text:
    Mabel Johnson v. George Johnson.
    [Decided April 10th, 1911.]
    1. If a rape he committed by a husband his wife may have a divorce from him on the ground of adultery, for in the law of divorce adultery is the voluntary sexual intercourse of a married person with one not the hnsband or wife of that person; therefore, rape is adultery on the part of the man. although not so on the part of the woman who is carnally known forcibly and against her will.
    2. To an indictment against him for rape the accused pleaded non vult. The rape laid in the indictment is the adultery charged in the case at bar, and the plea of non vult was admitted in this cause to affect the credibility of the defendant as a witness, which it does in a twofold aspect — first, it affects his credibility generally upon the principle that a man who would commit a crime would tell an untruth; and second, that as the particular crime to wdiich he pleaded involves the identical facts which are the basis of this collateral proceeding, more and greater discredit attaches to the witness, who now says he did not commit the act, when, on his arraignment on indictment as for a crime in committing the same offence he admitted this guilt (for such was the effect of his plea in the criminal court), instead of protesting his innocence as here.

      3. The question of the extent of the discredit attaching to a witness is one for the court whose province it is to consider and determine the issue; it is a question of fact, not of law.
    4. Quiere. Can the defendant’s plea of non vult to the indictment be received substantively on the issue in this case, as an admission of the truth of the charge against him, irrespective of the discredit attaching to him as a witness.
    5. If a party accused of adultery prove that the accuser, having probable knowledge of the offence committed, afterwards has voluntary sexual intercourse with the accused, the accuser shall not obtain a divorce for the adultery thus condoned.
    6. The rule that pardon may be implied from sexual intercourse is not enforced so rigorously against a wife as it is against a husband, and the reason is that the wife, to a considerable extent, is subject to and dependent on her husband, and his guilt is of less consequence to her than her guilt is to him; and if the wife voluntarily has sexual intercourse with her husband while entertaining a belief of his guilt, which belief is the product of suspicion only and not of evidence, it is not a condonation of the offence.
    7. Where the wife seeks a divorce against her husband'on the ground of adultery, if she, having knowledge of the adultery, or reason to believe it, continues voluntarily to have sexual intercourse with him, it constitutes a condonation of the offence, and she is not entitled to a divorce.
    8. The petitioner in this cause having voluntarily had sexual intercourse with the defendant while he was incarcerated in the Flemington jail, both before and after he, to her knowledge, had pleaded non vult to the crime of rape, which sexual act constitutes the adultery charged in this case, and after the mother of the girl who was raped had told the petitioner all about the affair (and the mother had heard all from her daughter), and who, petitioner, was thus in possession of all the evidence of her husband’s offence which she afterwards used to establish his guilt in this court, she must be held to have had reasonable knowledge of the adultery committed by the defendant, and to have believed him guilty, and, therefore, to have condoned his offence.
    On final hearing on pleadings and proofs.

      Mr. Paul A. Queen, for the petitioner.

      Mr. Ellis L. Pierson, for the defendant.
   Walker, V. C.

This is an application for a divorce for adultery. The parties were married February 24th, 1904, and the charge is that the defendant committed adultery on May 1st, 1906, with a girl fourteen or fifteen years of age. The offence was a rape, for which the defendant was apprehended, and on a plea of non wilt, was sentenced to six years in the New Jersey state prison, where he is confined.

For a rape committed by a husband, a wife may have a divorce. In the law of divorce adultery is the voluntary sexual intercourse of a married person with one not the husband or wife of that person. 1 Bish. Mar., D. & S. § 1502. Therefore, rape is adultery on the part of the man, although not so on the part of the woman who is carnally known forcibly and against her will. It is so treated in the criminal law, and by every process of right reason should be, and I believe is, so treated in the law of divorce.

The supreme court of Iowa in State v. Sanders, 30 Iowa 582, said:

“To constitute the crime of adultery as against the man, the consent of the woman to the carnal intercourse is not indispensable, but the offence may, as against him, exist, though the connection was effected by force and against her will.”

In Commonwealth v. Bakeman, 131 Mass. 577, the supreme judicial court of Massachusetts said (at p. 578) :

“When a crime charged is one which consists in the concurrent act of two or more, such as conspiracy, such joint action must be alleged and proved. But adultery is not such a crime. One person may be alone guilty of it. The act of sexual intercourse, by a married man with an unmarried woman, or by an unmarried man with a married woman, is adultery in the man without regard to the guilt of the woman. It is an act committed by him, between him and the woman, although she is not the criminal or conscious participant. And it is not less adultery that it is also rape. The offences are different in the nature of the wrong done, and in the facts which constitute them. Neither includes the other; and a defendant may be convicted of either without allegation or proof of some fact essential to the other. Carnal knowledge of a woman is the fact common to both; if it is with force and against her will the crime is rape, and the fact that she is married is immaterial; if she is a married woman the crime is adultery, and the fact that it is by force is immaterial. That a man cannot commit rape upon a married woman without also committing adultery, only shows that he commits both crimes by one act which includes all the elements of both.”

The guilt of the defendant in the case at bar clearly made out. The proof came from the young girl who was raped; the physician who examined her after the act and other corroborating circumstances.

For the crime mentioned, the offender was indicted and pleaded non milt. That fact was elicited from the defendant on his cross-examination ; and the question is, what is the effect of that plea in this case ?

Now, the plea of non vuli interposed by Johnson to the crime of rape is a confession amounting to a conviction. In State v. Henson, 66 N. J. Law (37 Vr.) 601, Mr. Justice Yan Syckel, speaking for the court of errors and appeals, adopts the distinction between the terms “conviction” and “judgment,” made by Mr. Justice Gray of the Massachusetts supreme court, as follows:

“The ordinary legal meaning of conviction, when used to designate a particular stage of a prosecution triable by a jury, is the confession of the accused, in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while judgment or sentence is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained.”

And, again, in State v. Henson, speaking of the effect of a plea of non vult, Mr. Justice Yan Syckel says (at p. 609) :

“In our supreme court, in a case decided in 1881, and not since called in question, it is held that a plea of nolo contendere is equivalent to a -plea of guilty, the only difference in the significance of the two pleas being in the force each has upon a collateral proceeding. Peacock v. Hudson Sessions, 46 N. J. Law (17 Vr.) 112.”

The defendant’s plea of non vult to the indictment for rape was certainly admissible in this case to discredit his testimony when he took the stand in his own behalf; but, was it also admissible as being a declaration contradictory to his statement that he was not guilty given in evidence, on oath, in this cause ?

In Hill v. Maxwell, 77 N. J. Law (48 Vr.) 766, the court of errors and appeals held such a plea (non vult) to an indictment to be evidence in a civil suit to affect the defendant’s credibility as a witness, but left undecided the question whether the plea extended to contradict anything previously testified to by the witness.

Mr. Justice Van Syckel, in his opinion in the Henson Case, ubi supra, 66 N. J. Law (37 Vr.) (at p. 609), said:

“The books agree that the only advantage the defendant obtained by this plea (nolo contendere) is that he is not estopped to set up his innocence in an action based upon the same state of facts.”

The effect of the plea under discussion is well stated in 12 Cyc. (at p. 354), as follows:

“A plea of nolo contendere, which is still allowed in some jurisdictions, is an implied confession of the crime charged, and as regards the case in which it is entered, is equivalent to a plea of guilty, except that it gives to the accused the advantage of not being estopped to deny his guilt in-a civil action based upon the same facts as he would be upon a plea of guilty.”

The difference between the plea of guilty or non vult to an indictment was, and is, that the former estopped the defendant from entering a plea of not guilty in a civil suit based upon the same facts, but the latter plea would not estop the defendant from having his plea of not guilty; in other words, of trying the issue out with his adversary in the civil suit. Formerly, the plea of non vult was not admissible in evidence in the civil suit because it could have no effect.

The defendant could not be a witness in his own behalf, and not being a witness, he was not subject to impeachment. Now, however, the defendant may be a witness, and, taking the stand and being sworn and testifying in his own behalf, he subjects himself to all the rules of evidence in regard to witnesses, and his character may be impeached and his credibility may be affected by any evidence that tends to discredit him. Disque v. State, 49 N. J. Law (20 Vr.) 249; Crosby v. Wells, 73 N. J. Law (44 Vr.) 804.

Tims we see that the law which formerly prevented the admission of a plea of non vult in evidence has been changed so that the plea is now admissible under certain circumstances, namely, to impeach a witness. The maxim “cessante rations, cessat ipsa lex” would seem to apply; and, as an illustration, there are apposite remarks of the supreme court to be found in Powers v. Totten, 42 N. J. Law (13 Vr.) 442 (at p. 445), to the effect that the reason of the law ceasing, the law itself ceases. Still, it is unnecessary to decide in this case whether the plea of non vult may be used substantively on the issue as a declaration of the defendant contrary to his sworn statement herein, or, in other words, as a confession of guilt, for there is abundant evidence in the cause to establish his guilt, without such resort to the plea.

