text:
    George H. Buecker v. Mary Carr et al.
    [Filed August 21st, 1900.]
    1. One who claims title to property by gift mortis causa, must prove the fact of the gift and that it had the characteristics of such a donation.
    2. Mere possession of the subject-matter of the claimed gift by the supposed donee, will not, of itself, establish a gift mortis causa.

    3. Such gifts are not favored in the law, and cannot be proven by violent inference from disputed testimony.

      4. Where an administrator appointed by foreign letters seeks a remedy in this court, an attack on his standing on the ground that his decedent was domiciled elsewhere than in the place where his -letters issued, will not bo entertained. Such objections must be raised in the probate courts by direct attack or application.
    5. One who is neither a creditor, next of kin nor in any other way interested in a decedent’s estate, may not question the efficiency of letters of administration, valid on their face.
    G. The filing of an exemplified copy of foreign letters of administration under the act of 1896 (P. L. of 1896 p. 17S § 1) to enable a suit to be prosecuted, is sufficient if filed before final hearing.
    7. Quwre. Is the statute of 1887 (Gen. Stat. p. llj-29 § 20) repealed by the statute of 1896 above cited?
    On cross-bill and answer thereto, and proofs.
    This canse came on for hearing on the cross-bill filed by Charles J. Costello, administrator, &c., of Hannah McEadden. The original bill in this canse was filed to foreclose a mortgage for $1,000 made by Mary Carr and others to Hannah McEadden, in her lifetime, upon property in Atlantic City. The original bill alleges that on the 27th day of December, 1898, Hannah McEadden, the mortgagee, departed this life intestate, and that prior to her death, and while in her last illness, and apprehension of death was near, to wit, on the 26th day of December, 1898, she, the said Hannah McEadden, gave to the complainant and delivered into his possession the bond and mortgage, &c., with the purpose that the said delivery or possession, See., should operate as an assignment of all her right and interest therein. Mr. Buecker files the original bill, claiming to be the holder and owner of the bond and mortgage, and makes the Carrs, who were the mortgagors, defendants, and also makes defendant one Charles J. Costello, who is alleged to be a nephew and one of the next of kin of the decedent, Hannah McEadden, and prays the ordinary foreclosure decree, that the complainant may be paid the amount of the mortgage and interest, or sale, Sec.

    Pending the suit the defendant Costello, who had been appointed administrator of the estate of the decedent, Hannah McEadden, by the register of wills of the city of Philadelphia, filed his petition in the cause, alleging that Buecker, the complainant in the original suit, had obtained possession of the bond? and mortgage sought to be foreclosed, unlawfully, and without right, and that they belonged to the estate of the said Hannah McFadden, of which the petitioner had been appointed administrator, and asked leave, as administrator of Hannah McFadden, to be admitted to set up this defence. He was admitted on this petition, as defendant, as administrator of the defendant, Hannah McFadden. Upon being so admitted, Costello, as administrator, &c., filed his answer to the original bill of complaint, denying the allegations of the complainant that ike bond and mortgage had been delivered to him donatio causa mortis, as claimed in the original bill, and alleging that the said bond and mortgage remained part of the estate of the said Hannah McFadden at her death, and that they now belonged to him, Charles J. Costello, as administrator of her estate. By way of cross-bill annexed to the answer, Costello, as administrator of Miss McFadden, further restated his averment that the mortgage had not been bj1' Miss McFadden transferred to Beucker donatio causa mortis, but that it remained her property at the time of her death, and constituted a part of her estate, and prayed a decree that the complainant in the original bill (Buecker) might be directed to deliver over to him (Costello), as administrator of Miss McFadden, the bond and mortgage in question as part of her estate. Buecker answered the cross-bill denying its allegations. The cause was referred and was ripe for hearing on both the original bill and the cross-bill, but Buecker, the complainant in the original bill, declined to move his case. Costello, administrator of Miss McFadden, complainant in the cross-bill, then moved a hearing of the cause on the cross-bill and answer thereto, and no sufficient reason appearing why the motion should not be granted, the cause has come to a hearing on the cross-bill, and the answer of Buecker to the same.

      Mr. Ulysses G. Slyron, and Mr. Jonas Miller, for the complainant in the original bill and defendant in the cross-bill.

      Mr. Herbert A. Drake and Mr. Edgar N. Black (of the Philadelphia bar), for the complainant in the cross-bill and for defendant Costello in the original bill.
   Grey, V. C.

The question presented for determination on the issues raised by the cross-bill and the answer thereto,' involves simply the ownership of the bond and mortgage sought to be foreclosed.

Both parties claim to own that bond and mortgage, and also to have derived their ownership from the same source — Miss McFadden, the mortgagee. Neither side denies that she was in her lifetime the owner of the bond- and mortgage in question, and that she'continued to be the owner of it up to the day of her death. There is no claim that she ever executed any written assignment of it, nor that she was in any way dispossessed of the ownership and actual custody, unless title and ownership passed to the complainant, Mr, Buecker, in the mode described in his answer to the cross-bill; that is, that Miss McFadden, on the day of her death, either by absolute gift, or by way of donatio mortis causa, passed the bond and mortgage to Mr. Buecker. If she did not so transfer the bond and mortgage to him, then she must have died possessed of them, and their present ownership must be in her administrator.

This issue is thus sharply defined in the pleadings themselves, for the complainant in the cross-bill asserts that she died possessed of the bond and mortgage, and that the defendant, Mr. Buecker, carried them off immediately after her death. The defendant denies this and avers

"that the said bond and mortgage was acquired by him and came to his possession by gift and delivery from the said Hannah McFadden in her lifetime, at the time and in the manner stated in the bill of complaint.”

Upon looking at the bill (the original bill), it is there alleged by Mr. Buecker that

“prior to her death and while in her last illness and apprehensive that death was near, to wit, on or about the 26th_day of December, 1898, the said Hannah McFadden gave to your orator and delivered into his possession the said bond or obligation and indenture of mortgage, with the intent and purpose that the said delivery of the possession of the said bond„and mortgage to your orator shall operate as an assignment and transfer to him of the same and of all her right, title and interest therein.”

It is to be noted that there is no claim made that the bond, and mortgage were purchased by Mr. Buecker. He alleges, and. has offered proof, and his counsel has argued his cause, wholly upon the theory that his recipiency of the bond and mortgage' was without valuable consideration, donatio mortis causa.

There is a difference between an absolute gift and one made mortis causa. In the former case the donee becomes, in the lifetime of the donor, the absolute owner of the thing given, but donatio mortis causa leaves the whole title in the donor, unless-the event occurs (the death of the donor) which is to divest him. Edwards v. Jones, 1 Myl. & C. 233. In this case no nice distinction need be made as to the nature of the alleged gift, as the case is controlled by the absence of any proof of any sort of gift.

The bond and mortgage in question were admittedly on the day of Miss McFadden’s death in her possession. The whole claim of Mr. Buecker, that the bond and mortgage were given to him by Miss McEadden, is based upon two points in the evidence which, he insists, exhibit such circumstances that a gift mortis causa must be inferred. The first incident is that Mr. Buecker, by his own testimony, proves that during the morning of the day on which she died, he came to Miss McFadden’s sick chamber in the absence of her attendant. This, it is contended,. shows the opportunity for the gift. The second incident is that a witness (a friend of Mr. Buecker) proves that at about six o’clock in the evening of the same day, Buecker showed him the bond and mortgage which he then had in his possession

This, it is contended, shows that Miss McEadden, at the alleged private interview with Mr. Buecker in the morning, must have given him the bond and mortgage which he had in the early evening. Miss McFadden died late that night.

Taking all the above recited testimony to be uncontradicted, it is to be observed it makes no proof whatever that Miss McEadden in any way transferred the bond and mortgage to Mr. Buecker,. by way of gift, mortis causa, or otherwise. The most that can’ be said of it is that it exhibits a situation in which she might have made a gift of them to Mr. Buecker, but it falls far short of proving that she did make such a gift. The actual proof, accepting all of it as true, amounts only to a showing that Buecker ■ had the securities in his possession during her lifetime. When he got them, by what act or speech of Miss McEadden, whether by gift or how otherwise, and under what circumstances or limitations, is wholly undisclosed by any evidence offered by him. Mr. Buecker, therefore, contends that an irresistible inference must be drawn from the mere fact of his possession of these securities, which shall be held to establish a gift to him by Miss McEadden at the alleged private interview.

It appears to be entirely settled that mere possession of the subject-matter of the gift by the claiming donee, cannot of itself be held to establish a gift mortis causa. Especially if the claimant had opportunity to obtain wrongful possession from the alleged donor. There must be proof that the subject-matter of the gift was so delivered to the claimant by the donor himself, by action, or speech, or both, that he abandoned all dominion over it, subject only to the happening of any of the incidents which make such gifts revocable. Delmotte v. Taylor, 1 Redf. Surr. 417. Should mere possession be held to establish such gift and to cast upon the representatives of the estate the burden of disproof, it would be adding a new terror to death, an actual invitation to the seizure of the effects of sick persons, in articulo mortis, when they are least able to care for them.

The policy of the law tends directly in the opposite direction. Gifts mortis causa are not favored in the law, for the reason that this mode of disposition permits property without limit of value to be transferred by mere delivery, and the proof thereof to be made when death has closed the lips of the claimed donor. Keepers v. Fidelity Title Co., 27 Vr. 308 (Court of Errors).

