author: Per, Curiam.

text:
    In the matter of the estate of Bridget Doyle, deceased.
    [Decided March 3d, 1924.]
    On -appeal from a decree of the prerogative court advised by Nice-Ordinary Bentley, who filed the following opinion orally:
    "On May 8th, 1921, Bridget Doyle, a resident of the city of Bayonne, New Jersey, died leaving an estate estimated to be worth about $35,000, and a paper-writing purporting to bo her last will and testament, bearing date March 4th, 1919, which was admitted to probate by the orphans court of Hudson county by an order bearing date the 4th day of October, 1922, and from which order this appeal is taken.
    "The testimony is most voluminous, so> that it is impracticable to attempt to set out at length even a synopsis of it. The grounds of appeal are, the lack of testamentary capacity upon the part of the decedent, and fraud, and undue influence. This is purely a fact case. No questions of law are presented. The decision of the orphans court, of course, is not binding upon me, and only calls for a careful scrutiny of the evidence before reaching a result different therefrom. Schuchhardt v. Schuchhardt, 62 N. J. Eq. 110.

    “The following facts are conceded:
    “The deceased was a very' elderly woman, probably nearly eighty years of age; that she left surviving her Theresa O’Mara, Mary Shannon, Alice Eogers and Catherine Shull, daughters; Patrick Doyle, her widower; Edward Doyle, a son, and Beatrice Seiple, Laura Doyle, Thomas Doyle, Marie Doyle, William Doyle, Florence Doyle and Vincent Doyle, grandchildren of deceased, being children of sons who predeceased the decedent. That she was born in Ireland, and that her husband was a saloonkeeper. That in the month before the making of the will she liad undergone an operation for the removal of a carbuncle from her neck, and that she was practically confined to* her bedroom at the time of the making thereof. That about eleven o’clock on the night of March 4th, 1919, counsel for the appellees was called to the home of the decedent’s daughter, Theresa O’Mara, where the decedent was living at the time; that counsel took her instructions, making pencil memoranda thereof, and then in longhand, drafted the final copy whereupon, at her request, he called Mrs. O’Mara’s husband and one James M. Shannon, the husband of another daughter, who with Mrs. Shannon were in the O’Mara hqme, to act as witnesses. That when they came into the room where the decedent was, the will was formally executed according to the requirements of the statute, counsel adding his own name as a witness to those just mentioned, which ivas also done at the request of the decedent.
    “About a month afterwards Mrs. Doyle went away from the O’Mara home and never returned to it to live, but did on one occasion go there to get some clothing and other personal effects, which resulted in her mailing a complaint to the appropriate police magistrate for the purpose of accomplishing her mission. From this point on the testimony is conflicting, but I think the truth is very evident. Thirty-three witnesses testified in the orphans court, nearly all of them being interrogated as to the mental capacity of the deceased to make the alleged will. A great mass of testimony was produced to show that Mrs. Doyle would take food from the refrigerator in hot weather and hide it in her room, where it would spoil; that she,frequently accused her husband of immoral conduct with other women when he was a very old man; that she accused Mrs. O’Mara, her daughter, with having kept her under the influence of drugs, and had kept her in some sort of outhouse for two days, although, clearly, no such occurrence ever took place; that she was exceedingly profane in her language, calling down the most appalling-curses upon some of her children. That she would pick holes in her face and rub cold cream and ammonia into them. That she would frequently hide articles which she had purchased, with no occasion being shown for such hiding. Tliat she bought milk and drank it at the store, while there was milk for her to drink in the home of Mrs. O’Mara, apparently caused by reason of her fear of being poisoned. That she told of seeing her husband, then a very old man and seriously ill with pneumonia, give money to his nurse for immoral purposes. She complained the she had been robbed by people who were innocent thereof. That from having been a very neat housekeeper she had degenerated into the most slovenly habits and had allowed filth and even vermin to accumulate. That on the occasion of her husband being afflicted with pneumonia, when the nurse complained of the vermin and a large hole in the mattress, she refused to supply a new one, and said that he had slept upon it for thirty or forty years and that it was good enough for him. Refused to purchase medicines that the nurse required, saying that her husband was as well as she was, although their family physician of many years had informed her that her husband was very ill. This nurse testified that Mrs. O’Mara and Mrs. Rogers, two of the proponents of the will, told her that the deceased’s mind was unbalanced; that there was a distinct failing of her memory so that sometimes she would • forget whether some member of her family was alive or dead, as, for instance, when her son died in 1918, she appeared to have no sorrow, brrt later on would weep about his death and at other times ask how he- was. Sought to have a dress made of a piece of soiled cretonne and two burlap bags. Complained of imaginary assaults made upon her by her aged husband so that she did not want to sleep with him, and a great many other instances, while through all the testimony runs a strain of suspicion against the sexual irregularities of her aged husband and fear of injury at the hands of her daughter.
    “There is one instance, of which much was made on the argument, where the witness Kroesen testified to a conversation with one of the appellees, Mrs. Rogers, when the latter told him that on one occasion in a church at Phillipsburg, Mrs. Doyle had created a disturbance, and the priest had been obliged to send her out of the church. Counsel for the appellees maintained that this incident, if proven, would have been definitely proved by securing the attendance of the priest, or some member of the congregation of that church, as a witness. The incident, however, is not of very great importance, and I suppose that the appellees might argue with equal force that, the allegation being there, it was equally incumbent upon the appellees to produce a witness or witnesses to deny the truth of it. • It must be remembered that this was only a statement of a remark attributed to one of the proponents. This is of no very great moment.
    “It seems to me, in a hopeless conflict of testimony such as this, where I have not had the benefit of observing the witnesses whose testimony was taken in the orphans court, that the controlling facts must be contained in the testimony given by Doctors Keegan, Shull and King. Dr. Keegan had been the family physician of the decedent for a period of ten years. In addition, it was stated, without contradiction in the argument, that he has subsequently married into the family of one of the appellees, and, upon every consideration, it would seem, had the strongest reasons for testifying to the testator having been of testamentary capacity at the time of the making of the will. Notwithstanding, he has persistently, both on his direct and cross-examination, refused to testify as to whether or not she was of sound or unsound mind, taking refuge behind the objection that he had not agreed to give his opinion. This man, by reason of his professional training, his long attendance upon her, and his opportunity to observe her, would have been one of all witnesses who could have enlightened the court. His refusal to do so, under the familiar rule, must be taken as an indication that if he would have testified to his belief it would have been that she was not possessed of the mental capacity necessary to make a valid will. This conclusion is fortified by his commencing to outline certain acts on the part of the deceased indicative of a diseased mind, such, for example, as the unnatural indifference to the serious illness of her aged helpmate, and then his subsequently failing to remember anything else.

      “Iii the testimony of Dr. Shull, which was taken at Stroudsburg, Pa., he says that he attended the deceased in 1918 for bronchitis, and one month prior to her death for a fracture of the hip; that in 1918 he made no particular observation of her mental condition, “though I would say at the time she ivas peculiar and suffered somewhat from delusions. During the last month of her life she was insane, suffering from illusions, hallucinations and delusions, was irrational and mentally incompetent.” Subsequently, he testified that she suffered from senile dementia, softening of the brain, and that, in his opinion, the disease had its inception several years prior to his first visit to- her, which, as has been said, was in 1918, or several months before the making of the will, and that, consequently, the disease began at least several years prior to that time. These statements on the part of Dr. Shull are uncontradicted, because no cross-interrogatories were read to him.
    “Dr King, one of the most eminent specialists of the state, testified, in answer to a hypothetical question and upon consideration of the testimony which ho has read up to the time of his examination, that the deceased was of unsound mind. I realize that ho had not the advantage of having examined Mrs. Doyle, but I am inclined to place the greatest reliance upon his opinion, in view of his admitted qualifications and his high standing in his profession, as well as the great faith that our courts have always had in his ability and honor as a professional man. He says that the hypothetical question, to which I have alluded, presents the typical case of senile dementia; that this is a progressive disease, incurable, and that on the 4th day of March, 1919, when the will was made, it was, in the case of Mrs. Doyle, well advanced.
    “It is true that counsel for the proponents in the court below most skillfully cross-examined the witness, and he has, with equal skill, pointed out in his brief the weaknesses so created by him in the testimony of the caveators; and yet, bearing in mind all that he says, it seems incredible that so many witnesses from such widely-scattered places, representing so mail}'- walks of life, could have successfully invented the stories they have told of the actions of this old woman.
    ■ “The testimony of the orphans court was taken over a period beginning November 15th, 1931, and ending June 3d, 1933, and it would be strange indeed, in so earnest and hard-fought a contest as this was under those circumstances, if a number of discrepancies did not appear. None of them, however, are of that class that would cause a trier of facts to apply the maxim fcilsus in uno, falsus in omnibus. Consequently, the facts to which lay witnesses testified, corroborated by the powerful testimony of the three doctors I have named, convinces me that Bridget Doyle was not competent to make a will on the 4th day of March, 1919.
    “It would be intolerable to attempt to set out, as I have indicated, an analysis of all the testimony that has been produced, but I feel that I should say that I am not impressed by the testimony of either Dr. Hammill or Father Monaghan. In the case of Dr. Hammill, he was substituting for Dr. Keegan following the operation upon Mrs. Doyle, to relieve her of a carbuncle. This means, of course, that he was calling and dressing the wound. Under, these circumstances, notwithstanding what he says, he did not give attention to the mental condition of this woman that a doctor would give to one of his regular patients, except, of course, a careful application of surgical dressings.
    “In the case of Father Monaghan, it would be unfair to expect a busy parish priest to bear in mind, after a lapse of years, the condition of innumerable parishioners upon whom his office makes it necessary to cali. I can well imagine, in addition, that this old lady, for all her years, would put her best foot forward to make a good impression upon her spiritual adviser and confessor. It is common knowledge that the members of the clergy are all held in high veneration, especially by the female communicants of their churches, and Father Monaghan’s testimony, in effect, is only that he did not observe any mental incapacity. Clearly, he did not testify from any active memory, but was very careful, and, as would be ejected, honest to point out in his answers that he was only testifying as he was because otherwisé his notes would have been different from what they were. For example, when asked upon the stand from what he was reading, he said notes made of sick calls, without which he could not testify. And when asked if she made her confession intelligently he answered in the affirmative, but qualified it by saying that he was guided by what he had on his sick-call memoranda, because if she had not known what she was doing he would not have administered all the-sacraments to her.
    “I desire to advert to another subject discussed on the argument and to which otherwise 1 would have given no consideration: Mr. Brenner is not on trial. There is not the slightest evidence of any wrongdoing upon his part, nor is there any charge or insinuation that he was a party to any such. He was called, as any other lawyer might have been called, to draw a will for the aged person. The man who sent for him was one of his clients. There- was nothing to put him upon his guard so- as to make searching examination of the decedent for the purpose of determining his opinion of her state of mind. He found a very elderly woman who wished to have her will drawn, and he took from her all the directions and drew it and supervised the execution of it. I do not feel there is the slightest reflection upon him, and point to the innumerable cases where eminent and irreproachable counsel have drawn wills that were subsequently refused probate because of testamentary incapacity. In the case of B-oisaubin v. Boisaubin, 51 N. J. Eq. 252, the ordinary, Chancellor Magill, pointed out that the will in that ease was drawn and witnessed by Vice-Chancellor Pitney, who. at the time of the writing of the ordinary’s opinion, was a member of this court. Yet it was considered no reflection upon that vice-chancellor when the will was defeated for fraud and undue influence. It would be ridiculous to hold counsel accountable for the mental condition of every testator for whom he draws a will.

