author: Pee Curiam.

text:
    In the matter of the application for probate of the alleged last will and testament of Spencer W. Buckman, deceased.
    [Decided November 18th, 1912.]
    This is an appeal from-a decree of the prerogative court, affirming a decree of the-Mercer county orphans court admitting to probate the last will and testament of Spencer W. Buclanan, deceased. The reasons which led the orphans court to admit the will to probate are set forth in the following opinion of the judge of that court:
    (xNTCHTEL, J.
    “This is an application to have admitted to probate a paper dated January 22d, 1909, alleged to have been executed by Spencer W. Buckman, then and at the time of his death residing in Trenton, New Jerse}1, as his last will and testament.'
    “The application is made by Wallace Buckman and Mary Parsons, two of the executors named in the alleged will, and to [lie application a caveat has been filed by Owen Moon, Jr., and Caroline and Albert B. Wharton, grandchildren of the deceased.
    “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 testator, and second, that its execution was unduly influenced by the proponents, who are, by its terms, beneficiaries to the extent of two-thirds of the estate. At the time of the execution of the alleged will, and at the date of his death, Mr. Buclanan had three children living, namely, Mary B. Parsons, Wallace Buckman and Charles Buckman. Sarah B. Wharton, a daughter, died many years ago, leaving two children, Albert B. Wharton and Caroline Wharton. Mrs. Elizabeth Moon, another daughter, died a few days before the execution of the will, leaving one son, Owen Moon, Jr.
    “The caveators, to establish their claim of mental incapacity, have produced testimony to.show that until three or five years ago tlie testator was-a man of vigorous mentality; that he then began to fail, and that be steadily declined until the change became marked, both mentally and physically, in the spring of 1908; that he was hard of hearing; his eyesight was quite defective ; he was careless about his dress; was untidy; his memory was poor and at times he was unable to control the functions of nature; he remained in his room most of the time, and when he took a short walk the coachman usually accompanied him; he would spend considerable time in counting and recounting his pocket money and his fingers; would move his lips and utter no sounds; would sit by handling bits of cord, and slept considerably during the daytime;. at times he was childish; he failed to comprehend that the food he was eating was the same he was then asking for; to make him understand a remark it had to be repeated two or three times; in 1908 he didn’t know that Christmas was a holiday; wore his overcoat in the house for the purpose of getting wear out of it; went to bed in the middle of the day tinder the belief that be had had his supper;' at times talked irra.tionalfy and forgot where some of his children lived; could not distinguish between checks and notes; on one occasion failed to recognize his son Wallace; was incoherent at times in his speech; liad difficulty in fixing his mind on a subject; during the fall of 3908 there were occasions when it took considerable effort to attract his attention; he was dull and there was an apparent lack of comprehension. Basing their opinions on such facts as tírese, a number of the witnesses testified that the testator did not understand the business he .was transacting when he signed the will on January 22d, 1909. The majority of tírese instances can readily be accounted for by the fact that age had undoubtedly impaired the testator’s hearing, sight and memory, and it is undoubtedly true that this apparent mental decline was not at all constant. During this same period, witnesses, with equal opportunity to observe the testator and converse with him, found entirely different conditions. They testified in substance that he was a remarkably bright man for his age; that to an extent he kept in touch with current events; that he remembered people and -events both prior to and subsequent to- January 22d, 1909; that on April 7th, 1908, he executed a power of attorney to Owen Moon, Sr., which has never been questioned. On October 29th, of the same year, he executed and acknowledged another power of attorney to Owen Moon, Sr. Mr. Stephen Cook, who took the acknowledgment, found Mr. Buckman in good condition; they conversed about his health, and Mr. Buckman stated that it was because of his defective eyesight that he was confined to his room. Apparently, Mr. Cook and Mr. Moon were both satisfied that Mr. Buckman, a.t that time, fully comprehended the business he was transacting. On Christmas day* when one of the witnesses declared he did not comprehend that it was a holi■■day, the testator conversed sensibly and intelligently with a number of people. On January 22d, he asked Mr. Moon to prepare a list of his mortgages; he spoke to a number of people about the fire on the Comfort farm and about some horse thieves. .In the forepart of April, 1909, about two weeks before his death, he had an extended conversation with Ms grandson, who had assisted in the capture of the thieves. He inquired after all the details—the place where they were captured, their trial and ¡sentence, and particularly the reward his grandson received for his share in capturing the thieves. The matter seemed to be of great interest, and he expressed regret that the thieves didn’t get a longer sentence. They conversed about jury duty; that he had been a juror a number of times, and that it was good education for a farmer’s son; he spoke about the Comfort fire and he asked •aboitt the insurance, the stock that had been consumed and ■damaged, and discussed other topics gleaned from the county paper.
    “It would seem from the testimony that Mr. Buckman’s condition varied; that it was affected by Ms surroundings and circumstances; that at certain periods he'was dull and somewhat ■slow of comprehension, and at others Ms faculties were brighter and more alert. Mr. Moon, Sr., who looked after his investments, states that There were times when he seemed to be a little ■dull right at the start, but he would directly understand the conversation.’ Some of the witnesses were impressed with his • capacity to transact business, while others received a different impression. This is illustrated by the testimony of Vice-Chancellor "Walker and Mr. Linton Satterthwait, who had interviews with tiie testator at different times in December, 1904-, about a claim against a real estate agent in Trenton. Vice-Chancellor Walker testified that when he met Mr. Buckman 'he seemed very much agitated, his hands trembled and he drooled at the mouth;’ that his conversation was 'disjointed, disconnected and rather incoherent/ though out of it all there could be evolved an idea of what was wanted. That the testator’s condition was such that he did not understand or could not intelligently and understandingly transact business, and he found it necessary to turn to Mr. Moon to get á detailed explanation.
    "Mr. Satterthwait’s experience was entirely different. lie had known the testator since 1895, and states that in the interviews concerning the matter referred to by Vice-Chancellor Walker, and at about the same time, there was nothing noticeable about the testaror that would distinguish him from any other old person, that he was a remarkably bright man for a man of ninety, and his conversation was not essentially different from anyone going over the details of a claim; that his statements were intelligent and coherent, and nothing transpired that was at all out of the ordinary; that he had a peculiar manner of speech, always spoke in a high key, and had a little mannerism1 of working his lips as seeming to expel something—a spitting motion'without actually spitting.
    "These witnessss had been in the active practice of law for many years and had had extended experience with men and affairs, and the result of their observation of the testator are radically different. This is also true of other witnesses. In view of this conflicting and contradictory testimony, the occurrences at the time of and immediately surrounding the execution of the will become extremely important. The point of time at which the testamentary competency is to be tested is that of the execution of the will. The antecedent and subsequent condition of a -testator is chiefly important as bearing upon that epoch. O’Brien v. Dwyer. 45 N. J. Eq. (18 Stew.) 689.