The same principle prevents the drawing of so violent an inference upon evidence of the light character here submitted. Moreover, an inference of such a gift could not be supported upon that evidence, because the possession of Mr. Buecker, under the circumstances detailed, does not either necessarily or even reasonably lead to such a conclusion. If possession was in fact received by Mr. Buecker from Miss McEadden, and the proof stopped at that point, it would still fail to show what is alleged, that under an apprehension of death, and with an intent to' give the property in the bond and mortgage to him, she delivered, &c. She might have delivered them to him for safe keeping, for transmission to some other person, indeed, for many reasons other than as a gift to him of the property in them.

But the evidence upon which Mr. Bueeker bases his contention cannot be accepted as a truthful statement of the manner in which he obtained possession, without assignment of the securities in question. The testimony, so far as it was given by Mr. Bueeker that he had a private interview with Miss McEadden at which the gift might have been made, is flatly contradicted by her attendant, a disinterested witness. That given by his friend, to the effect that in the early evening of the night on which Miss McEadden died Mr. Bueeker had the bond and mortgage in his possession, was so uncertain in its identification of the papers, which Bueeker showed him as the bond and mortgage here in dispute, that it carries no weight.

There is an entire failure to prove that Miss McEadden, in her lifetime, in any way disposed of the bond and mortgage in question. This determination leaves the title to them in Miss McEadden, at the time of her death, so that it vested in her administrator upon his appointment. Mr. Costello, the complainant in the cross-bill, is that administrator, and as such is entitled to a decree for the delivery of this part of his decedent’s estate to him.

This view of the case relieves from any necessity to consider the question of the liability of such a voluntary gift as is claimed to the debts of the decedent, and the consequent right of Miss McEadden’s administrator to have the custody and use of these assets, if necessary, for that purpose. Under the proofs the administrator of Miss McEadden is entitled to these securities, not for a limited use to pay her debts, if need be, but without limit, for all the purposes of administration, of her estate.

At the hearing it was insisted for Mr. Bueeker that he had a right to dispute in this cause the efficiency of Mr. Costello’s letters of administration upon Miss McEadden’s estate, upon the ground that Miss McEadden was at the time of her death domiciled, not in Philadelphia, where the letters were issued, but in Atlantic City, New Jersey. This contention was overruled. Mr. Bueeker was not shown to be either a creditor or next of kin to Miss McEadden, or to be in any way so interested that he had any stains to contest with her administrator the legality of his letters. ETor would this court in this collateral way entertain such a question. It is one which should be raised in the probate courts, by direct' attack or application. They have jurisdiction over such matters.

Mr. Buecker further contends that Costello, being an administrator by virtue of letters obtained in another state, his cross-bill ought to be dismissed because on coming in as a party he filed the exemplified copy of his letters in the office of the clerk of this court, in this cause, under the provision of the act of 1887 (Gen. Stai. p. 1429 § 20), and not in the office of the register of the prerogative court, as provided in P. L. of 1896 p. 78 § 1.

Mr. Costello did file an exemplified copy of the foreign letters in this court, in this cause, with his original petition to be admitted to defend this suit as administrator. This was a full compliance with the terms prescribed by the statute of 1887 above cited. The act of 1896 does not in terms refer to or repeal the act of 1887, but declares a repealer of all acts and parts of acts inconsistent with the later act. Whether a requirement that a copy of letters be filed in the office of the clerk of the court where he is about to proceed by suit is inconsistent with another requirement that a copy be filed in the office of the register of the prerogative court is a question of some doubt. In this case copies have in fact been filed in both offices before the final hearing of the cause — in the office of the clerk of this court, at the original admission of the administrator as a party, and in the prerogative court office about two months before the hearing. Mr. Bueeker’s objection is not that the letters are not now on file in the proper office, but that they were not so on file when the cross-bill was filed.

If it be assumed that the statute of 1887 was repealed by the act of 1896, Mr. Costello claims that he has also complied with the requirements of the later statute. The act of 1896 contemplates and authorizes both the “prosecution” of an action, provided copy of foreign letters be filed, and the “bringing” of an action after such filing. A suit may be prosecuted after it has been begun, but the. bringing of a suit is its initiation. The one phrase ajoplies to the further conduct of a suit and the other to the beginning of a new suit. The legislature, it is to be presumed, intended each phrase to hare its distinct meaning, else there was no occasion to use both. Applying this rule of construction to the act of 1896, it authorizes the prosecution of a pending suit after' filing copy of foreign letters in the prerogative office of this state. This the administrator has done before the hearing in the cause, and the requirements of the statute having been complied with, he may now prosecute his suit. The object of the statute of 1896 is to assure defendants that a party assuming to be an administrator under a foreign appointment was in fact what he claimed to be.

This object, so far as the defendant is concerned, is fully attained by the filing of the exemplified copy at any stage of a pending suit, at which he may assert his rights to the assurance. The statute of 1896 prescribes no penalty, and the exemplified copy of the letters. being now on file in the prerogative office, the cross-bill should not, even if the act of 1887 was repealed by that of 1896, be dismissed because the copy of foreign letters was not filed in that office before the filing of the cross-bill.

I will advise a decree for the administrator of Miss McEadden, in accordance with the views above expressed, with costs.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    Samuel Ireland v. Hannah F. Kelly et al.
    [Filed August 25th, 1900.]
    1. Under rule 213 a defendant must move to strike out a bill while the pleadings are in that condition in which he could demur to it.
    2. .A .bill alleged that complainant owed defendant a certain sum; that complainant had been notified that by an agreement between defendant and a third person the latter was entitled to one-half that sum; that such person had warned complainant not to pay that half to anyone but himself, and that complainant did not know to whom it belonged, and asked that defendant and such third person might interplead, and be enjoined from further prosecuting a suit at law until decree. Defendant denies that there was any such agreement, and insists that she alone is entitled to the fund. — Held, that a motion to dissolve the preliminar-y injunction restraining the suit at law, on the ground that the answer denies every fact on which complainant’s equity depends, will not be granted, since the answer simply denies the existence of the agreement, and is not responsive to complainant’s bill.
    3. Under the Chancery act providing that complainant may pray that defendant answer without oath, &c., the rule that a preliminary injunction will be dissolved when a responsive answer, under oath, by a defendant having knowledge of the transactions, denies the facts on which the equity of the bill depends, is unaffected by the fact that complainant, in his bill, waives an answer under oath.
    4. Where a person claims a fund because of an admitted contract with the holder of the fund, and another person claims a portion of such fund because of an agreement with the admitted contractor, the holder of the fund may file a bill for interpleader, and it is not necessary, to entitle the holder to file such bill, that the claimants each assert a right arising out of some alleged contract with such holder.
    On bill for interpleader, &c. Motion to strike out bill, &c.

      Mr. Clarence L. Cole, for the complainant.

      Mr. Enoch A. Higbee, for the defendants.
   Grey, V. C.

The defendant Kelly has fully answered the bill. She now moves to strike it out under rule 213, “for the reason that the bill, if true, does not show the proper case for interpleader, and for the further cause that the answers filed by the defendant in this suit show that it is not a proper case for interpleader.”

The motion of the defendant is equivalent to a demurrer to the bill, which she has chosen to answer fully. The rule invoked provides that “any objections to a pleading or any part thereof may be made and adjudicated upon without the filing of a demurrer or exceptions,” &c.

This rule has been interpreted to mean that the complainant's motion to strike out an answer takes the place of exceptions to an answer. The motion of the defendant to strike out a bill takes the place of a demurrer to a bill. The rule is intended, in case parties avail themselves of it’at the proper timé, to avoid the more dilatory procedure theretofore in use. But it is not intended to disarrange the whole order of pleadings, and to enable a defendant after he has fully answered a bill, to move to strike it from the record. He can move to strike out a bill instead of demurring to it, and must have to strike out while the pleadings are in that condition in which he can demur to the bill. The defendant in this case having fully answered, cannot now demur, and having no standing to demur, she cannot move to strike out. The rule substitutes a rapid remedy in the place of a slow one, but does not enable parties who have recognized the efficacy of a pleading to move to strike it out. Leslie v. Leslie, 5 Dick. Ch. Rep. 155; Doane v. Essex Building Association, 45 Atl. Rep. 537; Brill v. Riddle Co. (May, 1900).

In this situation of the pleadings, the merits of the objections to the bill of complaint cannot be considered. The motion to strike the bill from the record should be refused.

The defendant Mrs. Kelly having answered the bill under oath, also moves to dissolve the injunction, claiming that she has denied every fact upon which the equity of the complainant depends.

The bill of complaint alleges that the complainant owed a certain sum for commissions on the sale of land to the defendant Mrs. Kelly, and that the complainant has been notified that by an agreement between Mrs. Kelly and the defendant Repetto, the latter is entitled to one-half of that sum, and that he has warned the complainant not to pay that half to anyone but himself.

The complainant has paid to Mrs. Kelly the one-half but retains the other, the ownership of which is in dispute. Mrs. Kelly is suing him in the law court to recover this residue. Repetto still claims it, and the complainant insists that he is unable to know to whom it belongs, or safely to pay it to either, and asks an answer without oath, and that the defendants Kelly and Repetto may interplead, &c., and be enjoined until decree.

On the bill and its prayer a preliminary injunction has been granted restraining Mrs. Kelly and Mr. Eepetto from suing for the fund in dispute.

Mrs. Kelly has answered the bill, under oath, denying that there was any such agreement between her and Mr. Eepetto, and insisting that she alone is entitled to the fund. It is on this answer that she now moves to dissolve the injunction which restrains her suit at law.

The rule that a preliminary injunction will be dissolved when a responsive answer under oath, by a defendant having knowledge of the transactions, denies the facts upon which the equity of the bill depends, is so well settled that authority need not be cited to sustain it. The rule is unaffected by the fact that the complainant in his bill waives an answer under oath. Gen. Stat. p. 876 § 23 (Chancery act).