      “Even with the presumption in favor of testamentary capacity present in my mind, I feel constrained to hold that Bridget Doyle did not possess testamentary capacity on the 4th day of March, 1919, and, consequently, that the order for •review should be reversed. This makes it unnecessary to give my reasons for my belief that there was no fraud or undue influence exercised over the decedent.”

      Messrs. Lazarus, Brenner & Vickers, for the appellants.

      Messrs. Benny & Qruden, for the respondents.
   Per, Curiam.

The decree will be affirmed, for the reasons stated in the opinion delivered by Vice-Ordinary Bentley in the prerogative court.

For affirmance—The Chiee-Justice, Tren chard, Min-turn, Black, Katzenbach, Heppenheimer, Gardner, Van Buskirk, Clark—9.

For reversal—Kalisch, Campbell—2.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
      Melvin O. Hollis v. Mabel Lloyd Hollis.
    [Decided March 3d, 1924.]
    On appeal from a decree in chancery advised by Ingersoll, V. C.

      Mr. Clarence L. Cole, for the appellant.
   Per Curiam.

The appellant filed a petition for divorce against his wife, charging her with adultery. No answer having been filed by the wife, a reference was made to one of the special masters of the court, directing him to ascertain and report as to the truth of the allegations of the petition and his opinion thereon. Upon the hearing had before him the special master held that the petitioner had failed to prove the charge laid against his wife by satisfactory and convincing proof, and for this reason advised that his petition be dismissed. The petitioner thereupon filed exceptions to the finding of the special master, and, after a hearing upon those exceptions, they were overruled and a decree entered dismissing the petition. From this decree the petitioner has appealed.

An examination of the proofs taken in the court of chancery and sent up with the appeal satisfies us that the finding of the special master was entirely justified. To establish the existence of adultery the circumstances exhibited by the proofs must be such as would lead the guarded discretion of a reasonable and’ just man to that conclusion. Berckmans v. Berckmans, 16 N. J. Eq. 122. In our opinion the evidence submitted falls far short of measuring up to this standard, and, therefore, the decree appealed from will be affirmed.

For affirmance—The Chief-Justice, Trenchard, Min* turn, Kalis oh, Black, Katzenbach, Campbell, Clark —8.

For reversal—Parker, Heppenheimer, Van Buskirk—3.


author: Pee Curiam.

text:
    L. Balk Co-operative Company, Incorporated, complainant, v. International Fur Workers Union of the United States and Canada et al., defendants.
    [Decided January 10th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan.
    Minturn, J. (dissenting).
    The active litigating parties to this controversy were engaged in the manufacturing business at New Brunswick, in this state. The complainants not only own the plant, but persist in the feudal claim that they own the labor of their employes as well, upon the strength of our decision in Brennan v. United Hatters, 73 N. J. Law 749, a determination which must be now read in conjunction with our recent decision in Courtinard v. Gray Burial Co., where the right of a servant to freely choose his employer and employment is vindicated upon the theory that he is a sentient being, endowed with the human faculties of will, memory and understanding, and as such capable of being argued with and convinced by the persuasion of his fellow-man, when such arguments are unaccompanied by force. This right was also accorded to him over twenty years ago by Vice-Chancellor Pitney in
      Frank v. Herold, 63 N. J. Eq. 443. These two defendants were not parties to the suit, nor were they parties to the injunctive order to show cause which in this proceeding answers the purposes of an indictment in the criminal law. Nor was the order served upon Go-ldenburg, whose only knowledge of its contents consisted in what he had casually heard, without reference to its details. At law, manifestly, a conviction obtained upon an indictment under such circumstances could not stand. He was not in the employ of complainants, but had recently joined the labor union. He was employed in a similar business in Newark, and,.of course, was interested in the strike at complainant’s plant, and during his spare time went to New Brunswick to see his fellow-workers, and to attend their public meetings, rights and privileges, which he had a legal right to- exercise as a citizen. He did not picket but walked the streets, and never went nearer than the distance of a block to the plant. ■ But three employes, who plainly prevaricate in their statements, one of whom the trial court expressly discredited, charged defendant with stating, “don’t you fellows go to- work. If you do we’ll get you.” He denied this charge, and in a court of law his denial would purge him of guilt, and would entitle him to an immediate discharge from custody. 6 R. C. L. 534.

    To entertain a reasonable doubt in such a situation is equivalent to- the- finding that the defendant is not guilty. The law requires us to- satisfy our consciences beyond a reasonable doubt of the defendant’s guilt and' to give him the benefit of all doubt arising upon the testimony, as the ease is essentially one of a criminal nature. In re Verdon, 91 N. J. Lam, 491; Staley v. South Jersey Co., 83 N. J. Eq. 300.

    Reasonable doubt has been defined by this court in State v. Fisher, 95 N. J. Law 423, as “That state of the case which, after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge-.” Let us apply that rule of moral certainty here. In applying it we must recall that the innocence of these defendants is presumed. They are not obliged to prove it.
    Goldenburg accompanied Corbett, upon a Sunday afternoon, to the house of an employe named Husch, with whom he was well acquainted, and the latter testified that Corbett stated that “anybody who went back to work would be carried out on a stretcher.” Both Corbett and Goldenburg deny that either of them so declared, but both state that Husch said: “Now, if you fellows ain’t going to keep away [from the plant] we will carry you away on a stretcher.” The same rule of reasonable doubt, based upon a moral certainty, in the face of contradictory testimony, where neither of the defendants stand impeached for credibility, applies here, and entitles both of them to a discharge. Manifestly, if this case carried with it the death penalty, upon conviction, as in other days it did, no member of this court, it is safe to say, would vote to sustain these convictions. Yet, it should not be overlooked, that by sustaining them as the result of a trial without jury, in a criminal case, and where, in the .language of Mr. Justice Garrison in the Sialey Case, the trial court enjoys the unique distinction of being “both judge, jury and accuser as well,” we are, by our affirmative determination, shortening the social, political and civil lives of these defendants to the extent of their prison sentence. Assuredly no jury constituted of men and women of the vicinage, under the directions concerning reasonable doubt, and the presumption of innocence, which we are accustomed to declare as the guiding rule of law at the circuits, would convict these defendants, and deprive them of their liberty and happiness, upon testimony which bespeaks upon every page that industrial animosity common to this unfortunate social warfare, and where the only test of illegality and proscription should be not the application by strikers of the legal, constitutional and American rules of ordinary civil life in every other occupation, but the actual or reasonable threatened exercise of force upon a worker unwilling to be coerced.

      In such a situation, the only opportunity of obtaining anything akin to jury trial for defendants is furnished by this court. All the presumptions, rights and privileges to which a defendant is entitled at law, before a jury of his peers, should be invoked and applied in his behalf here; and in this instance the application of those principles should lead to the discharge of both defendants. Upon those grounds I shall vote to reverse in both cases, with the observation that manifestly the time is not unpropitious for legislative intervention providing for the application in the first instance of the ordinary constitutional and legal procedure of trial by jury in this class of cases.

      Mr. Walter C. Sedam, Mr. Henry Carless and Mr. Samuel F. Leber, for the appellant.

      Mr. Russell E. Walson, and Messrs. R. E. & A. D. Walson, for the respondents.
   Pee Curiam.