    “The will was executed on January 22d, 1909. On January 22d, Mr. Frank S. Katzenbaeh, Jr., a lawyer of large practice and .experience, was sent for. After describing what occurred upon reaching the house, he says he was ushered into a bedroom and found ‘a very elderly man/ and after some conversation, the old gentleman said lie was an old man, ninety-four years old; that he had lived to see all his children, except three, buried; and on that day a daughter, Mrs. Moon, was buried; that about twenty years ago he liad made a will in which he had left all his property to his four children, except that he remembered his grandchildren in the will * * * he wanted now to change his will. Upon being informed that Mrs. Moon’s share would go to her son, he said he knew that, and that was what he did not want; that the young man had more money now than he could properly take care of and he would now get more; that his grandchildren had more money than his children, and he Avanted his property diArided among his two sons, Wallace and Charles, and his daughter, Mary Parsons.
    “In response to questions, he informed Mr. Katzenbaeh that his property consisted ‘mostly of money and mortgages.’ He told him -the amount he had in cash and where it Avas deposited, and when asked how much he had in mortgages he replied that it was not necessaiy for the lawyer to know that in order to draw his will, and Mr. Katzenbaeh then stopped asking questions.
    “He said he Avanted as, executors his son Wallace, Owen Moon, Sr., and his daughter, Mary Parsons. Mr. Katzenbaeh called his attention to the fact that he was ignoring his grandson, OAven Moon, Jr., and asked why he Avanted the father as executor; his reply was that he was one of the executors of the other will, that OAAren had asked him, and if he didn’t make him an executor ‘he would kick up his heels and make a fuss.’ He also said that Owen Moon, Sr., had .been attending to his business. He then asked Mr. Katzenbaeh to call his son Wallace Buckman, and when he appeared, he directed him to deliver to Mr. Katzenbaeh the old will. He said he wanted the will like his old one, except he Avanted his property divided equally among his three children. Mr. Katzenbaeh called the next day for the purpose of having the will signed. When he read the clause containing the bequests to the grandchildren the old gentleman stopped him, said that it Avas wrong, that he didn’t Avant to leave anything to his grandchildren. The balance of the will was read and the testator said it was satisfactory except that he didn’t want to leave anything to his grandchildren.
    “The will was redrawn and about an hour afterwards Mr. Katzenbach was again at the house, and before the will was produced the testator conversed with Mr. Katzenbach and referred to a case he had had against Mm which cost him [the testator] about $1,000. The will was again read to him and Mr. Katzenbach testified that
    “ ‘after this will had been read to Mr. Buckman by myself, I told him that it would be necessary for him to execute the same in the presence of two witnesses, who must be present at the same time and subscribe their names in the presence of the testator and see him sign his name. Mr. Buckman then said he would have to have his hand held, as it was unsteady. Pen and ink were then called for, and Mr. Buckman, who was sitting in the chair by the desk, raised partially and his chair was moved over to the desk; a pen was placed in his hand and he asked me to start him a good ways over on the paper, which I did. He then wrote the letter “S,” pronouncing the letter “S,” then “p,” pronouncing the letter “p,” then “e,” pronouncing the letter “e,” and so on with each one of the letters in his signature. After that signature had been completed, I then asked Mr. Buckman if he signed, sealed and published and declared that to be bis last will and testament, in the presence of Mr. Geraghty and myself, and asked Mr. Geraghty and myself, in his presence, and in the presence of each other, to subscribe our names thereto, as witnesses. He said, “I do.” Thereupon Mr. Geraghty signed his name, and after he had completed liis signature I took the pen and signed my name, and he told me to keep it, and I said, “Good afternoon,” and Mr. Geraghty and ¿ I. walked out.’
    “This testimony, which is corroborated by Mr.' Geraghty, standing by itself would seem to establish quite satisfactorily the testator’s competency at the time of the execution. There was nothing in what he said at anjr of these interviews which indicated any failure of mind, memory or understanding, and what he said was sensible and appropriate to the occasion. His manner was direct and positive. That he heard and understood tire will as it was read to him is apparent from the fact that he instantly detected an error which had been made in the dxait. Evidence of previous weakness and inability, if credited, is 'admissible and important. But if evidence of capacity during the period while the business was in hand is convincing and sufficient, the evideuce of previous incapacity has no weight. Armstrong v. Armstrong, 69 N. J. Eq. (3 Robb.) 817, 820.

    “The paper under consideration divides his property among his living children, and, so far as the disposition of his estate is con- „ cerned, is practically in harmony with the will made by the testator in 1892, except in that will he left small legacies of two children of a deceased daughter. In the will of 1909 he omitted ail reference to his grandchildren. There was some reason for this. The children and grandchildren were all beneficiaries under the will of Isaiah Williamson, of Philadelphia; the generation to which the grandchildren belonged had received about $175,000 each, while the generation to which the children of Spencer W. Buckman belonged had each received a life interest in $60,000, which, at death, was to be divided among their children. Isaiah Williamson died in 1888 or 1889; the first will of Spencer W. Buckman was made on June 2d, 1892, the second one January 22d, 1909, and both papers seem to have been made with a view of dividing his estate among his children and ignoring'his grandchildren. In view of the disposition made of the Williamson estate this was perfectly natural; the testator in both instruments showed a preference for his children, who were nearer to him, and had received considerable less money from the Williamson, estate.
    “The fact that the will is in itself natural and reasonable is a . fact corroborative of the correctness of the opinions of the subscribing witnesses that the testator possessed testamentary capacity at the time of the execution of the will. Clifton v. Clifton, 47 N. J. Eq. (2 Dick.) 227.

    “The other contention raised by the caveators is that the alleged will was the result of undue influence exerted upon the testator by the proponents, Mary Parsons and Wallace Buckman. From 1900 down to June, 1908, the testator resided with his daughter, Mrs. Moon, at which time, because of the daughter’s health, the family went to the seashore, and the testator,was brought to Mrs. Parson’s house. He returned to Mrs. Moon’s house in October, and remained there until December 30th, when, on account of the serious illness of Mrs. Moon, he was again brought to Mrs. Parson’s house, and continued to live there until he died, April 25th, 1909. The change on both occasions was made at the suggestion of the Moons. There is no evidence that he contemplated making any change in his will during the lifetime of Mrs. Moon. The first intimation of such intention was given by the testator himself, who, shortly after Mrs. Moon’s death, said to Mrs. Parsons, T am sorry Lib’s gone, and T will have to make some change in my affairs,’ and he added, T would like you to get a lawyer.’
    “On the day of Mrs. Moon’s funeral, January 21st, 1909, Mrs. Parsons consulted with Mr. and Mrs. Tyson, her daughter and son-in-law, concerning- the request of her father, and Mr. Tyson suggested M.r. E. S. Katzenbaeh, wh.o accordingly was sent for. Counsel for the caveators admit that there is absolutely no direct testimonj' in the case to show any undue influence, but claim that the circumstances surrounding the execution of the will, in connection with the testator’s mental condition, proved that the will was not the product of the free will of the testator. I have carefully considered the testimony and cannot agree with this view. I am satisfied that the testator had sufficient testamentary capacity to make a will, and there is nothing in the testimony which would tend to show that he had not the freest opportunity to malee up his mind as to the disposition of his property. His general purpose, according to his own statements to Mr. Katzenbach, was to divide his property equally among his living children. This was not a newly-conceived purpose, nor does the testimony show that it was prompted by the suggestions, or influence of others. The same purpose is shown by the will of 1892. Evidently, he had- this purpose in mind through all these years, and when by the death of Mrs. Moon the conditions were changed, he realized that if he desired to adhere to the testamentary disposition made by the will of 1892, a change would be necessary, and he said to Mrs. Parsons, T am sorry Lib’s gone and I will have to make some change in my affairs. * * * I would like you to get a lawyer.’ Stress is laid upon the fact that at this time he turned to Mrs. Parsons for aid and asked her to get a. lawyer. There wras-nothing unnatural about this. She ■was his only living daughter. He was living at her house, and he had a perfect right, as incident to the right of testamentary disposition, when he desired to pnt his testamentary wishes in legal form, to the aid of any person he thought proper to select.
    “The influence which is said by law to be undue, and therefore to vitiate a will, must amount to moral or physical coercion which destroys free agency and constrains its subject to do that, which, but for it, he would not have done. The testimony does not show any such influence. His manner in giving directions for the drafting of his will, and the occurrences at and immediately surrounding its execution, would indicate that the testator was able to, and did, exercise his judgment and will freely, without any undue influence, and after a careful examination of the whole case, my conclusion is that the paper offered is the last will and testament of Spencer W. Buckman, and should be admitted to probate.”

      Mr. Malcolm G. Buchanan and Mr. John H. Baches, for the appellant.