The counsel for the defendant Mrs. Kelly insists that her denial that there was any agreement between herself and Mr. Eepetto, shows that the fund is due to her alone, and that consequently there is no fact undenied on which the equity of the complainant can stand. But the equity of the bill does not consist in the fact that there is an acknowledged and established agreement on the part of Mrs. Kelly that Mr. Eepetto should have one-half of the fund. The complainant’s equity is that Eepetto claims to have such an agreement; that Mrs. Kelly disputes it, and that the complainant, not knowing whether the claim is just or not, fears to pay either party. Mrs. Kelly does not deny that Mr. Eepetto claims the'fund; what she denies is the justice of his claim. It is the danger to which the complainant is subjected if he decides to pay either which constitutes his right to the protection of this court. Nothing in Mrs. Kelly’s ansAver shows that the complainant is relieved of this danger.

On the contrary, the more strenuously the disputing defendants assail each other’s claims, the more apparent it is that the complainant ought not to be compelled to decide between them, and stand the chances of a law suit because of his decision either Avay.

The defendant Mrs. Kelly insists that the complainant admits an obligation to pay the fund to her, but sets up no contract on his part to pay Mr. Eepetto. She contends that an interpleader bill cannot be sustained unless the disputing defendants each assert a right arising out of some alleged contract with the complainant.

The essential incident of the equity which justifies an inter-pleader is that the complainant, so far as his own acts are concerned, is under but a single liability to pay or deliver the fund or thing in dispute, and yet he is called upon to pay or deliver to two or more contesting claimants. The complainant in such eases having no interest in the fund or thing in dispute, it is inequitable that he should be compelled to take the risk of determining which of the conflicting claims is superior. Packard v. Stevens, 46 Atl. Rep. 250.

This condition of disputing claims upon the same fund may arise from so many causes that it is difficult to define any limitation which must deprive the holder of the fund of his right to be protected. The fact that one party claims because of an admitted contract with the holder of the fund, and the other by some claimed arrangement with the admitted contractor, will not exclude the holder of 'the fund from his right to be protected. All claims arising under equitable assignments are within this class. Those arising under building contracts are quite familiar. In these cases the owner (the holder of the fund), only contracts to pay the builder who claims payment. But perhaps half a dozen other persons assert claims on the same fund upon what they contend are equitable assignments from the builder, or other rights against him, in the creation of which the holder of the fund has no part. It is common practice in such cases for the owner to pay the money into court and file a bill for inter-pleader to compel those who make these conflicting claims on the fund to settle their disputes between themselves. Those cases, many of them, do not set up any contractual relation between the disputants and the holder of the fund, except as may have arisen by operation of law because of some act of the builder or of the claimants themselves.

The allegation of the complainant in this case is that Mr. Repetto claims that by an agreement between him and Mrs.' Kelly, he is entitled to have one-half of the fund, and that he has notified complainant not to pay this one-half to anyone but himself.

On this claim of Mr. Eepetto it may appear that he holds an .assignment of the fund from Mrs. Kelly. The complainant does not know until the proofs come in what the nature of the agreement .between the two claimants is.

Until he does, he cannot safely pay either. His equity lies in his right to be protected from two suits by different claimants, •on a fund in which he admits he has no interest.

The whole of this equity is dependent upon the maintenance •of the present situation until decree, for if he must respond to suits at law by the different claimants, he will before final decree have suffered all the injury which his unfortunate position may inflict upon him.

The preliminary injunction should not be dissolved until final •decree.


text:
    Christopher Stimis, administrator cum testamento annexo, v. John B. Stimis et al.
    [Filed August 25th, 1900.]
    1. A mortgage will be decreed to be foreclosed against the devisee of the mortgagor, although there has been in fact no payment of either principal or interest for over twenty years, when it was shown that the mortgagor and owner of the 'equity of redemption was also the sole surviving executor of the will of the deceased mortgagee and the only person who, during the period of defaults in making the payments which came due on the mortgage, could have taken any steps to collect either the bond or mortgage.
    2. When a mortgagor and owner of the equity of redemption, who is also the sole surviving executor of the mortgagee, falsety, and without the knowledge or assent of the legatees who are entitled to the benefit of the mortgage, for his own profit certified the mortgage to have been paid, his certificate will be taken to have been an acknowledgment that up to and at the time it was made, the mortgage had been an existing lien on the mortgaged premises, and the cancellation of the mortgage record will be held to have been fraudulently made, and nugatory, when set up as a defence against the mortgage by his devisees of the equity of redemption.

      On bill to foreclose. Answer and proofs.
    The complainant is the administrator cum testamento annexo of John Stimis, deceased, and the defendants are the children and devisees of his son Henry Stimis, also deceased, who, in 1851, made to the father the mortgage herein sought to be foreclosed.
    The mortgage covered lands in Essex county, and was, in the year of its date, duly recorded in that county.
    John Stimis, the mortgagee, died in 1851, testate. By his will he gave his estate to his widow for life, and after her death, to his three sons and four daughters, and the two sons of a deceased son. His widow, Ann, and his son Henry were appointed executors of his will, which was duly probated and the executors qualified. In February, 1853, an inventory of John Stimis7 estate was filed by the executors, in which appeared the item, “Henry Stimis, bond and mortgage, $500.77 In 1873 the widow died. In 1887, Henry Stimis, as executor, executed and recorded a certificate of the satisfaction of the mortgage. In 1891 he died. The executors never accounted. The bill charges that in fact no part of the principal was ever paid, and no interest since the déath of Ann Stimis. That in 1891, Henry conveyed two portions of the mortgaged property to Susan E. Burling, one of the defendants. The complainant was appointed administrator de bonis non of John Stimis, in May, 1893. Ever since the execution of the mortgage, the mortgagor and his devisees have retained possession of the mortgaged premises. The prayer is that the satisfaction of the mortgage be decreed void, and the equity of redemption in the mortgaged premises foreclosed.
    A demurrer was filed to this bill because it showed that more than twenty years had elapsed since the making of the mortgage, within which time no part either of principal or interest had been paid.
    This demurrer was overruled by Chancellor McGill (9 Dick. Oh. Rep. 17), upon the ground that the presumption of payment which in such eases is raised, was rebutted by the explanatory circumstances that the executor (who was the mortgagor) had failed to account; that he was a member of and closely connected ■with the family to whom the mortgage was payable, and that he had, as executor, entered a satisfaction of the mortgage and thereby recognized its continued existence, within seven years before bill was filed, and that this certificate of satisfaction was false and fraudulent.
    Since the demurrer was overruled, the defendants have filed their joint and several answer, denying any knowledge of the debt, the bond and mortgage and the acknowledgment and recording. It denies any personal knowledge on the part of the defendants of the inventory filed by the executors of John Stimis. It denies that the estate of John Stimis remained wholly unsettled upon the death of Henry, and that the defendants have any personal knowledge of the satisfaction of the mortgage.
    The answer alleges that neither principal nor interest was ever paid by Henry Stimis, on the mortgage to John Stimis, or his widow, Ann, and that neither John nor Henry ever recognized the existence of any such mortgage; that neither John nor Ann ever demanded a payment of any part of the principal or interest.
    It further alleges that the common law period of limitation has run against the enforcement of the mortgage, if the mortgage ever had any existence, and that the mortgage cannot now be foreclosed. It is further set up in the answer that if the mortgage ever had a legal existence, a foreclosure cannot be had without an accounting of the estate of John Stimis, an ascertainment thereby of what was due from Henry Stimis, as executor of the will of John, to the devisees named therein; that if there was such an accounting, it would be found that Henry Stimis had paid to the devisees under the will of John, all that was due to them from the estate, and the law would presume such payments, even if the same could not be proved. The answer also alleges that the complainant, administrator, had made application to the orphans court of Essex county for a settlement of the estate of John Stimis, in which application the executor of Henry Stimis was required 'to show cause why he should not account for the estate of John Stimis which had come into his possession as executor of Henry,, which matter'was still pending before the orphans court undetermined, and that no foreclosure can be had until the orphans court has first ascertained whether Henry was indebted to the devisees under the will of John Stimis.

      Mr. Herbert Boggs, for the complainant.

      Messrs. Gouli & Howell, for the defendants.
   Grey, V. C.

The overruling of the demurrer is in effect a determination that if the allegations of the bill are sustained by proof, the complainants are entitled to the relief for which they pray. As the answer denies these allegations, the burden rests upon the complainant to establish them.

That the mortgage constituted part of the estate of John Stimis, deceased; that Henry Stimis, the mortgagor, was his son; that the life tenant of the mortgage was Henry’s mother, and the remainder people were' his brothers and sisters; that Henry was one of the executors of his father’s will; that the executors inventoried the mortgage as part of their testator’s estate; that they never filed any account, and that in 1887, Henry Stimis, being himself the mortgagor, acknowledged and entered satisfaction of the mortgage, as executor, is, I think, fully established by the proofs. The chancellor held on the argument of the demurrer that taking these incidents to be true, they rebutted the presumption of the satisfaction of the mortgage arising from the non-payment of any part, either of principal or interest for over twenty years.

The proofs submitted on the hearing go much further than the allegations in the bill to establish the existence of the matters set up 'in the bill as explanátory of the non-payment of either interest or principal.

