for the nioni-fulfillmeint thereof or «my .matter 'or thing connected therewith.”

The complainant failed to fill the orders and North sued and recovered a judgment for $20,000 on the covenant to “indemnify the said North from any and all liability.” The total liability was in excess of $20,000 but the trial court limited the verdict to that sum because of the ad damnum for that amount. The complainant appealed, and in lieu of a bond deposited with the Elizabeth Trust Company $21,500, to be turned over to North, and to be applied by him in satisfaction of the judgment, in the event of an affirmance. The judgment was affirmed. North v. North, 108 Atl. Rep. 244.

The complainant is also liable to the customers of North by reason of its undertaking to fill their orders (Comp. Stat. p. 4059 § 28; Joslin v. New Jersey Car Spring Co., 86 N. J. Law 141; Chambers v. Philadelphia Pickling Co., 79 N. J. Law 1; Collier v. DeBrigard, 80 N. J. Law 94), and the avowed effort of the hill is to compel Nortli to apply the moneys in the hands of the trust company in discharge of that liability. ■ The moneys are impounded by a restraining order pendente.

The proposition that the complainant ought not be twice mulcted in damages for breaches of covenants involving the same subject-matter and resulting in a single injury, ;and that equity will protect against such evil consequences, is sound in principle and. supported by authority. Loosemore v. Radford, 9 M. & W. 657; Sparkman v. Gove, 44 N. J. Law 252. But the complainant is not entitled to relief under the hill as framed. The conception of the complainant’s rights, as therein declared, is, that North’s judgment is in the nature of a trust fund, to be applied, from time to time, in satisfaction of claims established at law against the complainant by the customers of North, who may see fit to sue, and that any surplus reverts to the complainant. So are the prayers. The theory is manifestly inadmissible, and the bill, in text and supplication, clearly overestimates the jurisdiction exercised by equity over judgments at law in circumstances of this kind. It is not 'the province of this court to stay or in any manner interfere with the execution of the judgment of the supreme court. That judgment is a finality and the award must be yielded to North, and in full; in his own right, not in trust. There is no trust and chancery cannot create or impress one.

The privilege of the complainant is a bare equity of appropriation of the proceeds to the extinguishment of his dual liability so far as they may be necessary for that'purpose, and no more, and to invoke that equity the complainant must point out with certainty and definiteness the double liability, as to amount and person, and establish it by satisfactory proof. The allegation of the bill “that the complainant is advised and alleges that under the terms of the agreement between the complainant and said North this complainant is also liable to certain of tire persons named in the schedules 1 and 2 annexed to Exhibit ‘A/ ” is too ambiguous, and even as to that vague allegation there is no proof to sustain it.

Belief, as sought by the bill, will be denied with costs, with leave to amend in conformity with "the views herein expressed. When at issue the case will be set down for further hearing.

The cause was tried upon the false theory of the bill, and under its influence the defendant North established a recovery against him by one Gutman for a large sum, against the liability of which the complainant had insured him. This was not controverted, and the restraining order will be modified to release enough money to pay the judgment.

An allowance, out of the fund, was asked for fees and expenses incurred by North in various litigations flowing out of breach of the main contract. The view I entertain and have expressed of the limitations upon the complainant’s right to relief precludes consideration of this request. The request altogether overlooks tire fact that North’s judgment was recovered exclusively upon the breach of the complainant’s covenant of insurance against liability, and that North is entitled to recover the full amount of his judgment, subject only to the equitable duly of applying as much thereof as may be required to discharge the complainant’s double liability that may be established and decreed in this suit.

The defendant North set up in bar to relief that the complainant deposited the 'fund with, the Elizabeth Trust Company under an agreement that it should be paid to him upon the affirmance of his judgment, and that this promise was an original undertaking and wholly independent of the equity npw invoked, and a waiver. Beading the contract in the light of its recitals leaves no doubt that the fund was posted, solely, as a convenient makeshift or substitute for an appeal bond, with all rights and equities unimpaired. Another and conclusive answer to tins plea is that had the terms of the agreement, in fact, been executed, and the moneys paid to North, the equity of the complainant would have survived, and he could have been decreed to appropriate the money so paid over to him.


text:
    Henry J. Klein, petitioner, v. Adelia Klein, defendant.
    [Decided May 26th, 1920.]
    Where a husband has made advances to a deserting wife to induce her to return to Mm, which .advances she repulsed, stating that she was through with him, 'such desertion i.s 'obstinate, and the petitioner is entitled to a divorce for desertion.
    On exceptions to master’s report.

      Messrs. McDermit & McDermit, for the exceptant.
   Backes, V. C.

This is a petition for divorce on the ground.. of desertion. The master reported adversely, to which exceptions were filed. The proofs show that the parties were married July 1st, 1903, and that they lived together in tins state until October 27th, 1916, when the defendant deserted the petitioner and his home in Manasquan. There had been, for years, discord and unhappiness, and she had deserted him on two previous occasions. In their quarrels, upon one occasion, she stabbed him with a hat pin, and another time, in an altercation, shot off his little finger. At the time of the present desertion, after some dispute, the defendant left, leaving a note as follows: “October 27th, 1916. Henry, good by. This is the last time i will bother you. Delia.” The petitioner remained at his home in Manasquan three months and then moved to New Brunswick and afterwards to Newark, where he now resides. He sought his wife among her friends and 'acquaintances, but without success. In September, 1917, .he met her on the street in New Brunswick and requested her to return; she swore at him and refused. Within a week or two after he called at her aunt’s house, where she was living, and again asked her to return, with the result that she again swore at him and shut the door in his face.- Later he sent his brother-in-law .to intercede and she again declined, saying she “did not want to have anything to do with him.” To the same brother-in-law, when she was leaving at the time of the desertion., in response- to his query “Where are you going, Delia?” she said “I am .going away.”

In my opinion the proofs make out a clear case of willful, continued and obstinate desertion. The master, it seems, was of the opinion that the petitioner did not make proper advances to his wife, and' that the desertion was not obstinate, that is, it was not against the will of the petitioner, for, as it appeared to him, the petitioner was content to have the separation continue after his efforts in September, 1917, and to support this latter view the master adverts to a statement made by the petitioner to his brother-in-law about that time, that he was through with his wife. What the brother-in-law testified to was, that when he reported to the petitioner that his wife would not return to him, “He said something to the 'effect that if she was through with, him that he was through with her.” This was a perfectly natural and spontaneous outburst under the circumstances, and meant no more than that if the wife had finally and irrevocably settled upon a permanent abandonment, he would make no further effort toward a reconciliation.

The desertion was willful. The wife left of her own accord. Her leaving was in nowise induced by the conduct of the husband. He was not at all blamable for the desertion. I question whether, under the circumstances, there was any duty imposed upon him to make advances to his wife to have her return, hut if there was, he discharged it in full measure. Bowlby v. Bowlby, 25 N. J. Eq. 406. He was excused from making any further efforts after he was so ineontinentally repulsed in September, 1917, for, it is quite apparent that they would have been unavailing. Hall v. Hall, 60 N. J. Eq. 469.

The exceptions will he sustained and a decree of divorce advised.