      Mr. Edward L. ICatzenbach and Mr. Frank S. Katzenbach, Jr., for the respondents.
   Pee Curiam.

The decree of the prerogative court will be affirmed, for the reasons stated in the foregoing opinion delivered in the orphans court.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhbes, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Treacy—13.

For reversal—Hone.


source: Caselaw Access Project

author: Pee Cueiam. Per Curiam.

license: Public Domain

text:
    In re Walsh's Estate.
    [Argued June 30th, 1909.
    Decided November 15th, 1909.]
    On appeal from the prerogative court. From a decree of the prerogative court, affirming a decree of the orphans court, sustaining exceptions to the final accounting of Ida E. Wagner, executrix, she appeals.

      Mr. Joseph Kcdghn and Messrs. French ■&-Richards, for the appellant.

      Mr. Frederick A. Rex and Messrs. Grey & Archer, for the respondents.
   Pee Cueiam.

The appeal in this case is from a decree of the prerogative court affirming a decree of the orphans court of Camden county sustaining exceptions filed to the final account of Ida E. Wagner, executrix of the estate of Elizabeth Walsh, deceased, by legatees under the will of the decedent. The prerogative court affirmed the decree of the orphans court upon the opinion delivered in that court by Joline, judge, which was as follows:

“The matters in controversy are contained in exceptions to the allowance of five items in the final account of Ida E. Wagner, executrix of the estate of Elizabeth Walsh, deceased. Elizabeth Walsh, who was the mother of the executrix, died upon the 25th day of December, 1904, having first made her last will and testament, dated February 25th, 1904, in and by which she left her personal property to her children, Ida E. Wagner, Clara J. Chadwick, Ellen M. Fennimore, Emma L. Deegan, and to a grandchild, Dora Meister. This will was admitted to probate on the 13th day of January, 1905, by "the surrogate of the county of Camden, and letters testamentary were granted to said Ida E. Wagner and Clara J. Chadwick, who were named as executrices.

“At the time of her death, the testatrix was living with her daughter Ida E. Wagner, and the latter had possession of the will. Shortly after her mother’s death she denied to Clara J. Chadwick, her sister and co-executrix, that there was a will or any money; but she subsequently admitted the existence of the> will, and, as heretofore stated, it was probated. She still denied that there was any estate.. Clara J. Chadwick thereupon instituted a suit against Ida E. Wagner in the court of chancery of this state for the purpose of setting aside certain assignments of mortgages, securities and property made by the testatrix to said Ida E. Wagner. By reason of promises, designed, I am satisfied, for ulterior purposes, made by the latter to the com}Dlainant, said suit was not prosecuted. Thereupon Ellen M. Eennimore and Emma L. Deegan, two of the legatees named in Mrs. Walsh’s will, filed a bill in the court of chancery against the above-named executrices. It set out the death of Mrs. Walsh, the execution and probate of her will, and the issuance of the letters thereon. It then alleged: That the testatrix was, at the tinie of her death, owner of certain securities, moneys and furniture, the same as those set out in the final account in this proceeding; that because of advanced a.g'e, of feeble health, and weakened mental condition, and with slight expectation of life, she was induced by said Ida E. Wagner to go and live with her; and that the daughter, having secured the custody and physical control of the testatrix, who was wholly incapable of resisting the persuasions and entreaties of said daughter, the latter was fraudulently induced and unduly influenced, on or about the 1st day of April, 1904, to assign and transfer unto said daughter Ida E. Wagner, without any consideration, all of the above-specified personal property. It further alleged that said daughter had reduced ceriain of the securities to cash, and that she refused to account for any of them.

“The prayer of the bill was that these assignments should he set aside, and that they, together with the rest of said personal property, be declared to be the property of and a part of the estate of the said testatrix at the time of her death, to be duly accounted for and administered. A decree pro confesso was taken against Clara J. Chadwick; but Ida E. Wagner filed a plea which alleged that for the assignment and transfer of all of said bonds and mortgages, shares of stock and other personal property in the bill mentioned, good and valuable consideration passed from the said defendant to the said Elizabeth Walsh. Issue was joined and the cause went to a hearing. It will be observed that the sole question at issue was the legality of the consideration, and that it related to all of the property named in the bill of complaint; it -being the same property as that named in the final account in this proceeding. An examination ,of the testimony of Mr. Iiaighn, in the chancery suit, discloses that fact that the testatrix wanted to assign this property to Mrs. Wagner, because she had a good home there, and that she intended to stay there the rest of her days, and that she wanted to turn those over to Mrs. Wagner on that account. Henry Wagner, the husband of Ida, attempted to show that the testatrix continued to live and be cared for by Mrs. Wagner until the time of her death; but his testimony seems to have made no impression other than that it hvas plainly introduced to bolster up a pretended consideration.’ Those were the only witnesses, and the vice-chancellor who heard the- case held that the defendant had failed to sustain her plea, and that a decree would be advised setting aside the assignments and transfers of the property described in the bill of complaint, and the same decree to be held by the defendants as part of the estate of the testatrix to be administered by them as executrices. He intimated that, but for the fact that one party to the fund was not a party in the chanceiy proceedings, the accounting would have been required to be made in that court. Fennimore v. Wagner, 78 N. J. Fq. (8 Buch.) 867. The final decree, although holding that the complainants were entitled to the relief sought and prayed for by them in their bill of complaint, does not specifically mention the sum of $1,000. It'is, however, apparent that it was a part of the subject-matter in controversy, for it is named in the bill, and the plea distinctly includes it in the words fand other personal property in the bill mentioned.’ The pleas, therefore, admit the possession of, and claim the ownership of, all of the bonds, mortgages, shares of stock and other personal property in tire bill mentioned, and thd right of Ida E. Wagner thereto was the single question in issue.l On appeal the decree of the court of chancery was affirmed, and Chief-Justice Gummere, who wrote the opinion, said that: ‘We concur in the view expressed in the opinion of the vice-chancellor that the proofs therein specified do not sustain the plea.’ Fennirnore v. Wagner, supra. Eor technical reasons an attempt was made to reverse the decree; but they were held of no avail because of the failure to prove the entire plea.

“Ida E. Wagner, in her account, the said Clara J. Chadwick having been discharged as an executrix, charges herself with the proceeds of the sale of three of said mortgages, with the principal and interest of three others, with the amount realized from the sale of the stock of the Camden Eire Insurance Company, with household furniture valued at $200, alleged to be in her possession, and with cash amounting to $1,000, alleged to be in her possession. She prays allowance for said household furni- */ ture, claiming that she had never received it; for said cash, claiming that she had no knowledge of it; for part of the proceeds from the sale of mortgages advanced and paid by her to the testatrix, amounting to $816.80. This is the Abigail E. Hugg mortgage with which she had charged herself. She further prays allowance for claim of Ida E. Wagner for furnishing said testatrix with a home the rest of her days according to contract, $6,920, with interest from May 4th, 1904, to December 13th, 1907, $806.18—total, $7,726.18. The other allowances prayed for are the amount paid for premium on executrix’s bond for proctor’s fee and for commissions. The amount with which the accountant charges herself is $8,884.70, while the amount for which she prays allowance, exclusive of proctor’s fees, is $10,-166.44, thus leaving a deficit in the sum of $1,281.74.