In this case I will coniine the effect of the defendant’s plea of non vult to the affecting of his credibility as a witness, but, I desire to sajr, that in that respect it has a twofold aspect — first, is affects his credibility generally upon the principle that a man who would commit a crime would tell an untruth, and second, that as the particular crime to which this defendant has joleaded involves the identical state of facts which are the basis of this collateral proceeding, more and greater discredit attaches to the defendant, who, in this cause, says he did not commit the act, when, as we have seen, on his arraignment ou indictment as for a crime in committing the same offence he admitted his guilt (for such was the effect of his plea in the criminal court), instead of protesting his innocence as here. The question whether his plea of non vult can be received as an admission of the truth of the charge against him; irrespective of the discredit attaching to him as a witness, is, therefore, left undecided, as was done by the court of errors and appeals in Hill v. Maxwell, ubi supra.

j. There can be no doubt that the question of the extent of the discredit attaching to a witness is one for the jury, or for the court when that tribunal is to pass upon the issue, as in this case. It is a question of fact, not of law.

Said Mr. Justice Van Syckel, for the court of errors and appeals in State v. Henson, 66 N. J. Law (37 Vr.) 601 (at p. 606):

“The act of 1874 does not submit to the court, as a question of law, whether the crimes charged should affect credibility; it is a question for the jury, whose province alone it is to say j;o what extent, if any, credibility shall be affected. Proof of previous conviction of crime is not, and cannot be, offered or considered to establish the guilt of a prisoner on his trial; its only purpose and object is to affect the credit to be given to his own testimony voluntarily offered by him on his own behalf.”

It should be noted that in the Henson Case the plea admitted to affect credibility was of and concerning a crime other than the offence for which the defendant was then on. trial, and therein that case differs from this case. State v. Henson, in my opinion, does not. militate against the theory that if a plea of non vult to a crime be received in evidence to affect the credibility of a witness, who is a party, in a case in which the facts constituting the crime also constitute the gravamen of the cause in which the plea is admitted in evidence, that that plea may also be given effect as a declaration by the party contrary to the one then made by him as a witness. This question, however, as already remarked, I do not decide.

•The defence relied upon in the case sub judice is condonation, and it is made out by proof of the fact that after the defendant was arrested and lodged in the Elemington jail his wife visited him and had sexual relations with him there, even after he had, to her knowledge, pleaded non vult to the indictment and had received his sentence.

In Delliber v. Delliber, 9 Conn. 233, it was held:

“A conviction of the husband of adultery is sufficient notice to the wife of his having committed that offence.

“Therefore, where the husband had been convicted of adultery, and his wife afterwards lodged with him in prison, two or three nights, she knowing, at the time, of his having been thus convicted; and during those nights, she had sexual intercourse with him, it was held — first, that she had probable knowledge of the offence, and second, that these facts were a defence to a petition for divorce brought by her.”

With us, as in Connecticut, condonation will be held to have taken place if .the injured party has sexual intercourse with the guilty one after probable knowledge of the latter’s offence.

Said Chancellor Green in Marsh v. Marsh, 13 N. J. Eq. (2 Beas.) 281, 282:

“Condonation may be implied if tbe husband, after reasonable knowledge of the infidelity of his wife, continues to admit her as the partner of his bed. * * *

“Reasonable knowledge majr be said to have been had when information of a fact is given by credible persons, speaking of their own knowledge, particularly if the same facts be afterwards proved. * * *

“If, the party accused of adultery shall prove that the accuser, before the commencement of the suit, had probable knowledge of the crime committed, and yet afterwards cohabited with the accused, in such case the accuser shall not obtain a sentence of divorce for the crime that shall be supposed to have been remitted.”

The rule that pardon may be implied from sexual intercourse is not enforced so rigorously against a wife as it is against a husband, and the reason is, that the wife, to a considerable extent, is subject to and dependent on her husband, and his guilt is of less consequence to her than her guilt is to him (Shackleton v. Shackleton, 48 N. J. Eq. (3 Dick.) 364), and while the fact that a wife voluntarily has sexual intercourse with her husband while entertaining a belief of his guilt, as the product of suspicion and not of evidence, is not a condonation of the offence (Ibid.), nevertheless, where the wife seeks a divorce against her husband on the ground of adultery, if the wife, having knowledge of the adultery, or reason to believe it, continues voluntarily to live with her husband, except for imperative reasons, it constitutes a con-donation of the offence, and she is not entitled to a divorce. Stevens v. Stevens, 14 N. J. Eq. (1 McCart.) 374. Equally so, 1 take it, if the wife continues voluntarily to have sexual intercourse with him, after knowledge of the adultery, or reason to believe it, whether she lives with him or not.

Certainly there were no imperative reasons compelling this wife to have sexual relations with her husband in the Flemington jail. If there be any place in which a wife may successfully resist the control of her husband, and be free from restraint, it would seem to be in a jail where he is a prisoner, and she a visitor, and if, in such an institution under such circumstances, an attempt was made to force her to submit to the sexual act against her will, her outcries would undoubtedly have brought assistance, and saved her from the undesired embraces of her husband. It would appear from her testimony that there were always jailors about, for she said that they allowed her to stay in the jail as long as she wanted to unless they were going away, and then she would have to go out. Undoubtedly, there was always someone within hailing distance. Furthermore, she does not assert that she was ever forced by her husband in the jail, and it abundantly appears that her sexual commerce with him there was entirely voluntary on her part.

As to the facts: On the night of the day that the defendant committed the rape, he came home very late and told his wife that somebody had committed a rape, and that it was laid on him and a constable was after him. He said he was not guilty, but he ran away to avoid arrest, and remained away about a week, when he returned and was apprehended. This was early in May, and he was taken immediately to Flemington jail where he remained until the next September when he was indicted, pleaded non vult, and was sentenced to the state prison. About a week after the defendant was accused of committing the rape, the petitioner had a conversation with the mother of the girl who had been outraged, and the girl’s mother told the petitioner all she knew about the affair, and she had heard all from her daughter. This was just after the defendant was arrested and while he was in jail. During the summer of his incarceration in Flemington the petitioner visited the defendant in jail, remaining with him alone for hours at a time in a reception room in which there were two cots, and sometimes in his cell. She says they had sexual intercourse in the jail several times before the defendant pleaded. She says that she did not believe him to be guilty until some time after he had gone to the state prison. However, she did not come into the possession of any new facts after the defendant was sentenced.

In her direct examination these questions and answers are to be found:

“Q. Did your belief in his innocence continue up to the time and after he was arrested?
“A. Tes, sir; until he left the jail up there at Flemington.
“Q. After he left the jail up there and came down to state prison, did you believe he was guilty?
“A. Well, I thought he must be guilty or he would not have went down there; he would not have pleaded to what he did and went down there.”

And in her cross-examination :

“Q. Do you remember the day that your husband pleaded non vult to the crime of rape?
“A. Yes, sir.
“Q. And he was sentenced that day, wasn’t he?
“A. Yes, sir.
“Q. You spent a long time in the jail with him after he was sentenced, didn’t you?
“A. Yes, sir.
“Q. And that was, you thought, your last visit to him before he came to prison, didn’t you?
“A. Yes, sir.
“Q. And on that occasion you had sexual intercourse with him, didn’t you?
“A. No, sir, not that I remember.
“Q. If, however, he says that you did, you will not deny it, will you?
“A. No, sir; but I don’t remember that time.”

After so testifying, and doubtless seeing the force of what she said, she then denied point blank having had sexual intercourse with her husband in the jail after he pleaded non vult and received his sentence.

However, in view of her admissions that their sexual intercourse was quite frequent in the jail during his incarceration, and of his testimony that they enjoyed coition on the occasion of her last visit, which was after his plea and sentence, and of the further fact that they were alone together in the jail on that occasion for a long time and had abundant opportunity to gratify their sexual appetites, I have no hesitation whatever in arriving at the conclusion that they performed the conjugal act, with her consent, even after he, to her knowledge, had pleaded non vuli to the crime of rape, and when she belived him guilty of the offence.

The defendant’s guilt of adultery has been clearly established by legal evidence; but, the defence of condonation being made out, petitioner’s prayer for divorce must be denied.

CASES ADJTJ3X3ED IN THE PREROGATIVE COURT OF THE STATE OF NEW JERSEY. FEBRUARY TERM, 1911.


source: Caselaw Access Project

author: Pitney, Ordinary.

license: Public Domain

text:
    Mahlon Pitney, Ordinary.
    Edwin Robert Walker, Vice-Ordinary.
    Virginia M. Woolsey, respondent, v. Frank Woolsey and James P. Northrop, surviving executors, &c., of Charles A. Woolsey, deceased, and Eugene Woolsey, appellants.
    [Decided June 6th, 1910.]
    1. Decrees of the orphans court, in the exorcise of its statutory- jurisdiction over matters of accounting and distribution, are as conclusive as are decrees of a court of chancery.