That the mortgage was part of the assets of the estate of John Stimis, and passed under his will, is proven without denial. So it is undisputed that Henry Stimis accepted the execution of the will and proved it, and filed the inventory of the estate in which this mortgage was listed. He certainly never would have done this if the mortgage had not been a living asset. In this situation of affairs, Iienry became as to this mortgage a trustee bound to carry into effect the testator’s disposition of it. A proper observance of his duty would have led him to have paid the debts; stated his account, and to have transferred the-mortgage to his mother, Ann Stimis, to whom the testator bequeathed the residue of his estate (of which this mortgage formed a part) for life or durante viduitate, and to his brothers and sisters in remainder.

This was never done, and the .obligation on Henry’s part to complete this trust remained undischarged- up to the time of his death in 1891.

The influences which led Henry Stimis to this breach of his duty and to the non-payment of anything on the mortgage for over twenty years are fully exhibited in the proofs. ’ It is shown that lie was during a considerable portion of -this twenty years of non-payment quite straitened in his financial capacity, and that though he had some real estate, he was unwilling to realize upon it and pay his debts, preferring to hold for higher prices, in which he appears to have been disappointed.

Sales were made of some lands which came to Henry and his-brothers and sisters, of the proceeds of which Henry had his-share. This was a year or two after Ann Stimis’ death, in 1872' ■ — probably about the year 1874. He excused himself then from settling this mortgage, in terms which recognized its continued obligatory effect, and appealed for delay to the consideration of the family. Blaring the period from this time up to 1887, the-date when he executed and recorded the satisfaction on record of the mortgage, he “pleaded poverty,”. and the reason why payment was not enforced was thus described by one of his-brothers: “Because it would have, put Iienry in such a plight that he would never have gotten over it.” At this period — 1887' —Henry’s financial situation was such that his taxes had been unpaid for a number of years, and had accumulated to the-amount of $600. He was so pressed that he was obliged to borrow this money by mortgaging the premises now sought to-be foreclosed, and in order to do that, was compelled to remove the preceding encumbrance of the mortgage now in suit. He could not pay it as mortgagor, but as executor he still had control over the record of the mortgage, by which he could apparently satisfy it, and thus borrow the money he needed. He was sole surviving executor. He had never filed any account, nor obtained release from those entitled at his hands as executor to a settlement of the estate. He does not appear to have asked any of the remainder people to aid him by consenting to the cancellation of the mortgage. At this time (1887) the actual possession of the mortgage was probably held by Henry’s sister Eliza. If Henry had attempted to get possession of it so that the seals might be taken ofi! and the mortgage in this condition be exhibited to the register to be canceled of record, it would probably have excited suspicion. The mortgage record still stood with John Stimis as mortgagee and holder of the mortgage.

The only person who could thus cancel it was Henry Stimis, acting as sole surviving executor, &c., of John Stimis. It was easy, without actually producing the mortgage, to make and record a certificate of payment and in this way to discharge the lien of the mortgage. Henry did execute and acknowledge a separate certificate that the mortgage was “paidand discharged.” This certificate of discharge was recorded in July, 1887, the new mortgage was given to Mrs. Howell, and the mortgage money that was raised upon it was used to pay the $600 arrears of taxes which Henry owed. These several incidents were really but a single transaction, although they happened several weeks apart. All of them were brought about to enable Henry to get the money to pay his arrears of taxes.

This action of Henry Stimis, as executor, in falsely certifying that the mortgage had been paid, and in recording the certificate, without the assent of his brothers and sisters, the beneficiaries of the mortgage, was, as between them fraudulent and a clear breach of his duty as executor, and was wholly nugatory to discharge the mortgage. But it also defeated its own object, for Henry’s action was a distinct recognition of the continuance of his own status as executor with power to satisfy the mortgage, and of the fact that the mortgage record was still notice of an existing lien.

The evidence also shows that even after this discharge of the record of the mortgage, Henry acknowledged to his brothers and sisters the continued obligation of the mortgage, and his purpose to settle it, aucl kept them in ignorance that by his certificate he had discharged the record.

Their entire good faith is shown by the undisputed proof that in 1891, they caused notice to be given to Henry’s grantee of part of the mortgaged premises of proceedings to be taken to ■collect the mortgage. Henry was alive at this time, though sick and confined to his house. The grantee was his daughter, Mrs. Burling. Her husband brought this letter over to Henry and he then knew that the remaindermen had started to enforce payment of the mortgage. Christopher Stimis, the complainant, one of his brothers entitled to share in the mortgage, called ■on Henry after Mr. Burling had brought this letter to him. There is no attempt to show that Henry, then or at any other time, ever to Christopher, or to ány of the remaindermen, either ■disclosed that he had certified the discharge of the mortgage and recorded it, or claimed that he had in fact paid it.

The counsel for the defendants insist that the mere expiration ■of twenty years, during which there had been no payment on the bond or mortgage, no matter for what cause, raises a conclusive presumption that the bond and mortgage have been satisfied, and that Blue v. Everitt, 11 Dick. Ch. Rep. 455, in the ■court of appeals, is final authority that a bill cannot be maintained in this court to foreclose such a mortgage.

It is unnecessary to examine in the present case the judgment rendered in Blue v. Everitt, as to the operation upon a bond and mortgage of the presumption of satisfaction arising from non-payment of the bond for sixteen, or the mortgage for twenty years.

The very case of Stimis v. Stimis, now under consideration, was mentioned by the learned justice, who delivered the opinion in Blue v. Everitt, 11 Dick. Ch. Rep. 460, as one of those in which, because the mortgagor was also the executor of the mortgagee, an independent equity was raised in favor- of the life •of the mortgage against the consequence of the non-action of the executor mortgagor to enforce its payment, notwithstanding, the -mortgage might otherwise have been presumed satisfied by the application of the statute of limitations. It must be remembered that Henry became one of the executors of his father’s will, and as such joined in an inventory in which this mortgage was listed as part of the estate; that he continued to-hold his trust as executor during the whole period of the defaults in payment, of which advantage is now sought to be taken by Henry’s devisees. Henry Stimis was the only person who, during that period, could have brought suit to enforce the mortgage and thus have prevented the running of the statute. It was-his status as executor which enabled him to discharge the mortgage record in 1887. It was to his own interest as mortgagor and owner of the equity of redemption, to defeat the mortgage which he held as executor. lie committed a breach of trust for his private profit.

The defendants insist that this ruling in Blue v. Everitt, recognizing the special equity of the present Stimis suit, was-based on a mistake of fact in that it assumes that the mortgage came into the possession of Henry Stimis, the mortgagor, as executor of the mortgagee. The reference in Blue v. Everitt to-this case of Stimis v. Stimis was, of course, based on the narration of facts in the chancellor’s opinion overruling the demurrer.

It is true the mortgage itself, after it had been inventoried by Henry, as executor, came for a time into the mere custody of Henry’s sister, but there is no proof that her holding of it was by virtue of any authority over it whatever. The court of' appeals in Blue v. Everitt, in mentioning Henry’s possession of the mortgage, did not refer to the physical holding of the paper, but to his control as executor of the right to enforce payment of the mortgage. Those in remainder entitled to the-mortgage, had, because of Henry’s status as executor, an equity to have this duty of the executor performed as a trust. When therefore those who stand in Henry’s place attempt to set up-the statute of limitations as conclusive because of the presumption of satisfaction of the mortgage, it is well replied: “The-delay in enforcing payment was a breach of trust duty on the-part of him under whom you claim, and it does not lie with you to set up against us, to whom the duty was owing, any rights created by that breach.”

Some criticism was made by defendants’ counsel because of' the non-production by tbe complainant of the bond which was secured to be paid by the mortgage in question. The evidence shows that Henry had joined in an inventory of both the bond and the mortgage, thereby acknowledging that they had the bond in possession. It was his duty to have cared for it. He was the only person who could sue on it after his mother’s death in 1872. It was for him and those who stand in his place, and not for those to whom he owed a duty, to account for' the bond. The proof showed that it came to the hands of Henry’s sister some time after the inventory was made, but without any authority in her either to hold it or to sue on it. Afterwards, in some unexplained way it was lost. The bond was not the debt, but merely the evidence of it. The loss or non-production of the bond did not pay the debt. There is not a single element of proof in the whole case to show that Henry ever in any way paid it. The non-production of the bond cannot defeat the complainant’s right to foreclose the mortgage.

There is a suggestion in the answer that inasmuch as Henry Stimis’ account as executor of John Stimis’ will is yet unsettled, the foreclosure of the mortgage should be delayed until that account has been stated and allowed. This accounting was due in 1853. Stimis v. Stimis, ubi supra 21. Henry’s delay of more than forty years to account as executor, is now set up to postpone the payment of his own mortgage, one of the assets of the estate. If such a defence could at any time be entertained, his long and inexcusable delay has destroyed it. Moreover there is nothing in the evidence which in any way indicates that the estate of John Stimis was to any extent indebted to Henry Stimis, or that the latter had as executor expended any of his own moneys for that estate.

The complainant’s counsel concedes in his brief that he has failed to sustain his allegation that Mrs. Burling took the portion of the mortgaged lands which TIenry Stimis conveyed to her after the discharge of the record, with notice that the certificate of discharge was false and fraudulent,' and that no decree should be made against the Paterson and Newark Eailroad Company as to the part of the mortgaged premises conveyed to that company, as it is not a party to the bill. The complainant only asks for a decree against the portion of the mortgaged premises, the title to which still remains in the devisees of Henry Stimis.