“To all of the items for which allowance is prayed, except that for the household furniture, that for surrogate’s bill, and that for proctor’s fees, exceptions were filed by Ellen M. Eennimore and the administrator of Emma L. Deegan, deceased; said Ellen M. Eennimore and Emma L. Deegan in her lifetime being the complainants in the suit in chancery hereinbefore referred to. When the account first came on for hearing, objection was made to the introduction of any testimony upon the first three items excepted to for .the reason that they were part of the subject-matter controverted in the chancery suit, and therefore res adjudicata. It was agreed, however, that the evidence should be heard and the matter disposed of upon final hearing. The doctrine of res adjudicata has been clearly defined in this state, and it is the law That the judgment of a court of competent jurisdiction on a question of law or fact, or on a question of mixed law and fact, once litigated and determined, is, so long as it remains unreversed, conclusive upon the parties and their privies, not only as to the particular property involved in the suit in which it is pronounced, but as to all future litigation between the same parties or their privies, touching the subject-matter, though the property involved in the subsequent litigation is different from that which was involved in the first.’ CA11 that is required in cases where the prior and subsequent litigations involve different things, to render the judgment in the first conclusive upon the parties in the subsequent, is that there shall be substantial identity in the subject-matter of the two, and that must always be the case, as is obvious where the judgment in the first' rests on a decision of the same question substantially which is presented for decision by the subsequent.’ City of Paterson v. Baker, 51 N. J. Eq. (6 Dick.) 57. All that is necessary is that the right to relief in the one suit shall rest upon the same point or question which, in essence and substance, was litigated and determined in the first suit, and in such a case the parties and those in privity with them are concluded, ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ Ibid., 51 N. J. Eq. (6 Dick.) 53; Cromwell v. Sac County, 94 U. S. 351, 352; 24 L. Ed. 195.

“Where the second action is upon a different claim or demand, but between the same parties, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. City of Paterson v. Baker, 51 N. J. Eq. (6 Dick.) 54. See, also, Mershon v. Williams, 63 N. J. Law (34 Vr.) 401; Clark Thread Co. v. William Clark Co., 55 N. J. Eq. (10 Dick.) 662; Mercer County Traction Co. v. U. R. R. & Co., 64 N. J. Eq. (19 Dick.) 594. The judgment is final be tween, the parties as to all defences which were or could have been set up in the earlier suit. Thompson v. Williamson, 67 N. J. Eq. (1 Robb.) 212, 214. It is not necessary that the action in which the judgment is found, and that in which it is relied on as an estoppel, should be of the same kind, or for the same cause of action.’ Sawyer v. Woodbury, 7 Gray (Mass.) 502; 56 Am. Dec. 518; City of Paterson v. Baker, 51 N. J. Eq. (6 Dick.) 54. The doctrine is not a mere rule of procedure, but a rule of'justice unlimited in its operation, which must be enforced whenever its enforcement is necessary'for the protection and security of rights and for the preservation of .the repose of society. City of Paterson v. Baker, 51 N. J. Eq. (6 Dick.) 59; Putnam v. Clark, 34 N. J. Eq. (7 Stew.) 540. It is a rule] of law based upon two grounds: The ilr&t, that there should be an end to litigation, and the second, that a person should not be twice vexed for the same cause. 24 Am. & Eng. Encycl. L. (2d ed.) 713, 714, and cases cited.

“Referring now to the exceptions, it will be seen that the first is to" the prayer for allowance of $1,000, and that the second is to the prayer for allowance of the proceeds of a mortgage claimed to have been advanced to the deceased, amounting to $816.80. This is the Abigail F. Hugg mortgage, with the proceeds of the sale of which the accountant charges herself.' The conclusion which I have reached with regard to these items is that they are res adjudícala. An examination of the record in the chancery suit will show that each was included in the bill of complaint, and that the plea makes no exception, but alleges that all of the said bonds, mortgages, shares of stock and other personal property, in the bill of complaint mentioned, passed to the said Ida E. Wagner for a good and valuable consideration. The decision of the court was unquestionably adverse to this contention and necessarily included everything named in the plea. The defendant adopted a certain procedure, the legal effect whereof was an admission that she had in possession as owner certain things, including these two items excepted to, and the court rendered a decision, the legal effect whereof was that she did not own said mortgage, and said money of which she admitted that she had possession, and that she should turn them over to the estate of the testatrix. If they had not been in her possession, 'would she have adopted a procedure which admitted possession? After having alleged in the chancery suit that she had them in. possession, and having submitted the ownership thereof to the decision of that court, she should not now be allowed to play fast and loose with courts, and with the administration of justice, and be permitted to deny that which she admitted in the previous suit. Otherwise, we would strike at the basic principle of the doctrine of res adjudicata, would justify trifling with legal procedure and with the stability of legal decisions. Lord Eoseclale once said that it was more important that an end should be put to litigation than that justice should be done in every case. Beteman v. Willoe, 1 Sch. & L. 201; Dunham v. Downer, 31 Vt. 250, 256; Schumann v. Weatherhead, 1 East 537; Claggett v. Simes, 25 N. H. 402.

“The third exception is to the item wherein the accountant claims compensation for furnishing Elizabeth Walsh with a home for the rest of her days according to contract. The amount claimed is $6,920, with interest from May 4th, 1904, to December 13th, 1907, amounting to $806.18, making a total of $7,726.18. The amount claimed, less the interest, is the aggregate amount of the mortgages and of the Camden fire insurance stock set out in the bill of complaint. In this claim there is included the Abigail E. Hugg mortgage, which is the subject of the second exception, and with which the accountant charges herself, and for which she claims allowance twice, once in the third item of her prayer for allowance, and once as a part of the fourth item.

“In the chancery suit the defendant claimed each of said mortgages and said stock upon an assignment made by the decedent based upon a good and valuable consideration; the same being substantially an agreement to keep her mother during the rest of her days. She offered very little evidence in support of the alleged consideration, and the determination of the court was as follows: "'On this evidence I find that the defendant has not supported her, plea that this $8,000 of property was transferred to her by the testatrix for a good and valuable consideration.’ Proof of the assignment of three of the mortgages only was offered. On appeal the defendant based her contention for a reversal upon legal grounds which were not tenable because of her failure to prove her entire plea. She had the right and the opportunity to prove it, and could have produced all of the witnesses offered in this matter, but did not even attempt to. The decision of the court is against her upon the entire plea, and the rule that a judgment is final between the parties as to all defences which were or could have been set up in the earlier suit, provided the later suit involves substantially the same matters between the same parties. The contention of the accountant (the defendant in the chancery suit) is that her present claim is different from that in the chancery suit, and that in the latter she claimed the assignment of certain property because of an agreement upon which the assignment was founded, while she now claims, not this property, but the value thereof, because of the consummation of said agreement, and that it must be enforced, even though it be unconscionable. Each is founded upon the same contract, namely, the agreement to care for and keep the decedent the rest of her daj’s. The voucher for this prayer of allowance has attached to it an affidavit made by Mrs. Wagner to the effect that her mother came to live at her [Mrs. Wagner’s] home in the month of February, 1904, and that shortly after that she offered and promised to give her six mortgages of the value of $6,200, and some stock of the Camden Fire Insurance Association of the value of $720, if sire would furnish her with a home for the rest of her days; that, not knowing whether her life would be long or short,- she consented and agreed to this, and did accordingly furnish her with a home for the rest of her days, for which the sum1 of $6,920, - with interest thereon from the 5th day of May, 1904, amounting to $806.18, is justly due and owing to her from the estate of said decedent.

“It will be seen that the foundation for this claim is the same as that in the chancery suit for the assignment of the mortgages and other property, namely, the agreement to care for the mother. It was decided that it did not furnish a good consideration therefor, and I think that that decision is res adjudicada, as to the present proceeding, where, upon the same agreement, tire defendr ants in the preceding suit claim, not the mortgages and other property, but the proceeds thereof. The present claim is not based upon the quantum meruit for services rendered. The subject-matter in the two suits is substantially the same; in the one certain personal property, and in the other the proceeds thereof. The main question in each is the same. The alleged agreement and the contending parties are the same; the only difference being that since the ending of the chancery suit one of the complainants has died, and in this proceeding she is represented by her administrator.