      2. Where a decree was rendered settling the accounts of executors and trustees under a will, at a time when the interests of certain contingent remaindermen had not arisen because of the non-occurrence of the event on which their interests were to vest, such remaindermen were held to have been represented by the executors who were likewise their trustees, and hence were concluded by the decree.
    On appeal from a decree of the Hudson county orphans court.

      Mr. Charles L. Garrick, Mr. Maximilian T. Rosenberg and Mr. Robert H. McCarter, for the appellants.

      Mr. Richard V. Lindabury, for the respondent.
   Pitney, Ordinary.

This was a suit in the orphans court brought by Virginia M. Woolsey against the surviving executors of Charles A. Woolsey, deceased, under P. L. 1898 p. 787 § 192, for the recovery of a balance of $8,000 and interest, claimed to be due to her out of a legacy of $10,000 given to her by the will of said deceased. Her petition contains the necessary averments to show her right to recover the amount claimed, among other things, setting forth that the executors have filed their final account, that they have sufficient assets in hand to pay the balance due upon her legacy without prejudice to the rights of other persons interested under the will; that payment of the legacy has been demanded and proper refunding bond tendered, See. The answer of the executors denies that any balance is due to the petitioner upon her legacy, averring that they have paid to her all of the legacy and a suin' largely in excess of it. The answer further avers that the residuary estate of the testator has become vested in Eugene Woolsey, Kitty May Wadsworth and Prank Woolsey, and that the balance in the hands of the executors, after paying the commissions and expenses of administering the trust, rightfully belongs to these parties; further showing that Eugene Woolsey and Kitty May Wadsworth have not been made parties to the proceeding.

At the hearing in the orphans court, counsel appeared for Eugene Woolsey and asked to have him admitted as a party. This application was in effect refused, upon the authority of Davison v. Rake, 45 N. J. Eq. (18 Stew.) 767.

The orphans court found in favor of the petitioner, and ordered the executors to pay to her the sum of $8,000 with interest.

An appeal was taken to this court by the executors, and a separate appeal by Eugene Woolsey. Answers having been filed to both petitions of appeal, Eugene Woolsey will be treated (as his counsel contends he should be) as being properly a party to the cause in this court.

Charles A. Woolsey, the testator, died July 4th, 1895, leaving a will dated June 14th, 1894, which was admitted to probate, and letters testamentary thereon issued to Frank Woolsey, Robert A. Simpson and James P. Northrop, the executors therein named, who took upon themselves the 'burthen of the execution of the will. Simpson died in the month of January, 1903, since which time the other two executors have continued to act and still are acting.

The will, after providing for the payment of debts, gave to testator’s sister, Sarah A. Newell, a legacy of $5,000, and to the present petitioner aud respondent, Virginia M. Woolsey, a daughter-in-law of the testator, the sum of $10,000. It also gave household goods, pictures, ornaments and furniture to Alice Woolsey, daughter of testator, and jewelry and articles of personal adornment to Herbert W. Woolsey, his grandson. Next there was a general devise and bequest of the rest, residue and remainder of the estate to the executors in trust for the following uses and purposes — first, to set apart and invest $20,000 and pay the income therefrom to testator’s daughter, Alice Woolsey, during her natural life, and at her death to dispose of the principal as therein provided; second, out of the income from the remaining portion of the estate to pay to the daughter, Alice, $1,-000 per year; to the daughter-in-law, Virginia M. Woolsey, $2,000 per year (such payments to be made to them respectively until terminated as hereinafter provided), and to pay and apply for the use of the grandson, Herbert, during his minority, not exceeding $1,000 per year; third, in the event of Herbert reaching the age of twenty-one years, and of Alice being then unmarried and without issue, the further sum of $20,000, to be added to the like sum theretofore set apart for Alice, and to be held in trust and the income derived therefrom to be applied to her use and benefit during her life; the remaining portion of the estate of every kind to go to Herbert; fourth, if, at the time Herbert should reach the age of twenty-one, Alice should be married and have a child or children living, the estate (including the sum of $20,000 set apart for Alice at the testator’s death) to be equally divided between her and Herbert, the share of Alice to be held in trust during her life, and at her death the principal sum to be paid over to her children then living; fifth, in case of the death of Alice without issue, then all the estate held in trust for her, and all other portions of said estate to become the properly of the grandson Herbert; * * *

“(8) In case of the death of said Herbert and Alice before the division herein provided for, and without one or each of them, leaving lawful issue, and no directions for such contingencies being herein specifically set forth, then such share or shares shall be divided in the same manner as though I had died intestate, a resident of the State of New Jersey, upon the day and date of this instrument.” ■

The appellants admit that prior to the commencement of the present suit by Virginia M. Woolsey, the executors had filed their final account in the Hudson orphans court, and that this account had been restated in accordance with a decree of the court of errors and appeals, with the result of showing a balance in the hands of the executors amply sufficient to pay the $8,000 and interest claimed by Mrs. Woolsey; but payment is disputed on the ground that the legacy has already been paid.

The transactions upon which the claim of payment is rested have already been the subject of litigation between Mrs. Woolsey and the executors, first upon exceptions taken by her and by Alice Woolsey to their final accounts as originally stated; Woolsey’s Case, 67 N. J. Eq. (1 Robb.) 574; S. C. on appeal, 68 N. J. Eq. (2 Robb.) 763; and afterwards in a chancery suit brought by the executors against Virginia and Alice seeking to restrain the enforcement of a decree of the orphans court that was entered in compliance with the decision of the court of errors and appeals in the case just alluded to. Woolsey v. Woolsey, 71 N. J. Eq. (1 Buch.) 609; S. C. on appeal, 72 N. J. Eq. (2 Buch.) 898. The proceedings and decrees in both these litigations were introduced in evidence in the present case.

In their original statement of the final account, the executors prayed allowance (among other things) for $14,832.82, being the amount of sundry payments made to Virginia Woolsey on account of her annuity. Upon exceptions taken, this item, with others, was disallowed. Upon appeal, first to this court (67 N. J. Eq. (1 Robb.) 574) and afterwards to the court of errors and appeals (68 N. J. Eq. (2 Robb.) 763), the final decision was against the executors; the court of last resort holding that since the payments in question had been made as payments on account of the annuities provided in the will, and since, if these payments were allowed as claimed by the executors, the assets in their hands would fall short of meeting the amounts required for the legacies to Mrs. Newell and to Virginia M. Woolsey, and nothing would be left to make up the trust fund of $20,000 for Alice Woolsey, the executors were not entitled to the allowance asked for by them; the court, by Mr. Justice Swayze, saying: “The testator was careful to distinguish between the legacies and the trust fund on the one hand, and the annuities on the other. The legacies and the trust fund were to be first provided for. The annuities were to be paid out of the income from the remaining portion of his estate. It is manifestly to the disadvantage of Virginia M. Woolsey and Alice Woolsey to have the legacy and the trust fund depleted by the payment of moneys which were paid and received on account of the annuities. As was said by the chief-justice in Appleton v. American Malting Co., 65 N. J. Eq. (20 Dick.) 375, 381: 'It is absurd to say that a person suffers no wrong who has been unwittingly induced to exhaust his principal by the mistaken or fraudulent representation of those to whom he has entrusted it that what has been paid to him is income. The annuities were payable only out of income derived from the estate after setting aside enough money to pay the legacies. By paying the annuities the executors represented to the annuitants that they had income out of which to make these payments after paying the legacies. Having led the annuitants to act on this belief, the executors are estopped from asserting the contrary.”

Thereupon the record was remitted from the court of errors and appeals to this court, and by this court to the orphans court, with directions to restate, the account of the executors in accordance with the opinion of the court of errors and appeals. The orphans court made an order for the restating of the account accordingly, and this order was complied with, with the result of showing, as already mentioned, a balance in the hands of the executors sufficient to pay the legacy now claimed by Mrs. Woolsey.

After the decision of the court of last resort in the accounting matter, the executors filed their bill in chancery praying to be relieved from its effect, first, on the ground that the question whether Mrs. Woolsey and the other legatees were induced to exhaust their principal by the representation that what had been paid to them was income was not within the issue that was before the orphans court in the accounting; and secondly, on the ground that the payments that had been made to Mrs. Woolsey, and similar payments made to Alice and to Virginia as guardian for Herbert, were made upon an agreement between the executors and the legatees that they were to be charged to principal (that is to say, charged against the legacies), in default of sufficient estate to satisfy annuities and principal. The court of chancery, and afterwards the court of errors and appeals, overruled this contention, Mr. Justice Swayze again writing the opinion for the latter court (72 N. J. Eq. (2 Buch.) 898), holding that the form of the exceptions that had been taken in the orphans court to the original final accounting presented the question of the justice and propriety of the allowance prayed by the executors for the payments that had been made,' and not merely the question of the fact of payment; the court holding, therefore, that the matter was res adjudícala.