■ I will advise such a decree, and that the amount due on the mortgage is the principal sum $500, with interest thereon from February 13th, 1872, the date of the death of the life tenant, Ann Stimis.


text:
    Alice Weigel v. Philip Weigel.
    [Filed September 24th, 1900.]
    1. The burden of proof of a charge of violent sexual abuse rests upon the complainant who alleges it.
    2. Her uncorroborated testimony cannot carry the burden.
    3. Where the testimony of a wife as to matters known to other and disinterested witnesses is by them shown to be false, it is discredited when addressed to the narration of the privacies of her married life.
    4. A decree for divorce a mensa et thoro will only be granted where it is affirmatively shown that there is such extreme cruelty as threatens to endanger the future health or life of the complainant.
    On bill for divorce a mensa ei thoro, &e. Answer and proofs.
    The marriage of the parties took place in 1880, at New Brunswick, in this state, where they have ever since resided.
    The bill is framed upon allegations that the defendant husband has always shown towards the complainant a miserly disposition, prohibiting her from all social enjoyment and even from necessary household expenditure, treating her with continuing violence and cruelty. It alleges that in 1889, she was obliged to leave him “owing to his cruel treatment.” Wherein this cruelty consisted is not stated. The bill further alleges that she returned after six weeks, on promise of better treatment, and remained until July, 1897, when she again fled from her home, with her three youngest children. That ever since her return to her husband it has been his constant habit to curse her with vile epithets, and to accuse her of adultery and prostitution, and to deny their children’s paternity, all in their presence, and also to strangers; to smash dishes and make murderous threats; to refuse properly to clothe her and their children; to threaten to put her in an insane asylum; to keep visitors from calling on her; to declare he intended to drive her crazy; to speak fondly to complainant of his typewriter; to prohibit complainant’s family from visiting her; to conduct himself brutally and indecently before their children. It is especially charged that he deprived complainant of proper food, and by forcing her to submit to “his unbridled sexual ferocity, caused her to suffer seven miscarriages,” and almost killed her, completely destroying her health and shattering her nerves, so that at times her mind wanders, and she is in danger of becoming permanently deranged, unless relieved of such a life; that the sheerest necessity has compelled her to leave her husband, which she did, as stated, on July 17th, 1897.
    Although the bill as originally drawn stated no other cause for divorce than those above quoted, it prayed that the marriage might be dissolved, and that the complainant might have the custody of her children.
    The defendant has answered the bill, denying in detail each and all of the accusatory allegations of the bill, alleging that the wife has secretly and without reason left his house, taking three of his children, and articles of furniture and clothing; that his wife’s family and particularly her sister, Mary J. Welch, have interfered in the parties’ family affairs, and made trouble by secretly influencing the complainant to be hostile to the defendant, and Anally to leave his home, which he declares ever has been and is now open for her return. He alleges that he has spent an average of $3,300 per year for household purposes alone; that his wife purchased goods in defendant’s name, and gave the goods and sometimes defendant’s money to her relatives; that his wife, at the instance of her family and particularly of Miss Welch, demanded that a separate money provision should be made for her; that the object of the complainant’s suit is to compel such separate maintenance in order that her family may thereby be benefited.
    . The cause had. proceeded to hearing on the bill and answer, as above stated, no question having been raised regarding the sufficiency of the allegations of the bill to support the prayer for an absolute divorce. The evidence on both sides was addressed to the proof of a right to a divorce from bed and board because of alleged cruelty, &c., of the defendant, or to its refutation. While the hearing of the cause was proceeding, the prayer of the bill was amended by consent of parties, by striking out the request for a decree for dissolution of the marriage and inserting instead a prayer for divorce from bed and board because of cruelty, &c.
    The cause has come to argument on the pleadings so amended, and the testimony taken at great length.

      Mr. Francis D. Weaver and Mr. John W. Wescoti, for the complainant.

      Mr. Abraham V. Schenclc, for the defendant.
   Grey, V. C.

This cause has been presented by the most elaborate and searching proof of all the details of the married life of the parties. The frame 'of the bill of complaint claims the existence of certain special facts of cruel treatment by physical violence, and also contains charges of lesser acts of brutality, resulting in danger to the complainant’s health, and even to her reason, and alleges her departure from her husband’s home as a consequence. The defendant’s denial is full and complete as to each and every allegation of misconduct made against him.

The complainant states a case on which she asks relief. The burden of proof is upon her to show the existence of the facts necessary to sustain a decree. The rule is the same when the bill is filed for divorce because of extreme cruelty on the part of the husband. Fischer v. Fischer, 3 C. E. Gr. 300. The most serious charge, the only one specifically set forth in the bill, which is of itself indicative of such cruel treatment as would support a decree, is that the defendant violently and agalnst-the complainant’s will, while she was sick and enfeebled, forcibly compelled her to submit to sexual intercourse, and thát this conduct was so frequent and continued that it had caused the complainant to have a number of miscarriages, and had undermined her health and endangered her reason.

Such a course of misconduct on the part of a husband, if supported by evidence which raises a reasonable apprehension that further acts of the same abuse will be committed if the wife should return to him, would constitute the extreme cruelty contemplated by the statute. English v. English, 12 C. E. Gr. 585 (Court of Appeals).

The testimony in support of this allegation is that of the complainant herself. The defendant explicitly denies the alleged forcible assertions of his marital privileges, and also that the miscarriages claimed by the complainant are attributable to any such cause.

In such a clashing of the proofs there must be evidence either direct or circumstantial to sustain the complainant’s charges, or they fail of proof. The complainant submits none which corroborate her own narrative.

The only attempt to support this charge by the testimony of other persons is offered by Miss Mary Welch, the sister of the complainant. This relates to an alleged attack in the early morning some time in 1891 or 1892, at least five years before the filing of the bill. Miss Welch does not say she was present when the incident began, nor does she state anything which gives to the matter the coloring with which the complainant paints it.

All Miss Welch testifies is that the complainant declared that the defendant would kill her; that she (Miss Welch) went down to their room, and the defendant, when she went in, began to swear about a clock. The testimony of Miss Welch is in no way corroborative to show violent sexual abuse or to define in what way the complainant claimed that the defendant would kill her. The whole incident is denied by the defendant. -

This failure to carry the burden of proof would of itself remove this alleged cause from further consideration. But even if the wife’s story were uncontradicted, it could not alone support a decree for divorce. The essential facts entitling the complainant to a divorce cannot rest solely upon the testimony of the complainant. Tate v. Tate, 11 C. E. Gr. 56, in this court, and cases .there cited, and McShane v. McShane, 18 Stew. Eq. 341 (Court of Appeals).

It is difficult, of course, to make affirmative proof of such a charge, because of the privacy which decency imposes upon such incidents, but it must be remembered that all the wrongfulness attributable to such misconduct is a matter of degree, and that proof that there was no excess which may be the sole defence is even more difficult. It is, however, but just to say that such evidence as throws any light on this point, tends to show that the accusation made against the defendant husband is false, and also to account for the miscarriages in a way which imputes no blame to the husband, but which need not be here discussed. The, complainant testifies that her doctor attended her for all of the miscarriages save one. He was called as a witness by the defendant, and his testimony taken by special deposition. It tended rather to contradict than to confirm the complainant’s accusations against the defendant.

The letters written by the complainant between September, 1891, and August, 1895, at about the period when some of the miscarriages occurred, indicate that the charge of habitual sexual violence is untrue.

The letters speak without the strain attendant upon this litigation, and show that the relations between the husband and wife were most kindly. They áre expressed in terms which indicate a confidant certainty on the part of the wife that the husband understands and affectionately appreciates her, and that she is happy in that belief. It is very difficult, if not impossible, to reconcile the tone of these letters with the present testimony of the wife as to the habitually violent conduct of the husband, and her sufferings consequent thereon.

The only other charge of actual physical violence is the claim that-the husband, wholly without cause, struck the wife in the face when she asked him to be careful in moving a chair. This incident does not appear in the bill, but-is narrated by the wife in her testimony. The blow is claimed by her to have been given without' any' previous conversation or quarrel. As it is the only blow claimed to have been struck during the whole of their married life, the story as told is somewhat incredible. It is denied by the husband, and is entirely uncorroborated. It is within the rule above quoted, that an incident essential to support a decree for divorce must not depend wholly on the testimony of a complainant. '

The residue of the charges may be classed together as exhibitions of the infelicities of married life, no one of which would of itself justify a decree on the ground of extreme cruelty, but which might (if all were proven) show such cruel conduct on the part of the husband to a wife, whose ill health had reduced her vitality and lessened her nervous power, that for the future protection of her life or health, a decree for divorce a mensa et thoro might be necessary.

All of these charges are denied by the husband, and almost all of them are specifically refuted by the proofs. The complainant, in her testimonjq attempts to support all of them. The refutation as to some of them is so broad and clear as to throw doubts upon the veracity of the complainant, when she is - testifying upon those more private matters which could be known only to the defendant and herself.

It should be noted that the bill charges that habitually from 1889 to 1897 the defendant cruelly dealt with the complainant in the manner recited in the bill, until her health was undermined. The allegations of the use of foul language and vile epithets' has but little weight as an element of cruel treatment,' when the complainant is forced to admit that she herself openly accused her husband of unfaithfulness, a charge which is fully refuted in the proofs. The testimony of some of the servants also shows that she frequently used such language as precludes a belief that the hearing of that charged against the husband, if it was ever spoken by him, could have seriously affected her health.

The allegation that the defendant refused properly to clothe the complainant and his family, and' that he deprived them of proper'food, is entirely overthrown'by proof that the complain-' ant herself during almost all of their entire married life bought the supplies'for the household of-such kind and quantity as she deemed fit; that the only restraint put on her by her husband was 'occasioned by his belief that -she was using his money for the benefit of Miss Welch, and then his interference did not prevent the getting of supplies for the family, biit only the misuse of his money. The wife herself then, during the last six months of her stay at her husband’s home, refused to buy for the household, and it was done by the defendant or by the servants, and without any limitation of quality or quantity. Storekeepers and family servants in great number exhibit this condition of affairs.