“The fourth exception is the claim of the accountant for the premium of $52 paid for her bond. It is true that she was ordered by the court to give a bond; the alternative being her discharge as executrix. I think that she should be allowed this charge. The security was demanded by the very parties who now except to the expense occasioned by their actions, and, if the executrix had failed to furnish the bond and had been discharged, the substituted administrator would have been obliged to furnish one, incurring in all probability the same expense. On the allowance side of the account there is a space left for proctor’s fees. A fair allowance should be made for services rendered to the accountant by her proctor; but it cannot include any allowance for services rendered in the chancery suit, or in this procedure in support of the items for which Ida E. Wagner advances a claim. With respect to said suit and to those items, she personally must compensate her counsel. I will hear counsel as to a proper allowance.

“The fifth exception is to the claim for commissions. Eull commissions are claimed even on the sum of $200 for household furniture, for which allowance is prayed and not excepted to. The rule is that allowance shall be made with reference to the actual pains, trouble and risk in settling the estate rather than in respect to tire quantum of estate> and that it shall not exceed certain rates. P. L. 1898 p. 782 §§ 108, 129. There was slight trouble and no risk incident to the settlement of this estate. The moneys were well invested, and there seem to have been no debts. The entire duty of the executrix consisted in keeping the estate intact, in collecting the income, in attending to the few matters required by law to be done, such as probating the will, .making and filing an inventory and appraisement, taking the necessary rules to bar creditors, filing a final account and distributing the balance in her hands.

“It cannot be said that the conduct of the executrix, Ida E. Wagner, exhibited sincerity and candor. After her mother’s death she denied that there was a will or any estate. She later admitted that there was a will, but denied that there was any estate. When a suit was commenced by Mrs. Chadwick, in chancery, to have the property in her custody declared the property of the estate, she induced her in some way not to prosecute it, and it was onliy after being cited to do so that she filed the final account now under consideration. She knew that her right to the property left by her mother, was disputed by the heirs, and, even after she induced Mrs. Chadwick not to proceed against her, she knew when the bill was filed by Ellen M. Fennimore and Emma L. Deegan on November 10th, 1905, that such dispute still existed. Knowing this, and knowing that the case might be decided against her, it was her duty to conserve the estate, and if she disposed of any portion of it to invest the mone]^. Instead of doing this, she charges herself only with the amount realized from the sale of certain of the securities, as follows: Hugg mortgage of $800, $816.80; Baxter mortgage of $1,200, $1,242.23; Baxter mortgage of $700, $733.36; Camden Eire Insurance Company stock (seventy-two shares), $720.

“'The mother died on December 25th, 1904. It was not proved when the Chadwick suit was commenced; but the Fennimore suit was commenced in November, 1905, and the file in this court shows that steps were taken prior to that to bring Mrs. Wagner to account. She knew, therefore, that her light to this property was seriously disputed, and she should have-treated the entire property, both principal and interest, as possibly belonging to the estate of her mother, and as such it was her duty to keep it invested. She appears not to have done this with regard to the above items. They aggregate $3,420. They had been, and probably were, invested, and, at five per cent, per annum, the income would have been about $171 a year, and for two years alone, $342, nearly the amount of the commission. The executrix charges herself on these sums above the principal with only $92.39, for I assume that, as there were seventy-two shares of the stock of the insurance company, and it sold for $720, the price per share was $10, and that no part of the $720 represents in7 terest. As a fact, the executrix had this property from the time of her mother’s death, and the income, amounted to.far more than her commissions. She took the risk of selling it pending the disputes as to her ownership, and is chargeable with the result. It is true that no exception has been filed asking that she be surcharged with this interest; but I think it should be considered in determining her right to commissions, and in doing so, I have reached the conclusion that commissions should not be allowed. Commissions are allowed as compensation for the faithful discharge of duty, and I fail to see how an executrix, who, pending a dispute which may be. decided adversely to her, not only disposes of securities, but allows funds to lie idle, has done her duty. The estate is a loser by reason of her management. Frey v. Demarest, 17 N. J. Eq. (2 C. E. Gr.) 71; McKnight v. Walsh, 23 N. J. Eq. (8 C. E. Gr.) 136; Ibid., 24 N. J. Eq. (9 C. E. Gr.) 498; Hetfield v. Debaud, 54 N. J. Eq. (9 Dick.) 371; Fluck v. Lake, 54 N. J. Eq. (9 Dick.) 644; Blauvelt v. Ackerman, 23 N. J. Eq. (8 C. E. Gr.) 495; Ackerman v. Blauvell, 25 N. J. Eq. (10 G. E. Gr.) 570; In re Booth’s Estate, 26 N. J. L. J. 76.

“The conclusion reached is that the first, second, third and fifth exceptions should be sustained, and that the fourth exception should be dismissed. This determination having been reached upon the application of the above principles of law, it is unnecessary that the evidence adduced should be further considered.”

Per Curiam.

We concur in the view of the prerogative court that the decree of the orphans court was properly made, and are satisfied to rest our conclusion upon the very satisfactory opinion of Judge Joline.

The decree under review will be affirmed.

For affirmance—The Chief-Justice, Garrisoh, Swayze, Eeed, Parker, Bergeh, Voori-iees, Mihturh, Bogert, Vre-DENBURGH, YROOM, GRAY, DILL, COHGDOH—14:

For reversal—Hone.


author: Walker, Ciiakoellor.

text:
    The Trenton Trust and Safe Deposit Company et al. v. Fitzgibbon & Crisp Carriage and Wagon Company.
    [Decided October 18th, 1912.]
    1. The time of sale mentioned in the amendment to the act relative to the sale of lands, approved March 19th, 1912 (P. L. 1912 p. 131), is referable to a day, that is, the day of sale; therefore, it is as though the act read “the last publication (of the notice of sale) to be not more than seven clays prior to the day appointed for selling,” &e.

      2. Under the amendment to the act relative to the sale of lands, approved March 19th, 1912 (P. L. 1912 p. 131), the last advertisement of a sale of real estate must be made in two newspapers published and circulated not later than the calendar day nest preceding the time (day) appointed for selling the same ; and a sale made on the day of the last publication of the notice is invalid and will be set aside, if that publication has to be relied upon as one of the advertisements required by law. Early v. Doe, 16 Ilow. {V. S.) 610j H, L. Eel. 1019, distinguished.
    On application for confirmation of' sale.

      Mr. Charles E. Gurnmere and Mr. W. Holt Apgar, for the aplication.

      Messrs. Wilson & Carr, contra.

   Walker, Ciiakoellor.

The receiver of the defendant, an insolvent corporation, reports the sale of lands and premises (including personal property), subject to certain liens, and his counsel moving for the confirmation of the sale, is opposed by counsel for a stockholder and creditor.

The question pressing for solution is this: May a sale of real estate be validly made under the amendment to the act relative to the sale of lands, approved March 19th, 1912 (P. L. 1912 p. 181), by publishing the last notice of sale in newspapers published and circulated on the day the sale takes place?

Sales of land were formerly conducted under the act of June 14th, 1898. Comp. Stat. p. 4667 § 1. So much of that act as is pertinent to the present 'inquiry directed publication to be made “at least four weeks successively, once a week, next preceding the timé appointed for selling the same,” and it was held in Parsons v. Lanning, 27 N. J. Eq. (12 C. E. Gr.) 70, to require four whole weeks between the first insertion in the newspaper and the day fixed for sale. The only bearing that case has upon the one in hand, as T view it, is to establish the fact that “weeks” are the periodical units which must be observed in the matter of advertising — that is, that the advertisement must be made four whole weeks next preceding the day appoiirted- for the sale, and that the day of sale may not be within the last week. This case was followed in the supreme .court in State v. Elizabeth, 41 N. J. Law (12 Vr.) 517.