Upon the hearing' of the present action in the orphans court, the averment by the executors that the legacy claimed by Virginia M. Woolsey had been fully paid was attempted to be supported by the same evidence that had been laid before the court of chancery in the heáring upon the bill for injunction, the entire testimony taken in that court being offered and admitted, subject to objection interposed by counsel for the petitioner below (the present respondent) that the evidence was irrelevant for the reason that the matter covered by it was res adjudícala.

It is conceded here by the appellants that as to the executors individually, and as to all parties whom they represented at the time of the former litigation, it is res adjudícala that the payments made to Virginia M. Woolsey, in the form of payments on annuity account, were not, in fact or in law, payments on account of her legacy; that by reason of the payments having been made on account of the annuities the executors were estopped to deny the receipt of income out of which to make the payments, and as they failed to charge themselves with such receipts they could not be allowed for the payments; and that as to their subsequent insistment that by agreement, express or implied, between Mrs. Virginia M. Woolsey and the executors, the payments made apparently on income account were in certain contingencies to be treated as payments on the legacy, it was open to the executors to show this in the former orphans court proceeding, and since they had failed to do so they were concluded by the result of that litigation from afterwards doing so.

It being admitted that this estoppel is complete as against the executors and all persons whom they then represented, the ingenious contention is made that new interests have since arisen that were not in being at the time of the former litigation, and that these interests are not concluded by the result thereof. This point arises as follows: Herbert W. Woolsey, the grandson of the testator, died in infancy, childless, intestate and unmarried, on March 20th, 1904. Afterwards, and on March 5th, 1908, shortly before the filing of the restated and supplemental account by the executors, Alice Woolsey died, intestate and unmarried, leaving as her nearest relatives two paternal uncles of the half-blood, viz., Frank Woolsey (one of the executors) and Eugene Woolsey, and Kitty M. Newell, now Mrs. Wadsworth, who was a daughter of Sarah A. Newell, deceased, who was a full sister of Charles A. Woolsey, the testator. Thereupon, it is said, the contingency, contemplated by subdivision 8 of the third clause of the testator’s will, arose. That provision is as follows:

“(8) In case of the death of said Herbert W. Woolsey and Alice M. Woolsey before the division herein provided for, and without one or each of them leaving lawful issue, and no directions for such contingencies being herein specifically set forth, then such share or shares shall be divided in the same manner as though I had died intestate, a resident of the State of New Jersey, upon the day and date of this instrument.”

A correct construction of this language may not be free from doubt. If the testator had died intestate upon the day of the date of his will, viz., June 14th, 1894, his daughter, Alice, and his grandson Herbert, being then alive, would have been his heirs-at-law and next of kin. But they are the same parties upon whose death without issue the share in question is to be divided in the same manner as though the testator had died intestate upon that day. It is contended, therefore, that he must be considered to have died intestate (with respect to the share in question) at the time when the contingency arose, but with reference to the statutes of descent and distribution that were in force at the date of the will; with the result that Frank Woolsey, Eugene Woolsey and Mrs. Wadsworth would become entitled.

Under any construction, it may, for present purposes, be assumed, if not conceded, that the will upon the death of Alice Woolsey conferred upon Eugene Woolsey and the others just mentioned interests in the estate that they did not possess at the time of the former litigation.

It is contended that Eugene Woolsey and Mrs. Wadsworth, not having been parties to that litigation, are not bound by its result.

The Orphans Court act, in section 127 (P. L. 1898 p. 761), declares that a decree of the orphans court on the final settlement of the accounts of executors, &c., shall be conclusive upon all parties, and shall exonerate the party accounting from all demands of creditors, legatees and others beyond the amount of such settlement, except for assets which may come to hand after settlement, and except fraud or mistake be proven to the satisfaction of the court.

Under our statutory system the jurisdiction of the orphans court over matters of accounting and distribution that are properly within its cognizance, is as complete and its decrees are as binding and conclusive as are the jurisdiction and decrees of the court of chancery. In all cases where a decree in equity would be binding upon persons not in esse at the time, or upon persons whose interests had not yet arisen, the decree of the orphans court must be equally binding.

The rule that all persons interested in the fund or property that is in question must be brought before the court in order to be bound by the result, is subject to some limitations, dictated by common sense, upon grounds of necessity or even of convenience. Where courts have to deal with property whose ultimate destination is in doubt, and which may, upon a certain contingency, go to persons not yet vn esse or not yet ascertained, they must perforce proceed without the attendance of such persons, or not proceed at all. It results that such contingent interests are held to be bound if the interest b,e represented in the litigation by a trustee or (in some cases) by the predecessor in estate. 1 Dan. Ch. Pl. & Pr. 227, 228, 229, 266; Story Eq. Pl. §§ 140, 142, 144, 145, 146, 147; 2 Spenc. Eq. Jur. 707; Dunham v. Doremus 55 N. J. Eq. (10 Dick.) 511; Hale v. Hale, 146 Ill. 227; 33 N. E. Rep. 858.

Even where the parties interested are m esse and ascertained, they are not in all cases necessarily brought before the court. Thus, in Davidson v. Rake, 45 N. J. Eq. (18 Stew.) 767, the court of errors and appeals held, in a suit for the recovery of a legacy pursuant to the Orphans Court act, that the residuary legatee is not a necessary party, and this on the general ground that in suits by creditors or legatees not involving the construction and effect of the residuary clause of the will, and where residuary legatees are interested consequentially only from the circumstance that the recovery of the debt or legacy will reduce the residue, the executor is regarded as the representative of all persons interested.

The above reasoning applies with special force to proceedings having for their object the settlement of the accounts of executors and trustees under a will. It would lead to interminable confusion if such an accounting were subject to be reopened and materially modified upon the occurrence of a change of interest through the happening of subsequent events.

The interest in the residue of the Charles A. Woolsey estate now claimed for Eugene Woolsey and others as having arisen upon the death of Alice Woolsey, not having arisen at the time of the former litigation, and the persons who would succeed in the event of her death being then unascertained, and until her death unascertainable, it seems to me that those contingent remainders must be taken to have been represented by the executors, who were likewise trustees for the remaindermen.

The remaindermen must therefore be held bound by the former decision.

Eor this reason I have found it unnecessary to examine the evidence upon which the appellants base their argument that Virginia Woolsey is estopped from denying that the moneys paid to her on the annuity account should be taken as received in discharge of the legacy.

The decree under review will be affirmed, with costs.

CASES ADJUDGED m THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY ON APPEAL FROM THE COURT OF CHANCERY, AND THE PREROGATIVE COURT. MARCH TERM, 1911.


author: Gummere, Chief-Justice.

text:
    George Ewald, respondent, v. Sotten Stephen Ortynsky et al., appellants.
    [Argued December 2d, 1910.
    Decided March 8th, 1911.]
    1. The power of the court of chancery to permit complainant to withdraw his replication to a plea of want of jurisdiction exists so long as the issue raised by the replication remains undetermined; and, where it clearly appears, that, unless the replication is withdrawn, there will be miscarriage of justice, such permission should be granted.
    2. Where a domestic corporation, made a defendant in a suit in equity, filed a plea to the jurisdiction, averring want of service of subpoena, and complainant joined issue thereon, and the evidence showed service on one who was neither an officer nor an agent of the corporation, the court, to avoid a dismissal of the suit, properly permitted complainant to withdraw his replication so as to enable him to move to strike out the plea, and to set aside the service, and have a new writ against defendant. a

      3. Under chancery rule 213, authorizing objections to pleadings by motion stating the ground therefor, complainant may by motion object to the plea of defendant to the jurisdiction praying dismissal of the suit for want of service, and the court on that motion may adjudge that the plea is bad.
    4. A plea by a domestic corporation made a defendant in a suit in equity to the jurisdiction of the court praying for dismissal on the ground of want of proper service of process is bad, and the court on complainant’s motion may strike it out.
    5. The court of chancery may set aside a service of a subpoena which has by mistake been made on a person other than defendant, and may order the issuance of a new writ and its service on defendant.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 76.

      Mr. Adolf L. Engelke, for the appellants.

      Mr. Herbert C. Gilson, for the respondent.
   The opinion of the court was delivered, by

Gummere, Chief-Justice.