The record in this ease discloses that the two appellants, Milton Corbett and Perry Goldenburg, were convicted in the court of chancery of contempt of court of violating an injunction order of that court. Our reading of the record leads us to the conclusion that the conviction of Milton Corbett should be affirmed. The conviction of Perry Golden-burg should be reversed, on the ground that the evidence doesn’t satisfy us that Perry Goldenburg intentionally violated the injunction order of that court beyond a reasonable doubt. The judgment of conviction as to Milton Corbett is affirmed, the judgment of conviction of Perry Goldenburg is reversed and set aside.

On appeal of Corbett—

For affirmance—The Chief-Justice, Trenchard, Parker, Kalisch, Black, Katzenbach, White, Hefeenheimer, Gardner, Ackerson, Van Buskirk—11.

For reversal—Minturn—-1.

On appeal of Goldenburg—

For affirmance—None.

For reversal—The Chiee-Justice, Teen chard, Parker, Minturn, Kalisch, Black, Katzenbacii, White, HepPENHEIMER, GARDNER, ACKERSON, VAN BuSKIRK—12.


text:
    Ben A. Matthews, trustee in bankruptcy, &c., complainant-respondent, v. Bessie Pope and James E. Pope, defendants-appellants.
    [Argued November 26th, 1923
    Decided January 25th, 1924.]
    On appeal from tbe decree advised by Vice-Chancellor Backes, whose opinion is reported in 95 N. J. Fq. 76j 1 N. J. Adv. R. 1182.

      Mr. Robert II. McCarter (Mr. Charles L. Garrick and Mr. Benjamin F. Fdsall, on the brief), for the appellants.

      Mr. Harvey T. Mann (of the New York bar), Mr. Benjamin W. Weinberg (on the brief), for the respondents.
   Per Curiam.

The facts are stated with substantial correctness in the opinion filed by the learned vice-chancellor, and the evidence amply supports his conclusion that the deed sought tc be set aside was invalid as in fraud of creditors. The resultant decree that the defendant Bessie Pope in equity holds title as grantor thereunder in trust, for the complainant, and directing a conveyance and account of rents, &c., was therefore correct, and will be affirmed.

We have not found it necessary to consider the point suggested in the opinion, that Mrs. Pope in her capacity as principal stockholder of both companies was chargeable in law with notice of their insolvency, for the evidence is plenary that she had actual notice thereof, or of such facts as would necessarily lead to knowledge of that condition.

Certain details in the recital of facts by the vice-chancellor were criticised in the brief end argument, but they are not of sufficient consequence to require comment, for, if incorrect, the result would in no way be affected.

The decree will-be affirmed.

For affirmance—The Chibe-Justice,, Trenchard, Parker, Minturn,- Kalisch, Black, Katzenbach, Campbell, Heppenheimer, Gardner, Ackerson, Van Buskirk, Clark —13.

For reversal—None.


text:
    Samuel Dixon Mayhew, petitioner-appellant, v. Mable Craig Mayhew, defendant-respondent.
    [Decided January 25th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who delivered the following opinion orally.
    “I doubt whether there would be any substantial benefits in my taking this case under advisement; I am called upon to pass upon this branch of the law so frequently that I doubt whether any additional reflection in this case would be of any service.

      “This case, after all, reduces itself largely to- a question of fact, as all cases do where the law can be readily defined, and I think the law can be said to be defined in this case. Of course, in domestic relations varying circumstances are innumerable, and it is difficult to arbitrarily define the law in a manner that will cover all situations; but the principles underlying the decisions I think cover almost every conceivable situation that may arise.
    “There is no doubt touching the provisions of our statute to the effect that in order to dissolve a marriage upon the ground of desertion the desertion must not only be continuous for a period of two years and willful for that period but it must also be obstinate during that entire period. Statutory obstinacy has been defined many times, and the definition which appears to have been uniformly accepted is that a desertion is obstinate within the meaning of our statute only when it is of a nature that will resist the will of the deserted party to terminate it; and my observation has long been that the best test and surest test to determine whether the element of obstinacy is to be found in any given desertion is for the deserted party to make at least some real effort to terminate it. In some cases, where it is obvious that any effort upon the part of a deserted party to terminate a desertion would be fruitless, a party may be excused from making any effort to terminate the desertion; but the real inquiry is whether the inherent nature or character of the desertion is such that it resists, or is of a nature that would resist, the will of the deserted party to terminate it.
    “It is also held by our court of errors and appeals that the duty to terminate a desertion rests more heavily upon a husband than it does upon a wife, and I have already suggested that the duty of a husband to make some effort to terminate a desertion may not exist at all if circumstances are such that it clearly appears that the effort would be futile; but ordinarily that duty exists unless it is excused by circumstances appearing in the case. The husband must in the absence of adequately excusing circumstances endeavor to procure his wife’s return, and if he is at fault at all in the occasion of the desertion the duty weighs more heavily upon him than it would in a case where he was not at fault. But the duty is ever present unless excused by special circumstances, and I think that where the convenient opportunity exists for the husband to at least request his wife’s return, if he fails to do so he should assume the burden of establishing with entire clearness the fact that it would have been futile for him to have done so. It will not suffice to say that the husband had a natural or ev'en a just grievance on account of his wife’s misconduct in deserting him, or even that she has failed to adequately support her claim of a grievance by the necessary proofs in a maintenance suit; to be justified his failure to give some degree of encouragement to her return must not be based upon his mere disapproval of her desertion; it must be because any effort on his part to induce her return would have been clearly futile and unavailing.
    “Now, in this case, so far as I am able to determine, there has never been an effort upon the part of Doctor Mayhew to terminate this desertion—to induce his wife to return. When I say there has never been an effort on his part I mean anything like such an effort as would naturally and appropriately be made by a husband who desired or even sought to procure the return of his wife, or who sought to have his wife believe that he desired her return.
    “It is true that he claims that when she took the goods away he told her to stop her nonsense, or something of that nature, but even by his narration of that incident, which is differently narrated by his wife, there appeared little, if any, real effort upon his part to bring about a reconciliation with his wife. He knew full well what her grievances were and yet, so far as has been indicated by the evidence, there was no word or suggestion on his part that he would make the slightest effort to remove any unpleasantnesses that existed or had existed in his home prior to that time.
    “At the trial of the maintenance suit which occurred during their separation he was asked on the witness-stand if he was willing for her to return and he answered affirmatively. To construe that into a real invitation for her return would be going very far. It would no doubt have been destructive of his defense of the then pending suit against him if he had answered in the negative.
    “Subsequent to that it is not claimed that he has at any, time performed any act or uttered any word that gave indication of any kind of a purpose on his part to procure his wife’s return, or even a willingness to have her return, or a desire that she should think him still willing for her to return. He has, notwithstanding a favorable decision in the maintenance suit, made it easily possible for his wife to stay away. Of course, I do not criticise him for sending his monthly payments to his wife, especially in view of the fact that his child was in her custody and he as a father could not see that child suffer for any misconduct or stubbornness upon the part of the wife, but nevertheless his monthly installments in the form of checks to his wife made it possible for his wife to live away from him—made it possible for his wife to fail to return to him during all of the rest of the two years’ period after she had left, and it is entirely probable that a refusal on his part to make further payments for her support away from him would have occasioned her return. That, in my judgment, he did not want.
    “Each month his letters were being sent to her enclosing his remittances, and in no letter was there any word in any way indicating a desire to be relieved from those payments and for her to share his household as his wife, much less any indication on his part that if she would come back or if she did come back she would be received as his wife.
    “She, on the other hand, testifies that on at least one occasion she wrote him a letter which, if written in the form that she states, was a clear enough indication to him that she wished to come back and would come back if he would express but a faint desire that she should come. That letter, he claims, did not contain the specific expressions in the form that Mrs. Mayhew has testified to them, and what the truth may be it is difficult to determine with entire certainty. But on at least one occasion the doctor saw her personally at her home in Atlantic City, and he does not claim that while there he made any suggestion to her that he would like her to return or would be willing that she should return or that if she would return he would make any effort to render her home pleasant for her, or accord her the privileges due to a wife. Indeed, I think he says that on one occasion he told her that if she did return to him—in response to her suggestion touching her return—that it would be necessary for him to make a home elsewhere than Wildwood on account of the publicity that had been given to their affairs; that suggestion, to say the very least, was not calculated to induce her return and was obviously not so intended.
    “Now, in view of those circumstances, cair it be said to be susceptible of doubt as a fact that Mrs. Mayhew’s attitude throughout has been exactly what she says, especially since the trial of the maintenance suit, namely, a willingness to return to her husband if he desired it, or if he should in the faintest manner invite it ? It seems to me impossible to conclude that since the trial of that maintenance suit there has been any time—and possibly at no time before—when, had Doctor Mayhew approached his wife in anything like the spirit that a husband does approach a wife when he desires her return, and said to her in a proper manner that he wished her to return, or even that he was willing for her to return, or that should she return to him he would treat her as a wife should be treated—I say, it is impossible for me to conclude that in such circumstances she would not have returned to him, I am sure she would not have refused to return—I cannot doubt it—and I think the testimony, and especially the attitude of the parties on the witness-stand, impels that conclusion.
    “On the other hand, I think the testimony impels the conclusion that Doctor Mayhew has not desired her return, and has studiously avoided encouraging her return. It may be that both he and his wife have had a false pride; that he did not want to admit even by possible inference that he had done anything wrong or had been in the slightest degree in fault, as any advances on his part from his standpoint might have been by him thought to imply. It may be that he has occupied the attitude that many married people do occupy toward each other, an attitude where they seem to shrink from making any concessions at all; a false pride, which is the most foolish thing in the world and which leads to endless troubles, and it is quite possible that both he and she have shrunk from apparent humiliation to the other in making any proffers or advances of reconciliation.
    “My firm belief is, however, that had the doctor in the slightest degree indicated to his wife that he wanted her back or that he was willing to take her back she would have responded immediately, and I believe that he also entertained that very view. So far as the obstinacy of the desertion is concerned—determination upon the part of Mrs. Mayhew to resist any reasonable effort upon the part of her husband to procure her return—I do not believe that has existed in her mind at any time, and I think that the reason no effort has been made to procure her return upon the part of the doctor has either been through false pride on his part or through a desire on his part to be rid of her—a desire to prolong the desertion for two years-—probably the latter.
    “It may be better for these parties if they were divorced, but that is a matter which the legislature must provide for; a court must accept the law of divorce as the legislature makes it. The statute says that unless this desertion has been obstinate for a period of two years there can be no dissolution of the marriage on the ground of desertion.
    “My judgment is and my belief is that the element of obstinacy is wholly wanting in this case. The notion that an effort on the part of the doctor to procure his wife’s return would have been futile, or even that he had any reason to think so, is clearly in conflict with the fact. His failure to invite her return was, in my judgment, due to his desire that she should prolong her desertion the full period of two years. I will so find and advise a decree dismissing the petition.”