The present statute {P. L. 1912 p. 1S1) provides that the advertisement of sale shall be published four times in two newspapers at least once a week, during four consecutive calendar weeks, "the last publication to be not more than seven days prior to the time appointed for selling the same.”

Here, it must be observed, "days” are the periodical units of time within which the last advertisement is to be inserted. That is to say, it may be inserted one day prior to the time appointed for sale, or two days, &c. ■ It is as though the act read "the last publication to be not more than one, two, three, four, five, six or seven days prior to the time appointed for selling the same.” How, the time appointed for selling must be “between the hours of twelve and five in the afternoon,” as provided in the act. If, therefore, a sale be advertised to take place

“on Friday the twenty-third day oí August, A. D. one thousand nine hundred and twelve, between the hours of twelve and five o’clock in the afternoon of said day, that is to say, two o’clock P. M.,”

as in the case at bar, the statutory direction that the labt publication shall not be more than seven days prior to the time appointed for selling, is not complied with by publication on the day of sale, even though published in newspapers which are circulated at seven o’clock in the morning of that day, which was done in this case, as is made to appear by the proofs submitted on this motion.

The time of sale is necessarily referable to a day — that is, the 'day of sale: therefore, it is as though the act-read "the last publication to be not more than seven daj^s prior to the day appointed for selling,” ’&c.

In Tappan v. Dayton, 51 N. J. Eq. (6 Dick.) 260, the confirmation of a sale of lands br^ the Middlesex county orphans court was set aside because the last publication of the notice of sale was made more than one week prior to the time appointed for the sale; the statute then in force requiring the notice of sale to be published at least'four weeks successively, once a week, next preceding the time appointed for selling. In that case Chancellor McGill, sitting as ordinary (at ¶. 265), said:

“The failure to publish the notice between February 2d and February 10th, a period of eight days immediately preceding the time appointed for the sale, shows an inexcusable non-compliance with the statute, in that for more than a week next preceding the time appointed for the sale, notice of it was not published in that paper. The purpose of the requirement that the publication should fit closely upon the sale is obviously to keep freshly in the public mind the pendency of the sale, aud the mischief of the omission to publish within the last week may be twofold, in permitting the sale to be lost sight of and, possibly, in impressing intending purchasers with the belief that it -has been abandoned. However this may be, the courts hold that strict compliance with the requirements of the statute is essential to the validity .of the sale.”

The sale in this case must be set aside because the last publication of the notice of sale was made less than one day prior to the time appointed for the sale.

While-the policy of the law doubtless is that the publication should fit closely upon the sale, it should, nevertheless,’ not fit too closely, for, while an omission to publish within the last week may permit the sale to be lost sight of, or may impress intending purchasers with the belief that it has been abandoned, on the other hand, if the last advertisement, which may be the only one seen by the intending purchaser, who would be a bidder at the sale, if seen by him only in the morning paper at his breakfast table, may come too late to permit him to arrange to be a bidder at the sale to take place but a few hours afterwards. Such short notice would hardly afford anyone time to inspect the property, examine the title and make his financial arrangements to become a purchaser. Each publication must be intended by the legislature to have potency, and if it were intended that the last publication could be made on the day of sale the act would doubtless have said so in words that could not have been misunderstood. Such a radical departure as is here contended for should not be made on any doubtful construction of the statute.

If my interpretation of the act be correct, then all sales advertised as late as the calendar day preceding the sale will be safely made; but if I held that the last publication might be made on the day of sale, then the legality of sales would be in doubt, unless and until the court of errors and appeals upheld that view. If the publication may be made upon the day of sale, it may be made, I presume, at any time before the sale takes place, say one hour, or a less period.

Before the passage of the act of March 19th, 1912, it had become the settled policy of the state, in the matter of advertising these judicial sales, to have the last advertisement appear some time during one week next preceding the time appointed for the sale, and, when the legislature of 1912 passed the amendment referred to, it is presumed that the legislators had in mind that fact; and, further, I think, when they provided that the last publication should be not more than'seven days prior to the sale, they meant it should be not more than one week prior to the sale, for they named one week, in other words, and said the publication should be prior to the sale.

The case of Early v. Doe, 16 How. (U. S.) 610; 14. L.Ed. 1079, is relied on by counsel for the receiver as an authorit3r for publishing the last notice of a sale under the statute on the day of sale; but, as I read the opinion, it is rather an authority for the objector. In that ease the "United States supreme court (at p. 616) said:

“The language of the statute regulating the notice to be given, is in these words: ‘That public notice of the time and place of the sale of all real property for taxes due the corporation of the city of Washington, shall be .given hereafter, by advertisement, inserted in some newspaper published in said cit3r, once in each week, for at least twelve successive weeks/ Now, the first week following the date of the advertisement expired with the next Friday, the 10th of November, and if the computation is carried out, it will bo found that the twelfth week expired on the 17th of November. But the sale was made two days before, on the loth of November, the last insertion of the notice being on the clay of sale.

“So there were eleven insertions of the notice in the newspapers in different weeks (making, with the first, twelve) after the expiration of the week from the first insertion, and thd point to be settled is, whether the statute means that twelve insertions in successive weeks is sufficient notice, without respect to the number of days in twelve weeks. We clo not doubt if the statute had been Anee in each week for twelve successive weeks/ a previous notice of the particular day of sale having been given to the owner of the property, that it might very well be concluded, that twelve notices in different successive weeks, though the last insertion of the notice for sale was on the day of sale, was sufficient. But when the legislature has used the words, for at least twelve successive weeks, we cannot doubt that the words, at least, as they would clo in common parlance, mean a duration of the'time that there is in twelve successive weeks, or eighty-four days. Every statute must" be construed from the words in it, and that construction is to be preferred which gives to all- of them an operative meaning. Our construction of the statute under review gives to every word its meaning. The other leaves out of consideration the words Tor at least/ which means a space of time comprehended within twelve successive weeks, or eighty-four days. The preposition for, means of itself duration when it is put in connection with time, and as all of us use it in that way, in our every-day conversation, it cannot be presumed that the legislature, in making this statute, did not mean to use it in the same way. Twelve successive weeks is as definite a designation of time, according to our division of it, as can be made. When we say that anything may be done in twelve weeks, or that it shall not be done for twelve weeks, after the happening of a fact which is to precede it, we mean that it may be done in twelve weeks, or eighty-four cUrps, or as the case may be: that it shall not be done before. The notice for sale, in this instance, was the fact which was to precede the time for sale, and that is neither qualified nor in any way lessened bjr the words Anee a week/ which precede in this statute those which follow them, Tor at least twelve weeks.'" ' •

“The construction of the statute will be recognized to be in harmony with that policy of the law which experience has established to protect the ownership of property from divestiture by statutory sales, where there has not been a substantial compliance with the law by which a public officer is empowered to sell it.

“Property is liable to be sold on account of an undischarged obligation of the owner of it to the public or to his creditors. But it can only be done in either case where there has been ;a substantial compliance with the prerequisites of the sale, as those are fixed by law. Any assumption by the officer appointed to make the sale, or disregard of them, the law discountenances. He may not do anything of himself, and must do all as he is directed by the law under which he acts. . He may not, by any misconstruction of it, anticipate the time for sale within which the owner of the property may prevent a sale of it. by paying the demand against him, and tire expenses which may have been incurred from his not having done so before. This the law always presumes that the owner may do until the sale has-been made. He may arrest the uplifted hammer of the auctioneer when the cry for sale is made, if it be done before a bona fide bid has been made. * * *

“There is a difference, it is true, in the strictness required in a tax sale, and that of a sale made -under judgment and execution ; but, in both, the same rule applies as to the full notice of time which the law requires to be given for the sale.”