The bill in this case seeks to have decreed to be fraudulent and null and void as against the complainant certain conveyances of, and encumbrances upon, lands of the defendant Little Russian Greek Catholic St. Peter and Paul Church of Jersey City, a corporation of this state, to have a judgment which the complainant holds against that defendant declared to be a lien upon those lands; and to have that judgment enforced against them. The Little Russian, &c., church filed a plea to the jurisdiction averring that it had never been brought into court by the service of subpoma, that by reason thereof the court did “not now, never had, and cannot have jurisdiction over it,” and that the failure to serve it with process was a bar to the complainant’s right to relief upon its bill, and praying that it be dismissed from the court, with its costs. The complainant replied to the plea, joining issue thereon, and the case was then referred to the vice-chancellor to take the proofs and hear the cause. At the close of the taking of the testimony it clearly appeared that the service which was shown by the sheriff’s return to have been made upon the defendant was, in fact, made upon a person who was neither an officer nor agent of the corporation, and that the defendant consequently had not been brought within the jurisdiction of the court. At this stage of the proceedings the court, conceiving that the plea was bad, but that notwithstanding this fact the complainant by replying to it had admitted its sufficiency, and that, consequently, if the pleadings remained upon the record, the defendant would be entitled to a decree dismissing the bill, called the attention of counsel for the complainant to this phase of the case, and then granted him leave to move to withdraw his replication and .strike out the plea, and, if these motions were granted, to move to set aside the service of process against the defendant and to have a new writ issued against it. The motions were made and were heard upon notice, and after consideration by the court, were each of them granted and an order to that effect entered. From this order the defendant appeals.

The defendant’s solicitor evidently presumed that by his plea he was presenting a case similar to that which was before us in Wilson v. American Palace Car Co., 65 N. J. Eq. (20 Dick.) 730, in which we stated at the conclusion of our opinion (at p. 735) : “On this record we are constrained to adjudge that these defendants have not been brought before the court by due process of law, that therefore they are not obliged to answer the bill and should be dismissed.” That the solicitor of the complainant held the same view with relation to the plea is shown by the filing of the replication. But in the case referred to the question before us for decision was whether non-resident defendants who had not been brought into court, and could not be brought in against their consent, and who declared themselves unwilling to submit to its jurisdiction, were entitled to set these facts up in a plea to the jurisdiction, and, upon establishing them, be dismissed; and what we said in the part of the opinion already quoted referred only to defendants occupying such a position. We, of course, did not intend to say, and did not say, that a defendant in an equity suit who was a resident of the state, and subject to be brought within the jurisdiction of the court by the compulsory process, could, after bill filed, but before subpoena was served upon him, successfully challenge the jurisdiction and obtain a dismissal by pleading that he had not been served. The mere statement of the proposition exposes its absurdity, for if such was the situation a defendant could always defeat the complainant’s claim if he could manage to forestall the service of subpoena by filing such a plea. And this was the identical situation disclosed by the proofs taken on the issue tried; for service of process upon a person not an officer or agent of the defendant corporation was not a service upon the defendant at all, and the case stood in its legal effect as if no subpoena had yet been issued against it. Of course, if the complainant’s solicitor had discovered the situation before the filing of the plea by the defendant, he would have been entitled to set aside the return of the service made by the sheriff, and to the issuance of a new subpoena to the defendant. By the filing of the plea, however, setting up facts which were alleged to be a bar to the complainant’s right to relief, the joinder of issue thereon, and the sustaining of those facts by proof, the defendant was entitled to a decree dismissing the complainant’s bill, notwithstanding that the facts set out did not constitute a valid defence to the suit, provided the plea and replication were permitted to remain upon the record. Fennimore v. Wagner, 73 N. J. Eq. (3 Buch.) 367. Such was the settled practice in chancery at the time when the plea and replication in this case were filed. Its injustice is so patent that is has since been annulled by a rule of court promulgated by the chancellor for that purpose. The same reason led the learned vice-chancellor to take the course the legality of which is challenged by this appeal. That in doing so, he did not exceed the power vested in the court of chancery we are clear. Sis first action was to permit the complainant to withdraw his replication. Such power has been exercised by the court of chancery almost from time immemorial. As early as 1747 permission to withdraw a replication was granted by Lord Hardwick in the case of Pott v. Reynolds, 3 Atk. 565. In Cowdell v. Tatlock, 3 Ves. & B. 19, Lord Elden refused to discharge an order which had been previously made granting a similar permission to the complainant. In Brown v. Ricketts, 2 Johns. Ch. 425, Chancellor Kent recognized the existence of the power of the court to permit the withdrawal of a replication, but said that when application was made for leave to do so for the purpose of enabling the complainant to except to the answer, it would not be granted unless upon special cause clearly shown. It may be admitted that such leave ought rarely to be granted after the taking of testimony and its submission to the court, but it cannot be said that even in such a situation the power to do so is exhausted. Such power necessarily exists so long as the issue raised by the replication remains undetermined, and when it clearly appears that unless the replication is withdrawn there will necessarily be a miscarriage of justice, such permission should always be accorded. Such was the situation which the present case disclosed, and the vice-chancellor rightly granted the application. The replication being out of the way, the plea remained. Under the old practice, if the complainant deemed a plea to be bad, the case went to hearing upon the plea. Davison v. Johnson, 16 N. J. Eq. (1 C. E. Gr.) 112. But by the two hundred and thirteenth chancery rule he is no longer required to do so, and may, if he so desires, present his objections to the plea upon motion. This was the course pursued in the present case, and the question of the validity of the plea was properly before the court for consideration and determination. That the vice-chancellor was right in holding the plea bad is apparent from what has already been stated. The power of the court of chancery to set aside the service of a subpoena which has by mistake been made upon a person other than the defendant, and to order the issuance of a new writ and its service upon the defendant, we have already declared.

The order appealed from will be affirmed.

For reversal — None.

For affirmance — The Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon — 13.


author: Garrison, J.

text:
    Ida G. Shearman et al., respondents, v. Alpin J. Cameron, appellant.
    [Argued November 30th, 1910.
    Decided June 19th, 1911.]
    A testator by his will, probated on October 31st, 1891, directed that the executors thereof, having ascertained, in a manner provided therein, the value of his interest in the business of a firm with which he was connected, should permit the sum so ascertained to remain in such business for five years, at the end of which period it was to be withdrawn by such executors and turned over to a trustee who was one of the said executors. After the expiration of these five years the executors filed in the orphans court their account as executors, which was duly allowed on June 21st, 1899, after which the sum shown by such account was treated by the trustee as the fund. Upon a bill for an accounting filed in the court of chancery in 1905 against said trustee by persons in privity with parties before the orphans court — Held, that the decree of the orphans court allowing the account of the executors, in which they charged themselves with the sum so permitted to remain in the business, conclusively established the amount for which, in the absence of fraud or negligence on his part, such trustee was liable to account.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 426.

      Mr. Cornelius Doremus, for the appellant.

      Mr. Gilbert Collins and Mr. Marshall Van Winkle, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

The appellant, Alpin J. Cameron, is the son of Alexander J. Cameron, deceased, and one of the executors of his last will, also the trustee thereunder. The respondents are grandchildren of the testator who, having an interest in the trust established under his will, filed this bill against the appellant for an accounting and obtained a decree surcharging his account as trustee with the sum of $8,368.98. The amount with which the trustee’s account is thus surcharged is the difference between the value of the interest of the testator in the firm of A. J. Cameron & Company as shown by the account of the executors allowed by the decree of the orphans court of Bergen county in 1899, and the value of the same item as determined by the report of the special master confirmed by the decree of the court of chancery now before us.

The trastee, by the terms of the will, was to receive and administer a fund to be turned over to him by the executors, hence it is evident that the present controversy involves the question whether such trustee shall be required to account for a larger sum, as having been turned over to him by the executors, than the executors, according to the decree of the orphans court, had in hand for that purpose. In such an inquiry a fundamental question necessarily is the force and effect to be accorded to the decree of the orphans court.

To the consideration of this legal question the following facts are pertinent:

Alexander J. Cameron died on September 30th,' 1891, leaving a will which was probated on October 31st, 1891. A large part of the personal estate of the testator was invested in the business of the firm of A. J. Cameron & Company which, prior to 1880, consisted of the testator and his son Alpin J. Cameron, and after that date of these two with W. P. Denegre. Alpin J. Cameron and his sister Alice were the executors of their father’s will, and Alpin the sole trustee of its trust provisipns. The will, in disposing of the testator’s interest in the firm, provided that for five years it should be permitted by the executors to remain in the business subject to certain withdrawals by the executors and to the ascertainment by them and the surviving partner of the value of such interest and the determination by the trustee as to the terms upon which it should share in the profits of the business during the said five years. At the end of the five years thé executors were to withdraw such sum from the business of the firm and turn it over to the trustee. Subject to the duties to be thus performed by the executors as conditions precedent to the vesting of the trustee’s title to such trust fund, the fund so established when turned over to him became subject to the trusts set forth in the will.