      Mr. William, Harris, for the petitioner-appellant.

      Messrs. Cole & Cole, for the defendant-respondent.
   Per Curiam.

The decree will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Learning in the court of chancery.

For affirmmce—The Chibe-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Heppenhbimer, Gardner, Ackerson, Van Buskirk, Clark —13.,

For reversal—None.


text:
    In the matter of the probate of the last will and testament of Rynear H. Williams, deceased.
    [Decided January 25th, 1924.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Ingersoll, who filed the following opinion:
    “This is an appeal from an order of the orphans court of Atlantic county, admitting to probate the will of one Rynear H. Williams.
    “The question whether this paper should be admitted to probate as a will is presented to the prerogative court as an original question, and is to be determined not only upon the evidence taken before the orphans court, but upon that evidence together with other proofs taken here.
    “I am convinced that the decedent was, at the time of the execution of the paper in question, competent to make a will. He clearly possessed the ‘ability to comprehend those who-appear as the natural objects of his bounty, and appreciate the duty which recommends them for consideration.’ Smith v. Smith, US N. J. Eq. 566.

    “It is alleged, however, that he was suffering from an insane delusion when he executed the will, and that this is evidenced by the third clause of the will, which reads:
    “ 1Third—-I a-m not unmindful of my daughter, Florence Mason. She has already benefited, directly and indirectly from my estate; this, together with the fact that, in my opinion, she has not shown me the affection and respect due a father prompts me to exclude her from any further share or portion of my estate.’
    “Continuing the quotation from Smith v. Smith, supra,:

    “ Tt is not required that he shall in fact correctly ascertain the legal status of each person who apparently stands in natural relation to him. In the exercise of reason, he may mov'e upon premises established by false or insufficient evidence, or by mistake of law, and thus determine to exclude from his bounty those whom, but for his error, he would have recognized. The test is his ability to exercise reason and reach a rational conclusion, however erroneous, with reference to them. Stupid error in either his reasoning or conclusion, is not lack of testamentary capacity. But it is otherwise if he suffers from delusion. A delusion is the mind’s spontaneous conception and acceptance of that, as a fact, which has no real existence except in its imagination, and its persistent adherence to it against all evidence. Middleditch v. Williams, 18 Stew. Eq. 786.

    “ ‘Mistake, whether of fact or law, moves from some external influence which is weighed by reason. Delusion arises from morbid internal impulse, and has no basis in reason.’
    “There is sufficient evidence that Williams believed ‘that his daughter had benefited from his estate.’ While it is true that the ‘benefits’ he evidently referred to were not from his ‘estate,’ using that term in its legal significance, it is just as true that she benefited from the property which he considered as justly being his estate, that is the estate particularly consisting of the hotel property, known as the New England Hotel, in Atlantic City, a one-half title thereto being in his wife, who prodeceased him and which interest he believed was, upon her death, to be his.
    “His use of or acceptance of the nse of the word 'estate’ is not convincing that he meant it in its legal significance^ nor is such use convincing proof that he was suffering from a delusion concerning the benefits he believed his daughter had received from that property and which benefits she had in fact received.
    “Certainly nothing in the latter portion of the third clause: 'together with the fact that, in my opinion she has not shown me the affection and respect due a father prompts me to exclude her from any further share or portion of my estate’ can substantiate the charge of delusion. The facts were sufficient for him to arrive at such an opinion. It is not for us to determine whether such an opinion would be reached by us, but was it a rational conclusion.
    “Williams had believed his daughter 'had considered herself somewhat above him, that she apparently did not care for him, that she felt ashamed to see him, and when she did come to see him, it was always for money.’ That she had neglected him 'and that Mrs. Mason had involved him in litigation on two occasions.’
    “Whether Williams was justified in believing that his daughter did not care for him as a daughter should, is immaterial. He did believe it. She was a party in two suits, one of which was concerning' the probate of his wife’s will, and the other in reference to the title in and use of the hotel property, the one-half of which Williams believed should have belonged to him. There can be no question as to the legality of Mrs. Mason’s conduct in reference to her grandmother’s will or the distribution of that estate. She was without doubt legally justified in the steps she took in the matters, but they were such that Williams could, without delusion, believe that the facts stated by him in his will were true. This conclusion, that Williams was capable and was not suffering from a delusion, is confirmed by consideration of the testimony of Judge Shinn.
    “The only remaining question is, Was the will the result of undue influence, exercised by the benefician7, H. Elizabeth Weil?
    “It is sufficient that a careful reading of the testimony signally fails to satisfy the mind of the court that undue influence existed. Even if the burden of proof should be on the beneficiary (which under the evidence it is not) she has earfied that burden.
    “The result is, that the decree of the orphans court is affirmed.” '

      Mr. Lewis Starr, for the respondent.

      Mr. Emerson Richards, for the appellant.
   Per Curiam.

The decree appeal from will be affiremd, for the reasons stated in the opinion filed in the court below by Vice-Ordinary Ingersoll.

For affirmance — The Chief - Justice, Trenchard, Parker, Minturn, Kalisoh, Black, Katzenbach, Campbell, Heppenheimer, Gardner, Ackerson, Van Buskirk, Clark—13.

For reversal—None.