• I will now point out wherein I think Early v. Doe is not an authority for the receiver but for the objector. In that ease it was said that if the statute had read “once in each week fox twelve successive weeks,” it might very well be concluded that twelve notices in different successive -weeks, if the last insertion were on the day of sale, would be sufficient. Observe, now, that the statute was not so written and the language of the opinion is only that the publication might have lawfully been made on the clay of sale if the statute rvas written-as presupposed. That such observation of the judge who -wrote the opinion in Early v. Doe has, by force of that case, no application to the one under consideration, appears further on in the judge’s assertion that every statute must be construed by the words in it, and that that construction is to be preferred which gives to all of them an operative meaning, and that the court’s construction of the statute there under review gave to every word its meaning; that the construction contended for left out of consideration the words “for at least.”

Now, by the application of these rules I must ascribe a meaning to the words “days prior” — that is, days prior to the sale, . found in our statute, and it may be one day, because day is the unit of time mentioned in and contemplated by the statute, properly written in the plural, days.

If I adopted the construction contended for on behalf of the receiver, I would have to excise from the statute the words “days,” because, If the last publication of notice of sale should be made on the day of sale, then it would be some hours, but not days, or even a day prior to the sale. As already seen, the last advertisement, as I view it, may be on some day (not more than seven) before the sale, but cannot be an hour or any number of hours before the sale on the day of the sale. This, in my judgment, is the only way in which the words “prior” and “days” (which latter includes “day”) may be read together and given the full force 'and effect which the legislature intended should be given to them. '

I am constrained to the conclusion that the sale should be set aside.


author: Walker, Chancellor.

text:
    In the matter of H- C-, Jr., a master in chancery.
    [Decided December 6th, 1912.]
    1. Annexed to a bill for. injunction and relief was an affidavit made by a master in. chancery setting forth, among other things, that a man and woman, whom ho did not know, called upon him and represented themselves to be A. Di S. and wife, and requested him to draw deeds for a property standing in the wife’s name to one T. A. and from him to A. Di S., the alleged lmsband. All this was done; the master taking the acknowledgments of the parties to the respective deeds, and they were after-wards recorded. Thus it appeared that the master did not know A. Di S. and the woman (who, in fact, personated his wife) ; but as it appeared that he might have known T. A., the chancellor wrote him a letter of inquiry, to which he replied that T. A. was introduced to him by A. Di S. on the day the deed from him (T. A.) to A. Di S. was executed and acknowledged. It then appearing that the master did not know any of the parties executing and acknowledging the instruments, for want of acquaintance with A. Di S., a rule was made requiring him to show cause why he should not be deprived of his office of master in chancery and why his commission should not be superseded and returned into court to be vacated and canceled, or why he should not be otherwise disciplined and punished for his unlawful execution of his office. Upon the return of the rule the master showed by credible evidence that he in fact did know A. Di S. prior to drawing and taking the acknowledgments to the conveyances, and that the woman who falsely personated his wife was introduced by him to the master as his wife, and that he also introduced T. A. to him. The master’s excuse for making the misleading affidavit, which was drawn for him by the complainant’s solicitor (apparently without fault on the part of the solicitor), was that while it did not exactly meet with his approval, he signed it in order to save delay and in the belief that he would soon be called as a witness in the case when he could go into details and make an explanation. Upon all the foregoing facts — Held, that the master’s conduct, grossly careless and reprehensible as it was, does not involve moral turpitude; and that the proprieties of the case do not require the revocation of his commission as master in chancery or that he be otherwise punished; sufficient discipline, in the court’s opinion, arising out of the exposure of the matter and the censure herein and hereby visited upon him.
    2. Before a master in chancery or other officer entrusted with that power and authority, may take1 acknowledgments to deeds of conveyance and other instruments under section 22 of the act concerning conveyances (Gomp. Stat. p. 15'J/&'), he must be satisfied that the party making the acknowledgment is- the identical grantor named in the instrument; he cannot be so satisfied unless the grantor is known to him; he need not be well known, he may be only casually known; but in one way or another he must be known, that is, the officer taking the acknowledgment must be satisfied in his conscience that the party making it is the identical person named in and who executed the instrument. Knowledge of -the grantor may be acquired by introduction from one with whom the officer is acquainted, and in whom he has such confidence that he has no doubt but that the person introduced is the person he is represented to be. ’ If in such a situation the officer is purposely or innocently deceived,-no criticism can properly be leveled against him. His action in certifying an acknowledgment after such an introduction of the grantor would be blameless, even if he were deceived. When a man appears before an officer, introduces himself, produces an instrument which he says he desires to exeeuie, if then the officer takes and certifies an acknowledgment — certifies that he is satisfied that a perfect stranger is the identical grantor named in the instrument — he solemnly certifies to an untruth and should be deprived of his office, or otherwise appropriately punished; and it seems he would be liable for damages sustained by reason of his false certificate, if in fact the grantor was falsely personated.

      On rule to show cause why a master’s commission should not be revoked for unlawful execution of'his office.
   Walker, Chancellor.

A bill was recently filed (Di Sapio v. Di Sapio, Docket 35, p. 191) in which the complainant alleged that her husband, who wras residing separate and apart from her, appeared before Ii-C---, Jr., a master in chancery, with a woman whom he represented to he his wife, and informed the master that she was desirous of conveying to him a property, the title to which stood in her name; whereupon Mr. C--drew a deed from Di Sapio and the woman, describing her as his wife, to one Atellizzi, and a deed from him to the man Di Sapio, and took the acknowledgments to both deeds. The bill, which was filed by Di Sapio’s wife, alleges false personation of her by the woman who, with her husband, made the deed to Atellizzi; and prays to have the deed annulled, set aside and delivered.up to he canceled. The hill of complaint was presented to me oh an application for a preliminary injunction, and annexed to it was an affidavit by Mr. C-himself. In it he says:

“A inan and woman of the Italian race, who were unknown to deponent, appeared at Ms office and pretended and represented themselves to be Antonio Di Sapio and Maria Di Sapio, his wife, stating that the said Maria Di Sapio was the owner of lands and premises in the city of Long Branch, in this state ; which are .more particularly described in the foregoing bill of complaint, and requesting that deeds be drawn conveying the said lands and premises to the said Antonio Di Sapio; that the said conveyance was made through an intermediary, one Thomas Atellizzi, on the day last-above mentioned, when the said woman, who represented h.erself to be Maria Di Sapio, executed, acknowledged and delivered a deed of conveyance for the said lands and premises, the said Antonio Di Sapio joining therein, to the said Thomas Atellizzi, dated on the same day and year, who by deed dated on the same day and year, conveyed the said lands and premises to the said Antonio Di Sapio in fee-simple absolute, both of which said deeds were subsequently recorded in the clerk’s office of the county of Monmouth.”

The master in his affidavit further says that afterwards he was introduced to Maria Di Sapio, the wife of Antonio, by the solicitor of the complainant, and that she was not the woman who appeared before him in the company of Antonio and represented herself to be his wife, and who, with Mm, executed, acknowledged and delivered the deed to Atellizzi.

It thus appeared before me by the master’s own sworn statement that he did not know Di Sapio and the woman who represented herself to be his wife, when to a deed from them to one Atellizzi, he took and certified an acknowledgment — including a separate acknowledgment of the alleged wife — which made the instrument evidence and entitled it to be recorded. He did not state, however, that he did not know Atellizzi, but it was to be inferred that he did not.

How, it appeared to me, that the master did not know Di Sapio and the woman when they called upon Mm, but that he might have known Atellizzi, and that the latter might after-wards have made him acquainted wiih Di Sapio and the woman, introducing her as his wife, before the execution and acknowledging of the deed from them, although the presumption was clearly the other way; and, not wishing to do the master an injustice, I wrote him a letter asking him'if he knew Atellizzi,. to which he replied that Atellizzi was introduced to him by Di Sapio on the clay that the deed from him (Atellizzi) to Di Sapió was executed and acknowledged.