After the death of the testator, the value of his interest in the business of the firm of A. J. Cameron & Company was ascertained to be $37,741.63, which was permitted by the executors to remain in the business for five years from the date of such ascertainment, i. e., until 1898. On May 17th, 1899, the executors filed with the surrogate of Bergen county their account as executors from October 6th, 1891, to December 31st, 1898, in which the accountants, among other things, charged themselves as of January 1st, 1892, with the value of the interest of Alexander J. Cameron, deceased, as follows:

“1892. Jan. 1. Balance to credit of Alexander J. Cameron in the firm of A. J. Cameron & Co., Yarn Merchants of New York and Philadelphia of which firm Alexander J. Cameron was a member. This balance was determined at the request of the Executors, by Allan Cameron of Westford, Mass., brother of Alexander J. Cameron. See Allan Cameron’s statement accompanying this account $37,741.63. The above interest of Alexander J. Cameron was invested with A. J. Cameron & Co. with the understanding- that A. J. Cameron & Co. would pay for five years or longer at rate of 10 per cent, per annum on balance of the account.”

This account was in due course reported to and allowed by the orphans court as follows:

“To the Judge of the Orphans’ Court of the County of Bergen:
"The above account being by me audited and stated, I now report the same to the Court for settlement and allowance. June 21st, a. d. 1899. David A. Pell, Surrogate.”
“Bergen County Orphans’ Court, Term, April, a. d. 1899. Alpin J. Cameron and Alice E. Cameron, Executors of Alexander J. Cameron, dec’d. Einal Account. The account of the above named executors being reported to the Court, duly audited and stated by the Surrogate, and it appearing by proof that due notice of presenting the same to the Court at this term for settlement and allowance has been duly given, as required by law, and no exceptions being made thereto, the Court do thereupon allow the same in all things as reported by the Surrogate. Done in Open Court June 21st, a. d. 1899. (Signed) David D. Zabriskie, Judge.”

Tlie amount thus established was thenceforth treated by the trustee as the trust fund created in accordance with the terms of the testator’s will.

On May 6th, 1905, Alice E. Cameron died, leaving a will by which an interest in said trust vested in the respondents who thereupon filed the present bill under which an interlocutory decree was made ordering the defendant as trustee to render an account of the estate bequeathed in trust to him. The report of the special master stating such account having been made, and exceptions thereto having been filed and heard, a further order was obtained by which the matter was referred back to the special master with an express instruction to restate the trustee’s account “so that the initial credit of the interest in the firm with the deductions to be allowed against it shall appear.” Hnder this express order the special master reported as follows: “1891, December 31st. The trustee accountant is charged with the amount of the interest of Alexander J. Cameron in the firm of A. J. Cameron & Company as ascertained, $48,306.56,” against which was allowed an undisputed credit of $2,295.95, which reduced such “initial credit” to $46,010.61, which is the same item .as that allowed by the orphans court in 1899 as $37,741.63. The difference is the sum of $8,268.98 now in controversy; the propriety of surcharging the trustee with this amount over and above the amount shown by the account of the executors as allowed by the decree of the orphans court is the sole question involved in this appeal.

The sum thus in controversy probably represents overdrafts made by the testator at a time when the firm consisted of himself and his son, prior to 1880, when Denegre came into the firm and a new set of books was opened. The old books which were in existence in 1893, and were then used in the ascertainment of the testator’s interest in the firm, have, in the intervening years, been lost, but the fact that they showed such indebtedness is not open to serious question. The ground of decision in the court below was not that the old books of A. J. Cameron & Company did not show such an indebtedness, but that, assuming such indebtedness to be shown, it should not have been considered in the ascertainment of the value of Alexander J. Cameron’s interest in the firm as constituted at the time of his death. Into the merits of this controversy we shall not go for the reason that, in our opinion, the question of the value of such interest was foreclosed by the decree of the orphans court, which established, and as we think conclusively, the amount,of the trust fund in the hands of the executors, for which, upon its being turned over to the trustee, he must account. Tn the absence of fraud or negligence on the part of such trustee of which such decree was the result, we think that it could be neither ignored nor attacked in the court of chancery by a restatement of such executors’ account in which the value of the testator’s interest in the firm was swelled by the amount in controversy for the purpose, or at least with the result, of increasing the sum for which such trustee was compelled to account.

It is a doctrine of universal acceptation that the judgment of a competent court acting within its jurisdiction is conclusive upon parties and privies as to" all matters adjudged upon which the parties were of right -entitled to be heard. The application of this general rule to the decrees of orphans courts is illustrated in numberless cases in our reports from which the following may be selected for citation: Conover’s Executors v. Conover, 1 N. J. Eq. (Saxt.) 403; Boulton v. Scott, 3 N. J. Eq. (2 Gr. Ch.) 231; Black v. Whitall, 9 N. J. Eq. (1 Stock.) 572; Obert v. Hammel, 18 N. J. Law (3 Harr.) 73; Vankleck v. O’Hanlon, 21 N. J. Law (1 Zab.) 582; Zabriskie’s Executors v. Wetmore, 26 N. J. Eq. (11 C. E. Gr.) 18; Search v. Search, 27 N. J. Eq. (12 C. E. Gr.) 137; Plume v. Howard Savings Bank, 46 N. J. Law (17 Vr.) 211; Clark v. Costello, 59 N. J. Law (30 Vr.) 234; Tehan v. Maloy, 45 N. J. Eq. (18 Stew.) 68; Weyman v. Thompson, 50 N. J. Eq. (5 Dick.) 8; Seymour v. Goodwin, 68 N. J. Eq. (2 Robb.) 189; Woolsey v. Woolsey, 72 N. J. Eq. (2 Buch.) 898.

These cases present the evolution of this rule commencing with our first equity report, where, in the case of Conover’s Executors v. Conover, Chancellor Vroom, having held (as abstracted in the head note) that “when executors have settled their account in the orphans court, if there be no evidence of fraud or mistake, this court will not disturb such settlementadded in the text of the opinion, “even if that could be done in this incidental way.’’ The latest application of the rule is in Woolsey v. Woolsey, which, upon legal principle, is indistinguishable from the present case.

The rule thus illustrated requires for its application the legal identity of the parties in interest, the actual identity of the matter previously adjudged by the orphans court, and a procedure therein that properly placed such matter in train for such adjudication.

In the present case the interests involved were represented in the orphans court and the matter adjudicated by the decree of that court, and that now adjudged de novo by the court of chancery are identical, being, in each case, the value of the testator’s interest in the firm. That the value of such interest was, under the terms of the testator’s will, not only a proper but a necessary item of the executors’ account cannot be questioned. The testator’s will required the executors to leáve in the firm, for the period of five years, not an indeterminate interest, but a sum of money, the exact amount of which had been previously ascertained, and which, at the end of such period, they were to withdraw, and hence to be charged therewith as executors. Their account in this respect was therefore properly before the orphans court for adjudication as to “the truth and fairness of the same,” io quote from the opinion of this court in Woolsey v. Woolsey, which opinion also said that “the orphans court, on such an accounting, may ascertain the condition of the estate as fully as can the court of chancery.” The same opinion also points out that, as to a question involved in such accounting, the legal situation was the sáme in ease of a neglect to litigate as in that of unsuccessful litigation. The legal question is whether the procedure of the court afforded an opportunity to litigate, not whether the parties concerned availed themselves of it. The question of fact whether the judge of the orphans court actually weighed the propriety of a particular item has the same legal significance that a similar question would have with respect to the action of the chancellor where a decree fro confesso had been taken or that of the justices of the supreme court in case of an assessment filed under a judgment by default, i. e., the rule in question is concerned, not with the proofs as to a given case, but with a conclusive presumption as to all cases. Such rule applies with peculiar force to a case like the present, where a fund to be administered by a trustee is to be got in and turned over to him by executors. The hardship of a general rule by which such a trustee may be required to account for a larger sum than he received from such executors, is not much greater than that of requiring Mm to vindicate, years afterwards, not his administration of his trust, but the decree of the court that had allowed the account of such executors. A general rule of law must vindicate itself without respect to persons or regard to their identity. The fact that in the present case the trustee was one of the executors, while a circumstance to be considered upon the question of his opportunity for fraud, is entirely without significance upon the question of the effect accorded by a general rule of law to the decree of a court of competent jurisdiction. The significance of such identity, upon the question of fraud, was, we may say, in our opinion, entirely eliminated from the case by the calling in, by the executors in 1893, of Mr. Allan Cameron, a brother of Alexander and an expert accountant, to examine the firm’s accounts and appraise the value of the testator’s interest in its business. The appellant and his sister Alice were the executors, Alice and another sister were then living, and if the appellant had sought to take advantage of Ms dual position to work a fraud upon his sisters, the last thing he would have done would have been to call in their uncle to act as an expert appraiser.