text:
    In the matter of the probate of the last will and testament of David Solomon, deceased.
    Argued November term, 1923
    Decided March 3, 1924.
    On appeal from a decree- of the prerogative court advised by Vice-Ordinary Fielder, who- filed the following opinion:
    “The voluminous testimony contains a mass of contradictions, not only as between the witnesses for the proponents and the caveators, but also as between the witnesses for each side. It shows that most of them have strong bias and prejudice, which, with 'their imagination, frequently influenced their statements. It shows great bitterness and ill-feeling between the proponent on the one side and her brother Philip and her two sisters on the other, and charges of attempt at murder, of adultery, of assault and batteiy, of living in a house of prostitution and of theft were freely made by the brother and sisters, one against the other. From the volume of irrelevant, inconsequential and contradictory testimony the following can be gathered:
    “David Solomon, the testator, died November 13th, 1922, at 11 a. m., at the age of seventy-six years. He left him surviving a widow, three daughters and two sons. He had had a paralytic stroke in 1918, and for some time before and up to his death he was afflicted with diabetes, Bright’s disease, a weak heart, a rupture and other minor ailments. The primary cause of his death was uremic coma. His first wife died January 20th, 1918, and he married again December 23d, 1918, and separated from his second wife early in 1920. His daughter. Mrs. Henrietta Milberg, and her daughter, were the only members of his household at the time of his death. He had made a will, dated August 4th, 1921, dividing his whole estate among his five children, share and share alike, and appointing his son Taylor executor thereof. On Sunday, November 12th, 1922, his physical condition was most serious, but he was able to converse and to move from his bed to a chair and back again, with assistance. His physician called on him about nine-thirty a. m., and was so alarmed over his condition that he advised him to send for his children, and when the testator said he did not want them, the physician took it upon himself to send for them, so that they might see their father before he died. He also called another physician in consultation between eleven and twelve o’clock, which other physician says that while the testator answered intelligent!}7 the few questions asked him, he was about dead when he, the physician, reached the house. About eleven a. m., on this dajq the' daughter, Mrs. Milberg, notified her attorney that her father wanted to make a will and requested him to come to their house for that purpose. Shortly thereafter the testator’s son Philip called at the house and, without Mrs. Milberg’s knowledge, obtained access to his father’s bedroom. When Mrs. Milberg learned of Philip’s presence she ordered him from the house, stating that his father did not wish to see him. He refused to leave and she summoned police assistance, and two policemen arrived, who were requested by Mrs. Milberg to remove her brother. In the presence of the officers, or by one of them, the testator was asked whether he desired his son Philip in the house, and the testator replied “No;” but Philip insisted upon remaining and created a disturbance; whereupon the policemen took him to the station-house, Mrs. Milberg accompanying them to lodge a complaint against her brother. At the police station Philip summoned an attorne}7, and the police authorities agreed to take Philip back to the house and ascertain his father’s wishes, Philip agreeing to leave without further trouble, in case his father said he did not want him there. It is alleged by Mrs. Milberg and some of her witnesses that while Philip was in his father’s bedroom, on the occasion of his first visit that day, he opened the illuminating gas jets in his father’s room, without lighting them, and allowed the gas to flow, the inference from the testimony of the witnesses being that it was Philip’s intention to asphyxiate his father, or to hasten his demise. T find no ground for such inference. But when the testator’s physician arrived for his third call that morning, during the absence of the party at the police station, he found the testator highly nervous and hysterical and in a fainting fit, or vertigo, and he discovered the room so full of gas that it affected him (the physician) and he at once had the testator carried to another room, where restoratives were applied. While the testator was being revived, Philip and his attorney, Mrs. Milberg and her attorney, the two police officers and several neighbors and friends, attracted by the commotion and excitement attendant upon Philip’s arrest, returned from the police station. The physician refused the party admittance to the sick room until he had restored the testator to consciousness, and then Philip was allowed to enter. Philip says that he asked his father if he wanted him to remain, but that his father was unconscious and did not answer. Other witnesses say that his father said “No;” but whatever occurred in this respect, Philip and his attorney were soon ejected from the house. While this was going on Mrs. Stein, a daughter of the testator, probably in response to the doctor’s message, called to see her father; but was refused admittance by Mrs. Milberg and her friends. Neither Philip Solomon nor Mrs. Stein was informed that Mrs. Milberg’s attorney was in the house for the purpose of drawing their father’s will. After Philip and his attorney had left the house, Mrs. Milberg and her attorney, the two policemen and the rest of the party, altogether twelve in number, entered the testator’s small bedroom and the attorney introduced himself and asked the testator if he desired to make a will, and the testator replied “Yes.” Mrs. Milberg and all the other persons who were present testified in this cause and their versions of the conversation which followed between the attorney and testator differ, it being obvious that some of them drew on their imaginations, rather than on their memories. Taking the testimony of the attorney as probably the most, accurate account, the attorney then' asked the testator of what his property consisted, and the testator replied that he had some money in bank and some real estate. The attorney next asked the testator to whom he wanted to leave his property, and the testator answered to his daughter, Mrs. Milberg. The attorney saw that the testator was a very sick man and he knew he had other children; but he did not question the testator as to his reason for disinheriting his other children and his widow, nor did he discuss the subject of the will or any other subject, for the purpose of satisfying himself that the testator knew what he was doing, in the ten minutes which elapsed from the time he entered the bedroom until he retired to another room to draw the will.. He returned in half an hour with a will by which the testator gave and devised his entire estate unto “my lojral, faithful and beloved daughter Henrietta * * * who has always so filialy, faithfully and loyally cared for and attended me for many years last past.” The attorney read the will twice to the testator and asked him if that was what he wanted to do with his property, and the testator replied: “I want to leave everything to my daughter, Mrs. Milberg, who has been my housekeeper for a long time. Yes, everything to my daughter, Mrs. Milberg.” The testator was then propped up in bed and, supported by Mrs. Milberg, signed the will in the presence of the spectators, four of whom attested the execution, and the attorney left, taking the will with him. It was then about two o’clock. Just after the will had been executed Taylor Solomon, a son of the testator, called to see his father and was admitted to his room. He says he took his father by the hand and said: “I am your son,” and endeavored to talk with him; but his father’s eyes were shut and he made no • response. At three o’clock, at the request of the testator’s sons, another physician called bn the testator and found him in a comatose condition, which in the doctor’s opinion had continued for two hours, from which he could not arouse the testator by shaking him and shouting at him. At five o’clock a committee from the lodge, of which the testator was a member, called on him. The family physician was there again for his fourth call that day. The member of the committee who testified said that during their visit the testator appeared to doze and wake up, and that in his waking periods they talked with him about ordinary matters, such as his health and whether he wanted a drink of w;ater, and that his replies were rational; but that he regarded the testator as on his death bed and in no condition to transact business. At eleven o’clock the following morning, less than twenty-four hours after the will was executed, the testator died.
    “The proponent points to the testimony of all those present at the preparation and execution of the will, as conclusive evidence that the testator was of sound and disposing mind, memory and understanding, and that in disposing of his estate he was not influenced by proponent.
    “I am not satisfied, however, that the. testator’s mind and memory were, at that particular time, sufficiently clear and sound to enable him to understand and appreciate the business in which he was then engaged, or to comprehend the property he was about to dispose of, the distribution he was about to make of it, the natural objects of his bounty and the relation of each of these factors to the other. The meagre information upon which the will was prepared -was elicited at a time when the testator was oir his death bed, suffering from a complication of diseases, and immediately after he had been “gassed” and had passed through trying hours of so m'uch excitement and physical and mental strain that he had fainted, and his physician had refused to permit anyone to see him until he had been restored to consciousness, and then a dozen spectators, including two policemen and Mrs. Mil-berg, crowded into his small bedroom. If the testimony of Mrs. Milberg’s daughter is to be .believed, the testator had said he did not expect to make a will that day because it was Sundajq and 3ret a strange attorney is brought to his bedside, who, instead of excluding everyone from the room and quietly and alone ascertaining the testator’s wishes and questioning him for the purpose of satisfying himself that the testator really and fully understood that he was depriving his other children of any share in his estate, in a short conversation, in the presence of a down curious persons, which consisted of a few questions on his part and brief answers on the part of the testator, learned what he thought the testator wanted, and so soon as his understanding of that last wish could be transcribed to paper and read to the testator, had him affix his signature with Mrs. Milberg’s assistance. I do not think it can be said that under these circumstances, and considering the testimony as to’ the testator’s condition befoic, at the time and after the will was executed, the testator fully undersood what he was doing.
    “The confidential relation which Mrs. Milberg bore to the testator and the physical condition of the testator on that day and the circumstances surrounding the preparation and execution of the will, raise the presumption that undue influence was exerted by Mrs. Milberg to induce the testator to gire his whole estate to her to the exclusion of his other children, which presumption, unless rebutted by satisfactory evidence, controls as a conclusion of fact. In re Cooper’s Will, 75 N. J. Eq. 177; affirmei, 76 N. J. Eq. 614; In re Morrissey’s Will, 91 N. J. Eq. 480.

    “At the time the will was being drawji and executed two of the testator’s children were excluded from the house by Mrs. Milberg, and during that whole period she had the advantage and influence of the presence and services of herself and her attorney with the testator. Mrs. Milberg denies that in any way, directly or indirectly, did she induce the testator to make a will in her favor, and there is no affirmative testimony that she did, hut she has failed to convince me that she maintained a disinterested attitude throughout the procedings of the da}'. Her testimony is evasive and contradictory, and her story as to how the will came to be prepared and executed, and how and why her attorney was called in to prepare it, instead of the attorneys who had theretofore attended to the testator’s legal affairs, is an example of her unreliability as a witness. She testified that two, days before the will was drawn her father requested her to send for his attorney, without stating his reason, and that she endeavored to find him, but could not; that her father had said nothing to her about making a will on the day in question, prior to the above-mentioned first visit of Philip Solomon to the house and that while Philip was there, the testator told her to send for her lawyer to draw the will and she accordingly telephoned him but did not tell him why he" was wanted and that she at no time talked with him about the terms of the will. When she was confronted with her daughter’s testimony, which was to the effect that at seven o’clock that morning the testator had placed some deeds and title abstracts under Mrs. Milberg’s pillow and had said to Mrs. Milberg: “My children do not care for me any more. Henrietta, I would like to leave everything to you, only it is Sunday, and I can’t.” She changed her testimony and said that following that conversation (in which no- attorney was mentioned) she called her attorney on the telephone and asked him to come to the house, but did not tell him for what purpose. Her attorney testified that she called him on the telephone at eleven o’clock that morning and told him to come to draw her father’s will. .In the will appear adjectives and other words describing the affection of the testator for Mrs. Milberg and his appreciation of her services to him—words which the attomej? does not say the testator used before the will was drawn and which he must have inserted in the will as a result of information from someone else, probably Mrs. Milberg. It appears from the testimony that Mrs. Milberg did not care foi and attend the testator for many years, because his first wife lived with him and eared for him to January, 1918, and his second wife from December, 1918, to early in 1930, and that Mrs. Milberg was a nurse whose services were engaged by physicians and others, and that for several years prior and down to the spring of 1922 her time was,largely occupied with this work and that she was living away from her father’s home. According to her testimony, she gave so much time to this work that she earned much money and was able not only to support herself and her daughter, but to make money presents to her father from time to time and to purchase jewelry from him. 'There is nothing in the evidence to convince me that the testator was not on terms of friendship with his other children, especially Mrs. Stein and Taylor Solomon, and such evidence as was offered to the contrary relates to conditions existing prior to August, 1921, when he executed a will under which all his children shared equally, and his son Taylor was made sole executor, and nothing appears in the evidence to show a change in such relationship which would explain why the testator should have disinherited them by the will in question.
    “I conclude that Mrs. Milbecrg has not rebutted the presumption of undue influence which the facts raise by convincing testimony.
    “For the reasons stated, probate of the will of November 12th, 1922, should have been denied.”

      Mr. Edward II oil end er, proctor for the caveators.

      Mr. John J. Fallon, proctor for the proponent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Ordinary Fielder.

For affirmance—The Chief-Justice, Trenchard, Min-turn, Kalisch, Black, Katzenbach, Campbell, Heppenhetmer, Gardner, Van Buskirk, Clark—11.