The charges of deprivation of help in the family, and the forcing the complainant to hard labor when in ill health, the denial of nurses when she was sick, are all refuted by the production as witnesses of the many servants and nurses, most of whom were both employed and discharged by the complainant herself.

The alleged prohibition of the complainant’s family from visiting the home is also shown to be false, the complainant’s own testimony showing visits from her mother and her sister, ■and her letters also show that she visited her own family.- Miss Welch was, it is true, at the later period of the married life, forbidden the house by the defendant. He admits it and justifies it. It cannot be said, even if he were mistaken in issuing this prohibition, that his exclusion of Miss Welch from the house is an incident of much weight in showing extreme cruelty 'to the complainant. The head of the house certainty had a right,. within reasonable bounds, to prescribe who might be admitted to his household. He believed he had good grounds to forbid Miss Welch’s presence, and his forbiddance, especially as it was fruitless to exclude Miss Welch, cannot be held to have been an element of cruel treatment of his wife.

The sum of all the allegations of cruel treatment is that the complainant was driven by it to such a condition of broken health and shattered nerves that her reason was threatened and she was compelled to leave her husband’s house in July, 1897. This is circumstantially and flatty contradicted by the defendant. Such a condition of health would most probably be apparent to those with whom tire complainant came into personal association in her daily purchases. These persons, who had known her for years, and also the servants in the house, agree that she showed- at this time all the indications of robust 'health. Evidence of such a loss of health might readily have been strongly supported by the testimony of the physician, who the complainant swore her father called in when she arrived at'his home in July, 1897, her health so run down that she could not stand the life her husband had imposed upon her any longer. The complainant gave the name of this physician, but she did not call him as a witness.

The children of this unhappy pair have been brought into court as witnesses in support of their mother’s claims that her husband used her cruelly. The demeanor of the children when on the stand, and the uncertain and varying character of their testimony strongly, indicate that they are influenced, as naturally they might be, by their greater affection for their mother, to color their testimony to favor her claims. If all they stated was true, it does not exhibit a case for a decree for divorce because of the extreme cruelty of the defendant.

The trend of all the testimony on both- sides shows that the real difficulties between the- parties which led the complainant to leave her home, were not those set forth and made the subject of complaint in the bill.

The defendant was a merchant, absorbed in his business, and desirous that his household should be managed and conducted with economy. The proof shows that he was fond of his wife, so far as she would permit, and of his children, and that far from depriving either her or them of the necessaries of life, he provided for them according to his station in life, by allowing his wife to purchase at her will, at various shops, supplies of all kinds for their home. That from an early period in their married life, the husband had (whether with or without reason, is, in my judgment, of little consequence) disliked the presence of Miss Mary Welch, his wife’s sister, in his home, and had several times requested his wife not to have her there, and had finally told his wife not to receive Miss Welch, and had forbidden the' latter to. come to his home. This direction of the husband neither the wife nor. Miss Welch ever accepted in a spirit of obedience. Miss Welch came to the house surreptitiously, and was received by the wife in defiance of her husband’s prohibition. Out of this line o'f conduct grew the char'gés of the husband that his money was used for the benefit of Miss Welch, and other members of his wife’s family, and the refusal of his wife to make purchases for the household if she were obliged to account for the money she 'spent. The substantial basis of all the quarrels during the year previous to the wife’s leaving the house is traceable to this defiant determination of the wife to accept the guidance and control of her sister rather than of her husband. This condition of affairs reached its climax in the early'part of 1897, when the complainant denied the defendant access to her room, and refused longer to purchase the supplies for the household. The incident of the anonymous letter sent to the defendant in Majr, 1897, denouncing and threatening him for his treatment of his wife, the'charge that Miss Welch sent if, her arrest, the quarrels about the defendant’s typewriter, and the false accusation against him of adúlterjr, all happened during the spring and early summer of 1897. The complainant left the defendant’s house in July, 1897, of her own accord, without the knowledge of her husband. All these incidents of dissension happened very shortly before the complainant left her husband’s house, and were undoubtedly the provoking cause of her leaving.

The complainant’s counsel urged with much energy that in leaving her' husband’s house the coriipláinant sacrificed all the comforts of life, and that there must have been some tremendous' motive which induced her to give up all the attractions of her husband’s home and to flee to the comparative poverty of her father’s house.' He insists that it must therefore be believed that her account of the reasons for her flight is true, that it can be explained in no other way.

The burden of proof as to the happening of specifically’narrated events can hardly be carried to such a conclusive result by mere presumption; especially when the wife’s testimony upon which the'inference depends is woefully' discredited at almost all points where it is met by' that of disinterested witnesses. It must also be noted that the alleged causes set forth in the bill are narrated by the testimony of the' wife to have happened many years before the separation, the wife meantime living, as her letters show, happily in her married life, while the incidents attending the quarrels about Miss Welch very shortly preceded the separation.

Running through the proofs are many indications that the wife was actuated by a belief that she was free to leave her husband, if she chose, and that she could yet compel him to divide his means with her or separately support her. Such a belief on her part, when she had lost her affection for her husband, would readily account for her apparent sacrifice of material comforts.

The cases in this state declare that the remedy by decree of divorce for extreme cruelty is applicable not as a punitive, but as a preventive measure, to protect the health or life of the wife in the future from threatened danger. Burton v. Burton, 7 Dick. Ch. Rep. 219; English v. English, ubi supra. In this case there is no condition of threatened danger. The proof shows that the wife left her home of her own free will, without just cause, and that she may now return to it and that she will be there received by her husband.

The bill of complaint should be dismissed. '

The question of custody of children, raised by the bill of complaint, is dependent upon thq granting of the prayer for divorce and must fall with it.


author: Magie, Ordinary.

text:
    William J. Magie, Ordinary.
    Alfred Reed, Vice-Ordinary.
    George W. Ellicott and Matilda B. Baker, administrators of Peter H. Baker, deceased, appellants, v. Richard S. Kuhl, administrator de bonis non of John E. Case, deceased, respondent.
    [Filed July 18th, 1900.]
    When a trustee has received trust moneys and thereafter dies insolvent, the claim of the cestui que trust cannot be preferred over the claims of the general creditors of the deceased, unless it appears that the trust moneys were used by the trustee in the purchase of property which he retained until his death, or were deposited by the trustee in his bant account, a balance of which remained undrawn at his death, or were otherwise traced into specific property left by the deceased, in which cases the claim of the cestui que trust is not that of a creditor, but of an equitable owner of the trust funds or that into which they can be traced.

      On appeal from the Hunterdon county orphans court.
    The following is the agreed statement of the facts presented to the orphans court, upon which its decree was made, and upon which this appeal is based, no written evidence being taken down in the orphans court:
    1. John E. Case died intestate in Hunterdon county in 1863, and John L. Bush and Peter H. Baker were appointed his administrators.

      2. As such administrators they received $283.73 to invest for his widow during her life and after her death to be paid to his heirs.
    3. This was invested on bond and mortgage and interest paid to the widow.
    4. In 1875 John L. Bush died; one John L. Jones was appointed his administrator, and in December, 1877, he received full payment of the mortgage, and on April 1st, 1878, paid the interest to the widow and the principal to Peter H. Baker, as surviving administrator of Case, by check, which was endorsed bjr Baker, and he drew the money thereon from the bank.
    5. Ho trace of the fund can be found after Baker received this money, although he told the widow, Mary Case, and her children he had it invested.
    6. Baker paid the annual interest to Mary Case up to April 1st, 1893, and died intestate September 18th, 1893.
    7. The appellants were duly appointed as administrators of Baker.
    8. The respondent, in September, 1894, was duly appointed administrator de bonis non of the estate of John E. Case.
    9. He presented to the Baker estate a claim for said $283.73, alleging it to be a preferred claim, and the orphans court decided that it was a preferred claim, and should be first paid out of the estate of Baker, because it was for trust funds received by Baker.
    10. The estate of Baker is .insolvent, the claims aggregating $5,355.33 and the assets only $1,709.40.

      Messrs. Finch & Parker, for the appellants.

      Mr. Edward P. Oonhling, for the respondent.
   Magie, Ordinary.

From the agreed state of the ease it appears that Peter H. Baker, the survivor of the two administrators of John E. Case, received payment of a mortgage in which the administrators had invested funds of the estate upon which Case’s widow was entitled to interest for her life, and at her death the principal was to be paid to Case’s heirs-at-law.

The money secured by the mortgage was paid to Baker in 1878, who died intestate in 1893, and his estate is insolvent.

The respondent, who is the administrator de bonis non of Case, has obtained a decree of the orphans court on the agreed upon facts, preferring his claim upon Baker’s estate for the money received by Baker upon said mortgage, and appellants, who are Baker’s administrators, appeal therefrom.

Yo opinion was pronounced in the orphans court, but it is intimated in the briefs filed in this appeal that the court deemed itself to be following the decision of this court in Smith v. Combs, 4 Dick. Ch. Rep. 420.

But there was a radical difference between the facts of that case and those upon which this case, must be decided. In that case Vice-Chancellor Bird found, upon the evidence, that the trust funds had been invested by the trustee in bank stock, which he held at the time of his death. The funds were therefore traced to a particular property which the trustee had acquired by their use. It is now a well-settled doctrine that the cestui que trust who can trace the trust funds into a particular property may assert a right to that property and its proceeds, if sold, if the proceeds remain traceable and are found in the hands of those who can assert no better right thereto.

notwithstanding some of the expressions in the opinion of the learned vice-chancellor in Smith v. Combs, when the facts of the case are considered, I think it clear that he did not intend to express any different doctrine upon the subject than that developed by cases in our own courts.