The error by which the appellant is required to account in the court of chancery for a larger sum than that shown by the decree of the orphans court to have come into Ms hands as trustee, should be corrected by accepting the amount established by such decree as the basis for the appellant’s account of his administration of his trust; for such modification the decree brought up by this appeal is remitted to the court of chancery.

For affirmance — None.

For reversal — The Ci-iiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vre-DENBURGH — 10. .


text:
    Henry V. Massey v. Camden and Trenton Railway Company.
    [Argued March 20th, 1911.
    Decided June 19th, 1911.]
    1. The preferential claims to be allowed by the receiver of an insolvent corporation are those set forth in section 83 of the Corporation act.
    2. When the legislature of a state has allowed to one or more classes of creditors a preferential claim upon the assets of an insolvent corporation in the hands of a receiver a court of equity may not allow a like preference to a class to which the legislature has not allowed it.
    3. The preferences resulting from the doctrine of Posdieh v. Sehall {1879), 99 XJ. B. 285, in so far as they are not allowed by the New Jersey Corporation act as revised in 1896, do not exist in this state.
    On appeal from an order of the chancellor denying the petition of General Electric Company.
    The Camden and Trenton Railway Company being in the hands of a receiver appointed under the statutes of this state, the appellant, the General Electric Company, presented to the receiver, within the time limited by the order of the court of chancery, a claim for $4=17.85, covering certain electrical apparatus and supplies delivered to the railway company within six months prior to the receiver’s appointment, which items of supplies in the said account were necessary to the daily operation of the railway, and for the payment whereof the General Electric Company had relied on current earnings. The claim further set out that the General Electric Company had not in fact been paid; that the receiver had received sufficient earnings during his management of the road to pay this claim, and asked that it be adjudged to be a preferred claim in distribution. The above facts were admitted by the receiver’s answer.

      The claim was admitted by the receiver as an -unsecured claim, but its preferential character denied, whereupon the General Electric Company appealed to the chancellor, who, after argument, sustained the receiver and denied the preference. From the order of the chancellor denying the preference this appeal is taken.

      Mr. Stephen C. Cook and Messrs. Read, Gill & Runk (of the Philadelphia bar, on the brief), for the appellant.

      Mr. John D. McMullin and Messrs. Vroom, Dickinson & Scammell, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

The appellant seeks to support its claim to a preference under an equitable rule that was first worked out by Chief-Justice Waite in his opinion in Fosdick v. Schall, 99 U. S. 235. This case was decided in 1879, and has been since followed in the federal courts and by some state courts, not, however, with entire rmanimity as to the extent of the preference given, some courts having allowed a preference to all indebtedness of a certain sort incurred within eighteen months prior to insolvency, others having limited it to ninety days, and in others, which are the majoritjq six months is the time fixed.

It is not necessary to our decision of the present case that the doctrine illustrated by these cases be either explicitly stated or critically examined, since, regardless of its soundness or its merits, it is not open to the courts of this state to adopt it.

The general topic with which such equitable doctrine is concerned, is the distribution of the assets of insolvent corporations in the hands of a receiver with express reference to the preferences to be allowed in such cases. In this state, that matter has been the subject of legislative consideration, but the resulting legislation affords no support for the appellant’s claim. At the time Fosdick v. Schall was decided, our statutory law gave in cases of insolvent corporations a preferential lien that was unlimited as to time or amount. P. L. 1869 p. 1448; Rev. 1877 p. 188 § 63; Delaware, Lackawanna and Western Railroad Co. v. Oxford Iron Co., 33 N. J. Eq. (6 Stew.) 192; Wright v. Wynockie Iron Co., 48 N. J. Eq. (3 Dick.) 29.

In 1892, after the decision of Fosdick v. Schall, a new and independent statute was enacted upon this subject, by which a lien was given to laborers and workmen for the amount of wages due them for work and service performed within two months preceding the institution of insolvency proceedings, which claim was given a preference excepting as to mortgages on land and chattel mortgages that fulfilled certain requirements. In 1893, it was held, by Vice-Chancellor Van Fleet, that “the statute of 1892 covers the whole subject-matter embraced by the prior law, with an additional highly important provision, and was obviously designed to lake its place and stand as its substitute.” Mersereau v. Mersereau Company, 51 N. J. Eq. (6 Dick.) 382.

The general subject-matter of these statutes was manifestly the creation of liens and priorities in those cases in which the legislature thought they should exist. In 1896, this statute, substantially unchanged in its language, was incorporated by the legislature as sections 83 and 84 of the Revised Corporation act. This course of legislation shows that the legislature of this state has considered and dealt with the subject of preferential claims against insolvent corporations, allowing them in those cases in which in its judgment it was equitable and proper that they should be allowed, and not allowing them in the class of cases in which the appellant now claims that the court of chancery should have allowed them, notwithstanding this legislative regulation of the subject. For seventeen years prior to the revision of our Corporation act in 1896 the rule for which the appellant contends had been administered in the federal courts and elsewhere throughout this country, to -the presumed knowledge of the revisers of the Corporation act, who were men of exceptional breadth of legal and judicial knowledge. Under these circumstances, the provision of our present Corporation act, upon this subject, is in effect a declaration by the legislature as to the preferences that are to be allowed in the winding up of insolvent corporations of this state regardless of the rule upon'that subject in force elsewhere. Whatever its provisions may he, such a rule, whether of judicial or legislative origin, is essentially legislative in character. If it emanate from the legislature, it is the equitable judgment of a law-making body, if from a court of equity it is the legislative judgment of that tribunal. That a provisional jurisdiction of this latter character inheres in the court of chancery may, for present purposes, be assumed without inquiring into its history or even its precise nature, since, upon such assumption, the legitimate condition for its employment constitutes, at the same time, a limitation upon its exercise. This unique jurisdiction, and its inherent limitation, are nowhere so well described as by DeLolme, that astute and sympathetic critic of English institutions, who did for them, in his “Constitution of England,” what fifty years later his fellow-cormtryman, de Tocqueville, did for ours in his “Democracy of America.” “Of the courts of equity as established in England,” DeLolme says, “the following definition may be given, which is that they are a kind of inferior experimental legislature, continually employed in finding out and providing new law remedies for those new species of cases for which neither the courts of law nor the legislature have as yet found it convenient or practicable to establish any; in doing which they are to forbear to interfere with such cases as they find already in general provided for.” London Ed. 1817 p. 148.

Even those who are shocked at the notion that legislative power of any sort resides in a judicial tribunal will not hesitate to subscribe to the limitation of such power, assuming it to exist, viz., to cases not “already in general provided for.” All therefore may agree that whatever jurisdiction equity may have with respect to rights that axe incidental to the administration of a gmsi-public agency, such jurisdiction is conditioned upon the absence of any general legislative regulation of the subject, and hence falls whenever the legislative will, in this respect, has been declared. This bar, it should be noted, does not depend upon the details of such legislative action, but upon the fact that the legislature has declared its will upon the general subject, affirmatively by what it has enacted, negatively by what it refrained from enacting. The opposite view, for which the appellant must perforce contend, viz., that where the statutory law has given a preferential lien to one class and has omitted to give it to some other class, a court of equity may extend such preference to a class so omitted, as if no such legislative regulation of the general subject existed, leads in effect to the proposition that a court of equity may put into a statute all that the legislature has determined to leave out; in which case it will be observed that the very fact that the legislature has so determined logically constitutes the jurisdictional basis of such equitable interference.

In the opinion quoted by the appellant, in support of this view, viz., Van Frank v. Missouri Pacific Railroad, Co., 89 Mo. App. 460, the argument is appropriately crowned with the thought that the law, to correct the deficiencies of which equity was established, includes not only law as distinguished from equity, but also contemporaneous statutory enactments, the inference sought to be drawn being that, where an act of the legislature is lacking in universality, equity may supply the deficiency.

Holding, as we do, the contrary view, our conclusion is that by force of the provisions of the Corporation act of this state the only preferential claims to be allowed in cases of insolvency are those that the legislature has declared, and that upon this ground the order of the chancellor denying a preference to the claim of the appellant should be affirmed.

For affirmance — The Chiee-Justioe, Garrison, Swavize, Trench art), Bergen, Yoorhees, Minturn, Bogert, YredenBURGH, CONGDON, SUBBIVAN — 11.