For reversal—None.


text:
    Roy Underwood Smith, petitioner-respondent, v. Francis Barlow Smith, defendant-appellant.
    [Argued December 6th, 1923.
    Decided January 25th, 1924.]
    On appeal.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 96 N. J. Eq. 60.

      Messrs. Ward & McGinnis, for the appellant.

      Mr. Merritt Lane, for the defendant.
   Per Curiam.

Our examination of the record in this case leads us to the conclusion that the decree of the court of chancery should be affirmed. We are not satisfied, however, with the result reached by the learned vice-chancellor, who heard the case on the first charge made in the petition against the defendant, viz., August 27th and 29th, 1918. We 'think the evidence is not sufficient to base a decree upon this charge. Otherwise the decree is affirmed.

For affirmance—The Chief-Justice, Trenchard, Min-turn, Kalisch, Black, Campbell, Heppenheimer, Acicerson, Van Buskirk—9.

For reversal—Parker, Katzenbach, Gardner, Clark —4.


text:
    Ernest F. Millar, appellant, v. Fidelity Trust Company, executor, &c., respondent.
    [Decided January 25th, 1924.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, who filed the following opinion:
    “Complainant claims that he and Frederick W. Egner were interested (a) jointly as endorsers on promissory notes made by the Millar Supply Company, which notes were discounted by them and the proceeds used for their joint benefit; (h) as partners in a loan account with the Fidelity Trust Company on complainant’s promissory notes and in the stocks pledged as collateral on such loan; (c) as joint adventurers in certain stock transactions, unsettled at Egner’s death. He seeks by this suit to establish his three claims and to have an account taken of their joint dealings, to the end that it may be determined what he and the defendant, who is executor of Egner’s will, owe each other. During the period covered by the alleged dealings, complainant was a stock broker and Egner was a vice-president of Fidelity Trust Company. They were close friends. There was no written agreement between them covering the matters in controversy and because of the provisions of section 4 of the Evidence act (Comp. 8tat. p. 2218), complainant was barred from testifying as to his transactions with and as to statments made- to him by Egner. No witness was called on behalf of defendant and the proof of complainant’s claim must be found in the evidence of witnesses produced and exhibits offered by him.
    “The proofs show and the parties admit that the Millar Supply Company was a dummy corporation, controlled by complainant and Egner and used by them for the purpose of raising money on promissory notes made by the corporation, endorsed by complainant and Egner and discounted by them at various banks, and that the proceeds of the discount were used by them jointly for some purpose of their own. The evidence shows that on September 27th, 1919, such notes outstanding amounted to $11,250 and that complainant has since paid $400 on some of them. As to what disposition has been made of the balance of the notes, the evidence is silent. Complainant and Egner were jointiy liable to pay these notes, as between themselves, and an account should be taken before a special master, to ascertain what sums have been paid by them, or by the defendant, in discharge of the notes and how much is due from or to complainant.
    “The proofs also show, and the parties admit, that the loan or loans made by Fidelity Trust Company on a promissory note or notes secured by stock collateral, although the notes were made by and the collateral stood in the name of complainant alone, were 'joint transactions in which complainant and Egner were engaged and that the obligation to pay the loan and the ownership of the collateral were, as between complainant and Egner, joint. The account to be taken by the master should include this item also and a balance should be struck for the purpose of ascertaining the amount due as between complainant and defendant. Complainant urges that in stating the account on this loan, the value of the securities held as collateral, should be taken as of the highest price at which they have sold since Egner’s death, apparently for the purpose of deducting the amount due on the loan from such value and crediting complainant, as against defendant, with one-half of the difference, it being complainant's argument that defendant, up to the time of final hearing, disclaimed any interest in the loan account or in the securities pledged therewith, but now admits it; that such disclaimer prevented complainant from selling the securities at the highest price which might have been obtained therefor and from paying off the loan and thus the loss or profit on the account, as the case may be, is materially changed. It appears to me that when Egner died the joint transaction was at an end and it remained only to sell the securities pledged with the Fidelity Trust Company, pay the loan out of the proceeds and state an account. In the joint transaction the responsibility and duty to act were as much complainant’s as defendant’s and since the securities stood in the name of complainant it was his duty to sell them at the best price he could get, and after defendant had rejected his claim and disclaimed interest in the securities complainant was at liberty to sell them and close the account. The most that could have been required of complainant on a sale would have been good faith and a proper degree of prudence. I think that complainant should now direct the Fidelity Trust Company to sell the securities or such of them as remain pledged with it and apply the proceeds in payment of the loan, holding the excess, if any, until an account is taken by the master, who shall ascertain whether there is profit or loss on the account, the result to be balanced against the result of the accounting on the Millar Supply Company notes.
    “The first joint adventure in stock transactions claimed by complainant relates to one hundred and eighteen shares of Houston Oil Company stock. It appears that complainant opened an account with the brokerage firm of Forrest, Davis & MacDonald, March 19th, 1915, in the name of ‘E. F. Millar Special,’ which account shows a large number of stock purchases and sales down to October 4th, 1917, when the account had to its credit ninety shares of Cuban-American Sugar and to its debit the sum of $13,345.50. It is not shown that Egner had any interest in this account. On October 4th, 1917, the brokerage firm of Clark. Dodge & Company gave its check for $13,345.50 to Forrest, Davis & MacDonald and received the ninety shares of Cuban-American Sugar. At that time Egner had an account with Clark, Dodge & Company, which account was charged with the purchase of the sugar stock at $13,345.50, Thus, on its face, the transaction appears to have been the purchase by Egner of ninety shares of Cuban-American Sugar for $13,345.50, or about 148% per share. Egner held this stock until April 8th, 1918, when he sold at 143, realizing $12,855.15 net, being a loss of $490.35 on his purchase. On the same day he bought one hundred shares of Houston Oil at 44, through Clark, Dodge & Company, and $4,412.50 was charged against and the stock was credited to his account. About May 28th, 1919, the Houston Oil Company gave its stockholders the privilege of subscribing to a new stock issue at par, to the extent of seventeen and three-tenths per cent, of their' holdings. At this time Egner held nine hundred or more shares of „this stock in his Clark, Dodge & Company account, which gave him the right to subscribe for one hundred and fifty-five shares of the new issue. He in fact subscribed for and bought two hundred and forty-five shares at par and had them charged to his account. It is complainant’s theory that with the proceeds of sale, April 8th, 1918, of ninety shares of Cuban-American Sugar, Egner bought one hundred shares of Huston Oil and that under his right to subscribe, he, on May 28th, 1919, acquired eighteen additional shares at par, thus making the one hundred and eighteen shares cost $6,-212.50. Complainant claims that these same one hundred and eighteen shares were held in Clark, Dodge & Company account at Egner’s death and were thereafter delivered to defendant.
    “The proof to sustain complainant’s claim to an interest in the shares in question is, first, the transfer October 4th, 1917,' of ninety shares of American Sugar from his account with Forrest, Davis & MacDonald to Egner’s personal account with Clark, Dodge & Company, the sale of that stock April 8th, 1918, by Egner and the purchase by Egner, on the same day, of one hundred shares of Houston Oil and the addition of eighteen shares thereto in the manner above stated. Complainant argues that Houston Oil was purchased with the proceeds of his Cuban-American SugaT, and therefore he became entitled to an interest in the Houston Oil. But there is no evidence to show that while the sugar stock was in the Forrest, Davis & MacDonald account, Egner had any interest in it, or that complainant repaid any part of the sum advanced by Egner to take the stock over. Of course, the transfer was made with, complainant’s consent. It may have been a purchase by Egner from complainant, and in addition to the amount paid by Egner to Forrest, Davis & MacDonald, there may have been other considerations moving from Egner to complainant. It would seem that on the date of the transfer complainant had no1 equity in the sugar stock. It was not an active stock and its market quotation then was from 135 to 160 and a sale is reported the following day at 140. It was held by complainant’s brokers as collateral security for a debt of $13,34:5.50, and the brokers may have called for more margin which complainant was unable to furnish, and Egner may have' taken the stock off complainant’s hands, rather than let the brokers sell complainant out at a loss. Egner paid 148% for the stock and the proceeds enabled complainant to balance his account with his broker. When Egner sold it April 8th, 1918, he sold at a loss. That sale gave Egner back what the stock had cost him less his loss on the transaction, and if he put part of what he realized on the sale into the purchase of one hundred shares of Houston Oil, I fail to see how complainant could have acquired any interest in the purchase. I digress somewhat to say that Egneffs account with Clark, Dodge & Company was opened long prior to the date when he took over complainant’s sugar stock, and it was continued to his death. Complainant claims no interest in any of the items shown on this account, other than Cuban-American Sugar and Houston Oil. This account shows many transactions, both of purchase and sale. Before and after Egner acquired the sugar stock he dealt extensively in Houston Oil, both by purchase and sale, and he carried a good credit cash balance. It seems impossible to say that the Houston Oil in question, having been charged against the general balance of his account, was not bought with the proceeds of some of his previous stock sales, or that the sales made by him of Houston Oil after April 8th, 1918, did not include the one hundred shares bought by him on that day. He bought as high as one thousand shares of this stock through this account in different lots and at his death had six hundred shares remaining in the account. It is to be noted that the Cuban-American Sugar sold for $12,855.15, of which complainant claims that $6,212.50 was used to acquire one hundred and eighteen shares of Houston Oil, which leaves a balance of $6,642.65, as to which complainant makes no claim in this suit. If in some way he still owned an interest in the sugar stock after it has been transferred to Egner’s account, and the ownership of such interest justifies a claim to one-half of the Houston Oil, it is strange that complainant makes no claim to the balance of the proceeds of the sale of the sugar stock.