The earliest case is that of Nevius v. Disborough, 1 Gr. 343, in which the surviving judges in the supreme court made use of an opinion drawn up by Chief-Justice Ewing, then lately deceased. The facts involved in that '‘ase are singularly like those now before this court. The deceased had converted trust property into money, which could not be distinguished from the mass of his estate. And it was held that the trustee, having made an assignment for the benefit of his creditors, the cestui que trust stood on the same footing as other creditors.

The doctrine announced in that case was amply sustained by the decisions cited and relied on by the chief-justice, and has been supported by many cases cited in the full and able brief of counsel for the appellants.

But counsel conceive that the doctrine has been .enlarged and extended by later cases also cited by him. The most interesting and instructive of them is In re Hallett’s Estate, 13 Ch. D. 696, in which it was held that when a person acting in a fiduciary character places money acquired in that character in his account at a banker’s and mixes it with his own on deposit there, what he afterwards draws therefrom will be presumed to be drawn from his own deposit, and what remains on deposit will be presumed to be held for the person for whom the depositor held the money. But I think the doctrine of that case and of others of the same character is not an extension of but merely an application of the original doctrine which has various applications, as declared by our court of errors in Shaler v. Trowbridge, 1 Stew. Eq. 595, and by Vice-Chancellor Van Fleet in Standish v. Babcock, 7 Dick. Ch. Rep. 628, for when moneys of a trust fund are traced to the bank account of a trustee or person acting in a fiduciary capacity, and there are moneys remaining in the account to satisfy the whole or part of the fund, the cestui que trust, or person whose fiduciary agent has placed the moneys in such an account, may follow and take those moneys, because the presumption is that the moneys previously drawn from the account were rightfully drawn, and were chargeable first upon the private deposits with which the trust funds had been mingled. Thus considered, the whole or part of the -trust fund has been traced to the account and found there, and the cestui que trust may assert his right to it.

The case of Standish v. Babcock was reversed in the court of errors, but no dissent from the doctrine I have stated was there expressed. The reversal went on the ground that the trust fund had been turned into money and used by a trustee in the paying a bona fide obligation to a creditor who was wholly ignorant that the payment was made from the proceeds of the trust property. It was held that the creditor might accept such money and retain it against the cestui que trust, not because money has no “earmark,” but because it passes in all bona fide transactions without necessity of inquiry into the title of the debtor who makes the payment. Babcock v. Standish, 8 Dick. Ch. Rep. 376.

The true doctrine was no doubt applied in Smith v. Combs, for the trustee had purchased property with the trust funds, and the property remained in his ownership at his death and went to swell the amount of his estate. The cestui que trust was, therefore, held entitled to claim its proceeds, not as a preferred debt, but as property to which he had a right as against the deceased, or those who claimed under him.

But it can have no application to a case like that before me, where the trust fund received by the trustee in money is not shown to have been employed by the trustee in the purchase of property, or to have been deposited so that the property- purchased, or the balance of the deposit, may be traced as derived-from the trust fund.

To prefer the claimant of the trust funds in such a case might, perhaps, be directed by the legislature. But there is no equitable-ground upon which the preference of such a claimant can be permitted, unless by proof he traces the trust property into that which remains of the trustee’s estate. Here no such proof is advanced. Eor aught that appears, the trustee may have casually lost the money upon the mortgage, or he may have squandered and wasted it. It is not identified with that remaining in his-hands as a part of his estate.

Eor this reason the decree below must be reversed.


author: The Vice-Ordinary.

text:
    In the matter of the probate of paper purporting to be the last will and testament of Mary A. Carter, deceased.
    [Filed June 26th, 1900.]
    The iacts do not prove that the testatrix was unduly influenced in masing her will.
    ilir. Woodbridge Strong/proctor for the petitioner.

      Mr. Henry B. Cook, proctor for the respondents.

      Mr. William D. Daly, of counsel for the respondents.
   The Vice-Ordinary.

This is an application to have admitted to probate a paper dated December 14th, 1899, executed by Mary A. Carter, then .and at her death domiciled in the city of New Brunswick, Middlesex county.

A caveat was filed in the surrogate's office of -that county, and the will is now produced in this court for probate.

The paper was executed in conformity with the statutory requirements. The grounds urged against the validity of the instrument are — first, want of testamentary capacity in the testatrix, and second, that its execution was unduly influenced by two of the beneficiaries, in conjunction with the attorney who drew the will.

The objection to the validity of the will, upon the ground of want of testamentary capacity, has no substance. Although the testatrix was about eighty-one years of age, and from an injury to her hip, was somewhat of an invalid, and although she was unable to read and write, she yet had strength of mind and a natural sagacity which was rather remarkable in a woman of her age and education. All the testimony exhibits her as one thoroughly conversant with her own affairs, and with the kind and value of her property, and with a full knowledge of the number and degree of kinship of her relations. Eurther consideration of this phase of the case may be dismissed.

In the second place it is charged that the provisions of the will were the offspring of the influence of Michael Hearn and John Eitzgerald, two of the principal beneficiaries, in the interest of whom was the attorney who drafted the instrument. It is also charged that this influence was unduly exerted upon the mind of the testatrix.

The charge that the draftsman of the will was operating in the interest of Hearn and Eitzgerald to secure a testamentary disposition in their favor by any influence, undue or otherwise, is unsupported by any testimony whatever. The gentleman thus charged is a practitioner of this court, of unblemished reputation and acknowledged learning, who has twice held important judicial positions by ajipointment, and whose character alone would refute a charge of the exertion of undue influence upon the mind of any person, by whom he was called in to advise.

But apart from the character of the draftsman, there is no evidence that would impute to any person, standing in his stead, and acting as he did, such a course of conduct. Eor a considerable period this old lady had had in mind the settlement of her affairs, in view of her death. She had spoken of it to her attorney, who afterwards drew the will. She was waiting for the final settlement of a litigation and negotiations in which she, as an executrix of her husband’s estate, vras concerned. The attorney who had been the adviser of herself and Eitzgerald, the other executor of her husband, had stated to her that in view of the amount of business that he had already done, he would, whenever she concluded to execute her will, draw it without charge. She told him, in an interview upon another matter, a short time before the will was executed, that she would send him a memorandum of instructions. This memorandum was afterwards prepared in the handwriting of Michael Hearn, and by Hearn taken to the office of the draftsman. The provisions, so far as they concerned the beneficiaries Michael Hearn and his wife and John Eitzgerald and his son, were the same in the memorandum as afterwards in the will. There is no evidence that previous to the forwarding of this memorandum to the draftsman there was ever one word between the latter and the testatrix in respect to the manner in which, or the persons to whom she should'leave her property. After receiving the memorandum he visited the testatrix, read it over to her, and asked her if it was all right, and she said it was. At that time she made some additions to the memorandum, which additions are in the handwriting of the attorney.

Again, on. the 13th of December he went to the house of testatrix to get her acknowledgment to a deed. He had written the-will, had it with him, and he then read it over to her, and she said it was what she wanted.

On the next day the will was executed, when it was again read over to her in the presence of the other witness to it. The only suggestion made by the scrivener was in' calling testatrix’s attention to William J. Fitzgerald, a grand-nephew, whose name was not upon the memorandum. At the close of the interview she concluded to insert his name for a legacy of $500. The-suggestion was entirely proper and creditable. Previous to the execution of the will, the testatrix had made, as a part of her scheme for the final distribution of her property, three deeds, one to John Fitzgerald for a property in George street,- another to Michael Hearn of a half interest in the property in which she lived, and' a third to William J. Fitzgerald for the property in which he lived, reserving a life interest to herself in each of the properties. These deeds were all drafted by the gentleman who-subsequently drew the will.

■Voluminous testimony was introduced as to what occurred at the time of the execution of these deeds, with the design of imputing some misstatement then made by the draftsman of the subsequent will. But the order of events in the execution of these various papers, the condition of affairs at the time, the conversations alleged to have occurred, and the explanation of the witnesses for the proponent, relieve the case of the slightest imputation of misstatement or collusive conduct by the attorney who conducted the affair.'

The case of the caveators then must rest upon the alleged’ undue -influence exercised by Michael Hearn and John Fitzgerald, or either of them.

Michael Hearn had married, as his first wife, a niece of the testatrix. For a number of years Michael Hearn had occupied ■apartments in a part of the same building of which the testatrix •occupied another part, Hearn conducting a saloon business on the first floor of the said building. The testatrix kept her own ■house, having a servant of her own. The relations of Michael Hearn towards the old lady was that of a friend, who had been related to her by marriage, and who had looked after such business affairs as needed attention, principally the collection of the rents of the property of the testatrix, and payment of the bills of the old lady. He says the rents he collected were turned over to her in money, and the bills that he paid were paid from moneys which he received from her at the time of payment. He denies having ever introduced the subject of making a will to the testatrix; he says that she spoke of the matter to him, ■and asked him to take paper and pencil and write down an estimate, made by the old lady and himself, of the value of her property remaining after the execution of the deeds already referred to, to be disposed of by will. He says that they together went over the different items of property and discussed their value; that then she directed him to put .down the names •of the legatees and the amounts of the several legacies, as they .appear upon the memorandum, afterwards taken to the draftsman of the will. He says that he had never asked her to leave him or his family anything, but she had indicated her intention to leave him the one-half interest in the property in which they lived; that the bequests of $1,000 to himself and to his wife were first made known to him at the time she directed him to place them upon the memorandum, and that he then thanked her for her kindness.