For reversal — None.


author: Swayze, J.

text:
    Henry Beck, complainant-respondent, v. Marie Beck, defendant-appellant.
    [Argued November 23d, 1910.
    Decided June 19th, 1911.]
    1. A husband, a laborer, and his wife, a servant, accumulated property after their marriage out of profits of a saloon business conducted by the wife under a license to the husband, from boarders, and the earnings of minor children; the savings, with the knowledge of the husband, were invested in real estate, 'the title to which was taken in the name of the wife. — Held, that the evidence fell short of the standard of certain, definite, reliable and convincing proof necessary to rebut the presumption of a gift to the wife.
    2. Where husband and wife accumulate property by their joint efforts, and invest it in the'name of one of them, there is no presumption arising from their station in life that they intended it to be a common hoard, in which both should be equally interested.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 77 N. J. Eq. (7 Buch.) SI.

      Mr. Fred Dieffenbach, Jr., and Mr. Hamilton R. Squier (on the brief), for the respondent.

      Mr. Merritt Lane, for the appellant.
   The opinion of the court was delivered by

Swayze, J.

The complainant’s bill charges that certain properties, the title to which stands in the name of his wife, the defendant, belong in equity to him because purchased with his money, and the title taken in defendant’s name with the agreement that it should be only in trust for the complainant. He prays a decree that the defendant make deeds so as to vest the title in fee in him. The answer denies the material charges of the bill. The learned vice-chancellor held that neither complainant nor defendant was entitled to the whole property; that in equity it belonged to them for their joint benefit as if they were tenants by the entirety. The decree so adjudges. This view necessitated an amendment of the bill, which was permitted, charging that the properties described in the bill were to be held in trust by the defendant for herself and complainant as a common hoard for their joint benefit and lives, and that upon the death of either the moneys and the properties should belong to the survivor. Notwithstanding this change of front, however, the complainant, by his amended bill, prayed in the alternative for a decree either — first, that the properties are held by the defendant in trust for the complainant, and that she make deeds to vest the title in fee in him, that he may have full possession and control, and that she may account for the rents and profits; or second, that the properties are held in trust during their joint lives, with right of survivorship, and that the complainant have an accounting of the rents and profits. The court thus not only changed the issue as made by the parties, but changed it in a way to which the complainant, even when he amended his bill, was unwilling to yield full assent. The court’s conclusion was an inference as to the intent of the parties which is not sustained by pleading or evidence on either side.

The complainant, a i laborer, and defendant, a servant, were married in 1885. They lived together until 1908, in New York and in Jersey City, and accumulated the property in question out of the earnings of both, and of their children. During most of the time the complainant worked in a factory, and the wife conducted a saloon under a license in the husband’s name. He rendered assistance in the saloon before going to work in the morning and after returning at night. His earnings in the factory seem to have been insufficient for the support of his family, and the savings which were invested in the properties were made possible by the profits of the saloon business and by hoarders and perhaps the labor of the minor children. It is immaterial from what particular source the savings came. The funds were mingled, and unless the wife’s claim can be sustained on some other ground, the savings cannot be called her individual property. The properties in question were bought at different times, beginning with 1896. The husband knew of the purchases, the first two at or before the time of purchase, and the last two within a short time after. The vice-chancellor based his inference that the savings were the property of both complainant and defendant- — a “common hoard”-— upon the station in life of the parties, and without evidence to that effect- he took judicial notice apparently, that it is the usual customary habit of such people to constitute the wife the treasurer and to turn all moneys from every source over to her. He limited this custom apparently, to what he called “low wage earners,” but did not define this term. What might appear high wages to one would appear low wages to a man more fortunately circumstanced. The test is too uncertain, and introduces one rule for one class of people and a different rule for a class with larger income without drawing the dividing line. The circumstances of tire parties may often be of great value as evidence of their intention, where their intentions are material to the issue, but the vice-chancellor did not treat his assumption of the customary habit of low wage earners as evidence, but rather as a rule of law. If the writer were to conjecture from his own experience and observation, he would think that the practice among men whose wages seem to him low, who are thrifty and saving, does not vary from the practice of salaried men who would not be called wage earners in the ordinary sense. No doubt in all ranks of society the wife is often made the cashier or treasurer, and it is sometimes done, perhaps, with the view that she will hold the property for the common benefit, but it is also done oftentimes with the intent that the properly shall be accumulated in her name and be free from the business risks or the claims of creditors of the husband. If the theory of a common hoard is to be applied where the title is in the wife, it must be equally applicable in similar circumstances where the title is in the husband, and the necessary result would be that the equitable title to property would depend upon a nebulous line of distinction between “low wage earners” and those earning more. In the present case, whether the savings -were common property or the husband's property, the title to the real estate was put in the wife. The evidence, instead of indicating that the title was taken in the name of the wife for the purpose of being held for the joint benefit, indicates rather that it was put in her name either with no agreement at all as to equitable rights, and certainly with no recondite notion of tenancy by entireties, or else for the purpose of securing it against a judgment creditor of the husband. The complainant testifies that his wife said it was better to put the horrse in her name on account of an outstanding mortgage on a saloon they had conducted in Morrisania, and that he was satisfied with that. Although he adds that his wife said, “It belongs to you as well as to me,” this does not avail him in view of his admission that the object was to keep it from a possible creditor. With reference to another property, he distinctly says that she wanted it in her name so that an existing judgment creditor of his could not get it; he says he expressed a desire to pay that creditor, but, in an examination upon supplementary proceedings, he denied the ownership of property; when first interrogated by his counsel, he said that he was satisfied, after they got into conversation about the judgment, that she should take the property in her name; immediately afterwards his counsel, by a most suggestive question, got him to testify to the contrary. Nowhere does he testify to any such arrangement as the vice-chancellor has made by the decree, and the theory of his bill is cogent evidence to the contrary. The funds, far from being treated as a common hoard from the beginning, were kept in separate bank accounts while the parties lived in New York; it was only after reverses there and removal to New Jersey that the wife alone handled the money.

This theory of a common hoard for the joint benefit among low wage earners finds support only in the opinion of the court of chancery in Fretz v. Roth, 68 N. J. Eq. (2 Robb.) 516. The decree in that case was reversed (70 N. J. Eq. (4 Robb.) 764), because we took a different view of the facts of the case other than those relating to the manner in which the funds were kept. We said nothing in our opinion with reference to the vice-chancellor’s theory, because it was unnecessary to say anything. We did not reverse his view, because we did not deal with it at all, and it is very unsafe to infer that because, we passed it in silence we therefore approved it. If we are to be held to approve everything in the opinion below which we do not expressly disapprove, onr labors will be seriously increased.

The conclusion reached in the court of chancery in this case conflicts with the rule established by numerous cases in this court. In Cutler v. Tuttle, 19 N. J. Eq. (4 C. E. Gr.) 549, Mr. Justice Depue said: “There is no doubt that pajunent of part of the purchase-money will create a resulting trust to the extent of that payment, but the amounts paid by the different parties must be shown with certainty, and a resulting trust will not be held to arise upon payments made in common by one asserting his claim and the grantee in the deed, when the consideration is set forth in the deed as moving solely from the latter, unless satisfactory evidence is offered, exhibiting the portion which was really the property of each, and establishing the fact that the payment was made for some specific part or distinct interest in the estate.” In Midmer v. Midmer’s Executors, 26 N. J. Eq. (11 C. E. Gr.) 299 (at p. 304), Vice-Chancellor Van Fleet said: “Nothing short of certain, definite, reliable and convincing proof will justify the court in divesting one man of title to lands, evidenced by a regular deed, and putting it in another.” The rule was applied by Chancellor Nunyon in a case of great hardship where the effect was to leave $60,000 worth of property in the name of the wife, the money for which had been furnished by the husband, although they had been divorced for the adultery of the wife and she was permitted to enjoy the property with her paramour. Lister v. Lister, 35 N. J. Eq. (8 Stew.) 49, affirmed on Chancellor Runyon’s opinion, 37 N. J. Eq. (10 Stew.) 331. In Read v. Huff, 40 N. J. Eq. (13 Stew.) 229, where the heirs of the husband sought to establish a resulting trust in lands, the title to which was in the wife, we said (at p. 234): “It is also well settled that the proof which shall rebut the presumption of a gift in favor of a child or wife, shall be equally satisfactory and explicit with the-proof required to establish a resulting trust; the circumstances relied on must be convincing and leave no reasonable doubt as to the intention of the party.” The same rule was recognized in Duvale v. Duvale, 56 N. J. Eq. (11 Dick.) 375, although in that case the court held that the proof showed that the settlement upon the wife was not of the whole estate in the land but of a limited estate therein. The present ease falls far short of the established standard of proof. It seems rather that the intent of the parties was to vest the absolute title in the wife free of any trust, perhaps with the natural expectation on the part of the husband that they would share the benefits.

The decree must be reversed in order that the bill may be dismissed. The defendant is entitled to costs both in this court and the court of chancery.

For affirmance — Garrison, Mintuen, Vroom — 3.

For reversal — The Chief-Justice, Swayze, Parker, Bergen, Voorhees, Bogert, Vredenburgh, Congdon — 8.