    “The further evidence on which complainant relies to prove this claim is the testimony of Mrs. Smith, who had been in his employ and who testified on direct examination that on one occasion she told Egner she was sorry for complainant because his business was poor, and that Egner replied : ‘What has he got to worry about ? Houston Oil is the best thing on the line,’ and that she then said to Egner: ‘You have some of that, have you. you and Mr. Millar?’ and . that Egner replied: ‘Yes; we have one hundred shares with Clark, Dodge & Company.’ She fixed this conversation as having occurred in 1913 or 1914. On cross-examination her version of the conversation was that she told Egner complainant was worried and that Egner then spoke of Houston Oil as being good and she said: ‘Well, have you got any of that ?’ and he replied: ‘Yes, Mr. Millar and I have one hundred shares with Clark, Dodge & Company.’ She fixed another conversation with Egner on the subject of another lot of Houston Oil as having occurred in 1919. After the hearing at which Mrs. Smith testified was concluded, counsel for complainant realized that she had fixed her conversation with Egner as having occurred at least four years before he had bought the one hundred shares of Houston Oil, and she was recalled at a subsequent hearing to testify that she had been mistaken in the date and that the conversation, in fact, occurred in 1918 or 1919. This lapse in memory naturally casts doubt upon the accuracy of Mrs. Smith’s recollection of what actually was said. As she appeared very familiar with the details oí complainant’s other stock transactions, not only individually but with Egner, and she said she knew, in a general way, that complainant and Egner were interested in Houston Oil, it seems strange that she should not have known of his interest with Egner in these particular shares, and that she should have asked Egner the direct and personal question, whether he and complainant had Houston Oil. It is also- strange that at the date Mrs. Smith finally fixed this conversation to have occurred, she should have stated to Egner that complainant was worried, because complainant claims that he was then interested in Houston Oil with Egner, not only as to the one hundred and eighteen shares in question, but also in One thousand shares of the same stock carried with other brokers (to which reference is hereafter made), and the market was steadily rising until the stock touched 176 late in 1919, from which it would appear that complainant could not have been worried as to Houston Oil. It is also strange that Egner, in speaking to her of Houston Oil, referred specifically to one hundred shares with Clark, Dodge & Company, and did not mention the larger number of shares he was carrying with the same concern, or the aforesaid block of one thousand shares. Complainant also relies on the evidence given by Mr. Mangin, who testified that some time in 1919 Egner told him that Houston Oil was a good prospect, and that he (Egner) and the complainant were interested in it; that Egner did not say in how many shares they were interested, but he did say that they had bought at some figure between 43 and 48 and that the stock would make them a lot of money; that Egner did not say he and Egner had bought jointly and did not name the broker through whom they had purchased. Two other witnesses, Messrs. Letterhouse and Carmichael, testified as to conversations between complainant and Egner, when all 'four were present, in which Egner said to complainant: ‘Cheer up, we will all get rich on Houston,’ but they never heard Egner say .that he and complainant owned any of the stock jointly. At the time of the conversations related by Messrs. Mangin, Letterhouse and. Carmichael, complainant was speculating in stocks and ran several brokerage accounts, and when Egner said that he and complainant were interested in Houston Oil, and that Ve’ would all m'alce money out of it, it might have been a fact known to Egner that complainant himself had purchased some of the stock, as had Mangin, Letterhouse and Carmichael, and that when he used the word Ve’ he was referring to separate holdings of himself, complainant, Mangin, Letterhouse and Carmichael. The result of this overlong review of the facts is that I cannot accept the evidence on the part of the complainant as sufficiently reliable or definite to fix a joint ownership of the one hundred and eighteen shares in question in complainant and Egner.
    “Complainant’s further claim is that he and Egner were interested as joint adventurers in two accounts carried with the brokerage firm of J. Robinson Duff & Company, the one known as £E. F. Millar Special’ and the other known as £E. F. Millar No. 1.’ He states the extent of his interest in the first account to be one-third, because another (Heller) was interested with complainant and him, and he states the extent of his interest in the other account to be one-half, because he and Egner were the only persons interested therein. He claims a proportion of the- profits which would have been realized bad the stocks in these accounts been sold, immediately prior to or after Egner’s death, or for contribution from Egner’s estate to the amounts lost by the accounts when they were closed out by the brokers.
    “The proofs show that an account was opened with Henry Brothers, brokers, June 10th, 1918, in the name of £E. F. Millar Special,’ for which account one thousand one hundred and ten shares of Houston Oil and three hundred shares of International Paper were bought and one hundred shares of Houston Oil were sold, and that the account was closed May 15th, 1919, by the delivery of one thousand shares of Houston Oil and three hundred shares of International Paper to the brokerage firm of J. Robinson Duff & Company (afterward Duff, Freiday & Company). I conclude that the proofs show that Egner had some interest, undefined as to extent, with complainant in the securities in this account. On May 15th, 1919, an account in the name of E. E. Millar Special’ was opened with J. Robinson Duff & Company, to which the Houston Oil and International Paper were credited. On this same day another account was opened with J. Robinson Duff & Company in the name oí E. E. Millar No. 1,’ to which were credited certain securities received by that firm from an undisclosed source. No explanation is offered as to why, if Egner and complainant were joint adventurers in stocks, they should have opened two- accounts on the same day with the same broker, in which to- carry their joint dealings. There is no evidence that prior to- the opening of the E. F. Millar No. 1’ account, complainant and Egner were interested in any account bearing that title with any other broker, or that they were interested together in the stocks with which the account in question was o-pened, and I do not find any evidence that during the time such account ran, which was from May 15th, 1919, to February 5th, 1920, and dealt in the purchase and sale of many securities, Egner had any interest in it, and I therefore deny complainant’s prayer for an accounting in connection with the E. F. Millar No-. 1’ account.
    “But I do not find that when the E. F. Millar Special’ account was opened with J. Robinson Duff & Company, Egner had an interest in the two stocks with which the account was opened. I cannot find, however, any satisfactory evidence that such interest continued to- the date of his death, or that he had any interest in any of the various other securities bought and sold for such account. It appears that on May 23d, 1919, before any securities were bought or sold for the account, J. Robinson Duff & Company gave their check for $20,000 against the account, to the order of complainant, who endorsed it payable to' the order of Egner, and that it was endorsed bjr Egner to and was cashed by Clark, Dodge & Company, and since there is no explanation of this transaction, the check may have been given in satisfaction of EgnePs interest in the account. The account shows that the three hundred shares of International Paper were sold June 4th, 1919, and that one thousand shares of Houston Oil remained in it to February 6th, 1920, when they were closed out by the broker. To establish Egner’s continued interest in the Houston Oil stock and his interest in other securities bought and sold for the account, complainant relies upon the testimony of his secretary, Mrs. Smith, who says that Egner gave many orders, through complainant’s office, for the purchase and sale of stocks for an ‘E. F. Millar Special’ account. But there were accounts with that title with brokerage concerns other than J. Robinson Duff & Co., and she did not state whether any such orders were given after May 23 d, 1919, and she did not designate any definite number of shares of any particular stock ordered purchased or sold by Egner for the ‘E. F. Millar Special’ account with J. Robinson Duff & Company. Complainant also relies upon the testimony of several witnesses to show that in and after May, 1919, Egner admitted an interest with complainant in the one thousand shares of Houston Oil, which admission would tend to show not only their joint ownership in that stock, but also, by inference, in the whole account, but in my opinion the witnesses failed to- establish the fact. They were two vice-presidents of the Fidelity Trust Company, being business associates of Egner; two secretaries of Egner; three friends of Egner and complainant, with whom they frequently played golf; Egner’s brother and complainant’s secretary. These witnesses heard Egner speak of Houston Oil during the period complainant claims that he and Egner were jointly interested in it. Some of them heard Egner and complainant discuss the purchase and sale of many stocks, including Houston Oil, but none of them testified that Egner spoke of owning one thousand shares of Houston Oil, or that he stated that he had an interest in that number of shares with complainant, or in ah account with J. Robinson Duff & Co. During the period in question Egner carried accounts with several brokers, and he was the owner of a large number of shares of Houston Oil, in which complainant had no interest, and complainant may have been carrying some of the same stock in another account. In discussing this stock with complainant, or with others who also owned the same stock, in complainant’s presence Egner spoke of the stock 'we’ own, but it does not follow necessarily that he intended to refer to a joint ownership with complainant. Complainant points to the $20,000 check I have mentioned, given by J. Robinson Duff & Co., as evidence of Egner’s ownership in the account in question, but there is no evidence to show the purpose for which complainant endorsed the check over to Egner, and it may have been given, as I have said, in satisfaction of Egner’s interest in the account, or in pursuance of some other business transaction, or for one of a number of reasons which I might assume to be true, with as much justification as I have for accepting complainant’s assumption. Assuming that there is evidence to show that complainant and Egner continued to be interested in the one thousand shares of Houston Oil down to Egner’s death and thereafter and until the stock was sold by the brokers, that is not a fair reason for assuming that they were similarly interested in all the stocks carried in the ‘E. F. Millar Special’ account, and I Avould point out that the Henry Brothers’ account shows that one thousand one hundred and ten shares of this stock were bought for $86,450 and one hundred shares were sold for $8,158.50, so that the remaining one thousand shares stood them in $78,291.50 when transferred to J. Robinson Duff & Company, and the account of the latter firm shows that they were sold February 6th, 1920, for $87,910, or a profit of $9,618.50 (less commissions and carrying charges), all of which went to the credit of complainant, and in that situation it would seem that it is complainant who should account and not Egner’s estate.
    "If complainant had established that Egner Avas interested in this 'E. F. Millar Special’ account at the date of his death, it would be necessary for complainant to fix, not only the proportion of his own interest, but also the proportion of Egner’s interest, because Egner’s estate can be held to account only for profits or losses to the extent of Egner’s interest- Complainant filed his proof of claim with defendant on or about October 25th, 1920, for 'one-third profit on E. F. Millar Special 'account with the brokerage house of J. Eobinson Duff & Company, $4,525.55/ and with the claim he sent a letter to defendant in which he said he claimed an interest in the account, ‘which I think can fairly be put at one-third, as through my ability to get someone to carry it, I enabled Messrs. Egner and Heller to retain it.’ Thus his claim was not made as a partner entitled to a definite percentage of profits, but as compensation for services rendered and he thought that one-third of the profits would be a fair charge to make. His letter is also a statement that a man named Heller was interested in the account with Egner. In the same letter he said, in further explanation of his claim: ‘Upon going over the account I find the error was in overlooking the fact that Mr. Egner drew $20,000 from the account May 23d, 1919, so that instead of a loss of $6,000 there was really a profit of $14,000/ and accordingly he made his claim for approximately one-third of $14,000 profits. November 4th, 1920, he wrote defendant again, stating that to his surprise he had found that in 1918 $20,000 had been put into the account and that the withdrawal of that sum in 1919 ‘was simply getting their money back/ and therefore there were no profits to divide and he notified defendant that he withdrew his claim against the E. F. Millar Special account- The meaning of that letter appears to be that complainant knew that Heller was interested in the account with Egner and that Heller and Egner had got iheir money back, and also that complainant had discovered that his first impression that the account had lost $6,000 was correct; but he said nothing about sharing the loss or how it should be paid and he withdrew his claim for services. In paragraph 3 of his bill of complaint, filed December 1st, 1920, he says, speaking of this account, that it was maintained at a loss and that Egner was liable, as a partner, for one-half of the net losses sustained, and here he appears to disregard Heller’s interest and to abandon his claim of one-third profits as compensation for services. On final hearing the complainant was asked if he claimed an equal interest with Egner in the ‘E. F. Millar Special’ account and he replied that he claimed a half interest in Egner’s interest and he stated that the other half interest belonged to somebody else, and he summed it up by saying: H have been claiming a half interest in whatever interest Mr. Egner had.’ Thus it will be seen that complainant admits that someone else (presumably Heller) had an interest in the account, and while he fixes his own interest, somewhat indefinitely, at one-third or one-quarter of the whole, he has failed to show the proportion of Egner’s alleged interest, and therefore it would be impossible to determine, if there were grounds for granting his prayer for an accounting, in what proportion Egner’s estate should share in profits or losses. I deny complainant’s prayer for an accounting as to the ‘E. E. Millar Special’ account with J. Robinson Duff & Company-”