The other beneficiary, John Fitzgerald, was the only living nephew of the testatrix. He was, together with the testatrix as •executrix, the executor of her husband’s estate. He was employed in the city of Trenton, visited New Brunswick once in two or three months, at which times he called upon testatrix. He denies having ever attempted to influence the testatrix in his •own favor, but says she had often announced her intention of giving him the George street property, and had said that was all he would get. He admits conversing with her about the legacy left to his son, whose education is provided for under the terms of the will. The provision is that a sufficient sum should be set apart to realize annually $250, which shall be paid for the education of the lad until he attains the age of twenty-one; that ho is to receive the sum so set apart. He admits discussing with her the amount which would be sufficient to pay for such education, and also the sum which should be set apart to realize this annual sum.

In addition to this provision for one of John Fitzgerald’s sons, there was a legacy of $1,000 left to another son.

How the relations of both Michael Hearn and John Fitzgerald to the testatrix were such undoubtedly that any unnatural or extravagant bequest to them, to the exclusion of others, who by kinship or otherwise had equal claims upon the testatrix, would be calculated to arouse the suspicion of the exercise of personal influence by the beneficiaries upon the testatrix.

The first inquiry, therefore, in eases of this kind is, was the testamentary disposition unnatural — such as a rational person 'under the conditions would not have been likely to make ?

How it' appears that the estate of this testatrix, previous to the making of her deeds, as a part of her scheme of testamentary disposition, as already mentioned, amounted to about $40,000. She deeded to John Fitzgerald property worth about $10,000; to Michael Hearn a property valued at .about $2,000, and to William J. Fitzgerald a house valued at about $1,000.

In addition, Michael Hearn and his wife each got $1,000 under the will. John Fitzgerald himself probably got nothing under the will for, although he is made residuary legatee, it is pretty evident that the residue will not, and was understood at the time of the execution, would not be of much value. One of (he sons, however, will get about $5,000 and the other $1,000.

How, after taking into account the legacies left to the two' parishes — the $5,000 and the $2,000 — and the legacy to the orphan asylum of $2,000, and the general distribution of the balance of the estate among her collaterals, it cannot be said that the distribution of the property was so irrational as to in itself afford evidence that the will was the product of undue influence. The closeness of kinship, friendship, religion and kindly services are amply sufficient to account for any seeming diversity in the amounts of the legacies. The case rests wholly on the fact that Michael Hearn lived in the same house as did the testatrix, and that John Fitzgerald was associated with her as the executor of her husband’s estate. There is not proved a single attempt on the part of either of these gentlemen to control the testatrix in the disposition of her property. They deny that any such attempt was made. More than this, it is highly probable that the purpose of anyone who so attempted to influence the testatrix would have been foiled, for she seemed to have been possessed of quite a remarkable degree of sagacity and stubbornness.

I will advise a decree admitting the will to probate.


text:
    In the matter of the assignment of Daniel Elmer for the benefit of his creditors.
    [Filed April 10th, 1900.]
    The statute required that the assignee for the benefit of creditors should notify creditors to bring in their claims within a prescribed time or be forever barred. The notice given was to bring in such claims or else be forever barred from coming in, unless by special order of the court on an application made to it for that purpose. — Held, that the notice was not in conformity with the statutory requirement.
    These are two appeals from orders of the Cumberland county orphans court; one, allowing David Flemming and Reginald L. Hart to file a claim against the estate of Daniel Elmer,-and the other allowing Henry Levis to file a claim against the same estate.
    On July 23d, 1897, Daniel Elmer made a deed of assignment to William A. Logue for the benefit of his creditors. On July 28th, 1897, upon application of the assignee, the said orphans court made an order directing the assignee to give public notice' to all creditors of Daniel Elmer to present their claims to said assignee on or before the 24-th day of October, 1897, or to be barred from coming in for a division of said estate, unless by special order of the court on an application for that purpose. This notice was duly given.
    On October 23d, 1897, Flemming and Hart filed a claim with the assignee for the sum of $6,200, with interest and costs of protest on a note of Daniel Elmer, upon which the claimants were sureties. On the same date the assignee acknowledged the receipt of said claim, but questioning whether the claimants (who were accommodation endorsers on said note, who had not paid the same) were in a position to prove their claim, and saying that it was his (the assignee’s) purpose to have the time for proving claims extended by the court. Exceptions were filed to the claim by the Millville Rational Bank, which exceptions were allowed. The claimants, after having paid the said note, presented a petition for an order to be allowed to prove their claim, and the court, on May 9th, 1898, made an order permitting the claim to be filed.
    On May 11th, 1898, the court made an order barring creditors.
    From the decree o^ May 9th, the Millville Rational Bank has taken an appeal.
    On June 6th, 1898, Levis applied for an order to prove a claim for $2,000 against the estate of the assignor, and the court made an order permitting him to present his claim. From this decree of the orphans court an appeal was also taken.

      Mr. Walter II. Bacon, proctor for the appellants.

      Mr. James S. Ware, proctor for Flemming and Hart, respondents.

      Mr. John 8. Mitchell, proctor for Henry Levis, respondent.
   The Vice-Ordinary.

The main ground of attack upon the decrees made by the orphans court, extending the time in which the respective claimants could file their claim, is that the court had no power to make such order.

As the Assignment act stood previous to 1884 all creditors (advertisements having been given and a list of creditors having heen filed by the assignee, according to the fifth section of the Assignment act) who did not present their claims within three months from the date of the assignment were barred, unless the estate prove to be sufficient to pay all debts, or such creditors could find some part of the estate not accounted for by the assignee before contribution. Rev. Stat. of 1874 p. 15 § 20; Ellison v. Lindsley, 6 Stew. Eq. 258.

In 1884 (P. L. of 188k P- 128) it was enacted that a creditor could present his claim at any time before final dividend, but that such presentment did not entitle him to share in any dividend declared before the claim was presented.

In 1895 (P. L. of 1895 p. 615) it was enacted that the orphans court, upon application of an assignee, could fix a time, not less than four weeks from the date of the order, requiring creditors to present their claims or else be forever barred from coming in for a dividend, unless by special order of said court on an application made to it for that purpose. This act, it is perceived, recognized the power of the orphans court to make a special order, and so relieve a creditor from the bar which would otherwise arise for not filing the claim within the time originally fixed by the court.

It is to be remarked that the revised act of 1899, section 21, contains a provision for an extension of time to bring in claims.

But it is urged that during the period covering the proceeding now under review there existed no power of extension when the statutory notices were once given to creditors.

The counsel for appellants insists that the act of 1895 as well as the act of 1884 were repealed by an act passed in the following year. P. L. of 1,896 p. 177. This act is entitled “An act to amend an act entitled ‘An act to secure to creditors/ ” &e., which amendatory act was approved Eebruary 15th, 1886. This act, it is said, restores the assignment .statute, in respect to the matter of bar against claims, to the same condition it was previous to 1884. By the title to this act, it is perceived, it purports to amend section 5 of the amendatory act of 1886. ISTow, it is to be observed that the amendatory section which the act of 1896 proposes to amend liad already been amended by an act of 1894. P. L. -of 1891¡- p. 58. By force of the latter act the act of 1886 had been entirely superseded. The act of 1896 therefore purported, in its title, to amend an amendment, which amendment was not an existing law at all, but which had already been superseded by another amendment as well as by the general act of 1894, which repealed it by implication. The validity of the act of 1896 is questionable, upon the ground that the title to the act was misleading. New York, &c., Railroad Co. v. Township of Montclair, 2 Dick. Ch. Rep. 591.

It is questionable also upon the ground that it purported to amend an already amended section. Blakemore v. Dolan, 50 Ind. 194; Ford v. Booker, 53 Ind. 395.

But assuming that the act of 1896 is in force and controls the assignment in question, I am clear that the respondent was not barred by the notice given by the assignee. The notices to the creditors were not in accordance, with the requirements of the act, and the particular in which it differed from the required statutory notice was calculated to mislead creditors. The act of 1896 required that the notice should apprise the creditors that the claims must be presented within the time prescribed, or be forever barred from coming in for any dividend otherwise than hereinafter provided. The allusion in the last of the sentence is, I presume, to the provision contained in section 21 of the revised act of 1874. The notice actually given was that required by the act of 1895, which apprised creditors that they must bring in their claims within the limited period, or else be forever barred from coming in, unless by special order of the court on an application made to it for that purpose.

The purpose of the statutory notice was not, in my judgment, executed by the notice given.

The statute did not merely provide for a notice to creditors to bring in their claims within the statutory period, and then provide that in case the claims were not so presented they would be forever barred. The statute provided that, in addition to the notice to present claims, the creditor should be warned of the result of his failure to make his presentation within the time limited. He was to be admonished that the claim if not duly presented would be forever barred, i. e., that there could be no-extension of time.

This notice did not inform the creditor that the failure to-present his claim within the prescribed period would result in a perpetual and inexorable bar. It impliedly led the creditor to-believe that he could apply for a special order, which would relieve him of the bar which would otherwise arise.

If it be said that the creditor was bound to know the law, the answer is that the statute provided that he should be informed of the legal effect of his failure to hie his claim within time. If the notice was not the statutory notice required, then by the terms of the act of 1896, the orphans court had the power to make the orders for extension, for the statute provides that in case of failure to give the notice the orphans court may extend and fix a time for that purpose.

I will advise a decree affirming both the orders' brought up.