      Messrs. Demurest & Bugge, for the appellant.

      Mr. Francis Lafferty, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance ■— The Chiee-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Heppenheimer, Gardner, Ackerson, Van Buskirk, Clark—13.

For reversal—None.


text:
    Frank Fromm, appellant, v. Catherine Huhn, respondent.
    [Decided January 25th, 1924.]
    On appeal from a decree of the court of chancery advised by 'Vice-Chancellor Fielder, who filed the following opinion:
    “The parties were married December 20th, 1916, prior to which date defendant had contracted another marriage, and her former husband was then alive. She had commenced suit in this court for divorce from her former husband, by petition filed June 27th, 1916, which suit was uncontested, and a decree nisi was granted her January 2d, 1917, and a final decree July 3d, 1917. The parties to the present suit lived together until February 26th, 1922, when petitioner left defendant because of domestic quarrels and they never resumed marital relations. Petitioner claims that he did . not learn until February 27th, 1922, of the fact that at the date of his marriage to defendant she had not been divorced from, her former husband, and he filed his petition in this cause April 18th, 1922. The parties have one child.
    “The question open for determination is whether or not on December 20th, 1916, the date of their marriage, petitioner knew of defendant’s prior marriage and also knew, or should have known, that she had not then obtained a decree of divorce from her former husband; or, not knowing of defendant’s prior marriage and subsequently ascertaining that fact, whether he did not also learn that she had not obtained a final decree of divorce from her former husband until after she had married petitiofier and thereafter continued to live with her, as husband and wife, for two years before he left her for another reason.

      “Petitioner’s testimony is that he had known defendant several years before their marriage and had courted her a year or more; that when he married her he did not know of her prior marriage and believed her to be a single woman; that he did not learn of her prior marriage until some time in 1920, when she told him she had been married and divorced and promised to show him her divorce papers, but never did; that he did not discover that she was not divorced when she married him until February 27th, 1922, when he called on Mr. Gannon, her solicitor in her divorce suit, and ascertained the facts; that he loaned her mother $100 in installments in 1916 and that defendant knew of such loans; that he did not give defendant money to pay the expense of obtaining a divorce from her former husband; that he had a quarrel with the witness Herron over defendant before he (petitioner) married defendant and that Herron then told petitioner he (Herron) was engaged to marry defendant but that Herron did not say defendant was a married woman and was not divorced and that petitioner did not tell Herron he knew it and had money to get her divorce.
    “Defendant testified that she told petitioner in March, 1916, that she was a married woman and could not marry him; that he agreed to pay for a divorce for her and gave her $100 in installments, which she sent to her solicitor, Mr. Gannon, as she received them; that petitioner did not loan the money to her mother, who (she testified) was then earning money and was in receipt of a pension; that when she applied for a license to marry petitioner, she stated in her application that she was a single woman because petitioner did not want anyone to know of her prior marriage, and petitioner’s sister was present when the application for the license was made out; that before her marriage to defendant the witness Herron told petitioner she was a married woman and that afterward the petitioner told her Herron had told him that defendant had been married before, and that he had told Herron he knew all about it; that after the taking of testimony in her divorce suit before the master was con-eluded, Mr. Gannon told her everything was all right, from which she thought she was free to marry again; that upon receiving copies of her decrees nisi and final from Mr. Gannon she at once showed them to petitioner; that she never lived with her former husband after marriage, and endeavored to keep secret the fact of that marriage, and was known to her friends by her maiden name.
    “Mr. Gannon testified that he never saw petitioner prior to February 27th, 1922, when petitioner called on him to inquire about defendant’s divorce, and that he (Gannon) then informed petitioner of the dates of the decrees nisi and final; that defendant paid him $95 for his services in her divorce suit, in installments from May 13.th, 1916, to November 27th, 1916; that after testimony in her suit before the master was concluded he told her ‘That is all,’ and on December 18th, 1916, he wrote her a letter addressed to her in her maiden name, in which he said: ‘I have been advised by the clerk in chancery that a decree nisi, granting you a divorce, has been entered. I will procure a certified copy of this decree in the near future and forward the same to you.’
    “Herron testified that in the winter of 1916, before the parties to the suit were married, he had a quarrel with petitioner, during which he told petitioner that he (Herron) was engaged to marry defendant, and that petitioner replied that he (petitioner) was engaged to her; that witness then' told petitioner that defendant was a married woman and could not marry petitioner; that petitioner replied that he knew it and knew she was not divorced) and that he had money to get her a divorce.
    “A sister of petitioner testified that she was present at the quarrel between Herron and petitioner; that petitioner did not say he knew defendant was a married woman or that he would give defendant money with which to get a divorce; that nothing was said in her presence about a divorce.
    “The defendant’s- mother is an inmate of an insane asylum, and cannot testify with respect to the loans petitioner claims to have made her.

      “The impression I get from the evidence is that prior to the marriage of the parties, petitioner knew of defendant’s former marriage, financed her divorce proceedings, knew of the letter of December 18th, 1916, to her from Mr. Gannon, and when that letter was received, believed' she was free to marry again and married her the next or the following day; that after the marriage he saw copies of her decrees nisi and final, and continued to live with her as husband and wife with knowledge that the decree nisi had not been entered for more than two weeks after their marriage and the decree final six months later.
    “If at the time-of their marriage he did not know of her former marriage, but learned of it in 1920, and also learned that the impediment to the marriage which existed December 20th, 1916, had been removed, and he continued to live with her as'her husband, their relations were lawful and he is not entitled to have his marriage annulled. Robinson v. Robinson, 88 N. J. Eq. 150; affirmed, 84 N. J. Eq. 201. But the case need not be decided upon the impression in favor of the defendant, which the evidence makes on my mind, because the burden is on petitioner to prove that he married defendant without knowledge of the fact that she then had a husband living from whom she had not obtained a divorce. He must show his own innocence of any intentional violation of the law (Tyll v. Keller, 94 N. J. Eq. 4®6), and 1 consider that he has not sustained the burden which the law casts upon him, by a preponderance of the evidence.
    “The petition will be dismissed.”

      Mr. Edward Stover, for the appellant.

      Mr. J. Raymond Tiffany, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons filed in the court below by Vice-Chancellor Fielder.

For affirmance — The Chiee-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Heppenheimer, Gardner, Ackerson, Yan Buskirk, Clark—13.

For reversal—None.