Upon this state of facts being made to appear, I entered a rule which, after certain preliminary recitals, concluded as follows:

“That at and before the time of the taking and certifying- of the said acknowledgments, and since, the said H--C-, Jr., was unacquainted with and did not know either the said Antonio Di Sapio or the said woman representing- herself to be-Maria Di Sapio, or the said Thomas Attellizzi; from all of which it appears that the said H-C-, Jr., took said acknowledgments in violation of section 22 of ‘An act respecting- conveyances (Rev. 1898), which provides that deeds and certain other instruments may be acknowledged before certain officers, including masters in chancery, such officers being satisfied that the parties are the grantors in such deeds or instruments; and it appearing that the said HC-, Jr., was not, and could not' have been, satisfied thát said parties were the grantors in said deeds, that is, the true and lawful grantors mentioned and described in said deeds and that, therefore, he unlawfully executed his office as master in chancery :
“It is, therefore, hereby ordered that the said H — -C-, Jr., do show cause before the chancellor at the state house in Trenton on Tuesday, the 24th of September instant (1912), at 10 o’clock in the forenoon, why lie should not be deprived of his office as master in chancery of New; Jersey and why'his commission as such should not be superseded and returned into court to be vacated and canceled, or why he should not be otherwise disciplined and punished for his unlawful execution of his office as aforesaid.”

Upon the return of the rule the master, who is also an attorney and solicitor, somewhat to my astonishment, asserted that he knew Di Sapio previously to his visit to him (the master), on the occasion of his presenting the woman as his wife, and requesting the drawing of the conveyances. His story can better be told perhaps in his own language as it appears in his affidavit on the return of the rule. It is this:

“H- C-, Jr., being duly sworn according to law, on his oath, deposes and says, that he is a counselor-at-law of the said State of New Jersey, a master of the court of chancery and one of the firm of TV. I. & H. 0-, maintaining an office in the city of Long Branch, in the county and state aforesaid, where he resides; that on or about the second day of December, one thousand ■ nine hundred and ten, Ur. Edward Dambrisi, an Italian gentleman, whom deponent had previously known for some time, brought Mr. Antonio Di Sapio to their office and introduced him to deponent in the presence of W-I-C-, deponent’s father; that then and there the said Antonio Di Sapio stated to deponent that his wife, Maria Di Sapio, was the owner of a certain property on Laird street, in the said city, and that she desired to convey the same to him, her husband; not having her deed for the said property with him at that time, the said Antonio Di Sapio returned later in the day and produced to deponent two title deeds for the said property, showing that the title thereof stood in the name of the said Maria Di Sapio, and said that Mr. Thomas Atellizzi would act as the third party through whom the property might be conveyed; that the said Di Sapio then and there requested deponent to draw deeds conveying the said property to him, and said that if deponent would draw the said deeds they would come up the following day and execute them.
“And deponent further says that he prepared the said deeds as requested, and dated them the third day of December, one thousand nine hundred and ten; that on the day and year last aforesaid the said Di Sapio again called at the said office and informed deponent that they would not be up that day to sign the deeds as his wife had run away, and he requested deponent to hold the said deeds until she returned; that afterward the said Di Sapio called again at the said office on several different days and informed deponent that she had not yet returned home.
“And deponent further says that afterwards, to wit, on the fourteenth day of December, one thousand nine hundred and ten, the said Di Sapio called again at the said office and brought with him an Italian woman, who he introduced to deponent as Mrs. Di Sapio, his wife, and said that they had come up to sign the deed; that deponent talked to her and she told him that she desired to convey her said property to her husband, and that her husband had informed her all about the said deeds; that deponent read over to them the first deed, and she informed him that she could not write her name in English, but would make her mark; that upon referring to the aforesaid title deeds deponent then observed that in one of them the said Maria Di Sapio had there also made her mark; that then and there they executed the said deed for the said property to the said Thomas Atellizzi, dated as aforesaid, and acknowledged the same in due form of law before deponent as a master in chancery, and that thereupon deponent certified said acknowledgments upon the said deed; that before leaving that day the said Di Sapio informed deponent that Mr. Atellizzi was working that week and would not be up then, but that just as soon as he had a day off he would be up and sign the other deed.
“And deponent further says that subsequently, to wit, on the twentieth day of December, one thousand nine hundred and ten, the said Di Sapio called again at the said office and brought with him Mr. Thomas Atellizzi and introduced him to deponent, saying at the same time that he was the man who had come up to sign the deed; that deponent talked to the said Thomas Atellizzi, and when deponent spoke of signing the other deed Mr. Atellizzi replied that that .was what he had come up for, that Mr. Di Sapio had told him about it; that deponent read over the said deed to him and that then and there the said Thomas Atellizzi executed the other deed for the said property to the said Antonio Di Sapio, dated as aforesaid, and acknowledged the same in due form of law befoi'e deponent as a master in chancery, and that thereupon deponent certified said acknowledgment upon the said deed.
“And deponent further says, that being so acquainted with and knowing the said parties he was satisfied that the said Antonio Di Sapio and Maria Di Sapio, his wife, and the said Thomas Atellizzi were the grantors in the said respective deeds, and that the said deeds were executed and acknowledged according- to law.
“And deponent further says that on July 11th, 1912, he signed a.n affidavit which was attached to and made a part of the bill of complaint in the case of Di Sapio v. Di Sapio et al., which said affidavit did not set forth that deponent knew the said Antonio Di Sapio, Maria Di Sapio (the woman who signed the said deed) or Thomas Atellizzi, or that deponent was satisfied as a master of this court that they were the grantors named in the said deeds, at the time of taking the said acknowledgments; that deponent did not exactly approve of the said affidavit at the time of signing it and he so expressed himself at that time to his said father-, before whom deponent was sworn; that deponent signed the same, however, to save any further delay, thinking that the solicitors had drawn it purposely in general terms, and expecting soon to supplement it by giving- the facts more fully in his testimony at the hearing of the said cause; that deponent returned the said affidavit and bill to Mr. William N. Cooper, one of the said solicitors in the said case, from whom he received them on the day and year last aforesaid, together with a letter stating .that the said affidavit did' not exactly meet with deponent’s approval and giving his l-easons as aforesaid for signing the same.”

The master’s father corroborates his son by an affidavit in which he states he was present when Damhrisi brought Di Sapio to their office and introduced him to his son; that he was present also the next day when Di Sapio called again and said that his wife had run away, and was present afterwards when Di Sapio called on several different days. He says further that before his son signed the affidavit above referred to he heard him say that it did not exactly meet with his approval, that it was drawn in too general a way, but that he would sign it to save delay, as he expected soon to be called to give the facts at the hearing, and that his son at the time he returned the affidavit to the solicitor sent him a letter to that effect. The master also submitted an affidavit of Lillie Gelli, the daughter of Dambrisi, who says that her father, a citizen of the United States, who has lived in Long Branch over thirty years, is now in the kingdom of Italy and will probably not return to this country before next spring. This,, of course, was put in to .excuse the want of an affidavit from Dambrisi.

The solicitor of the complainant makes an affidavit on behalf of the master in which he states that he prepared a form of affidavit to be signed by him which he mailed to the master for the purpose of having it executed; that it was executed and returned with a letter, which he, the solicitor, had been unable to ^find, but that his recollection is clear that it said that the affidavit did not exactly meet with the master’s approval, but that he had signed it in order to save delay, and that he undoubtedly would be called as a witness in the case and then would go into details more fully. In fact, the complainant has two solicitors and both swear that they saw the letter which the master saj^s he wrote and sent with the affidavit,

It must be admitted that a man who will make an affidavit which he did “not exactly approve of * * * at the time of signing if‘ is very free with his oath, even if he “so expressed himself at that time.”

When the affidavit which he made for the complainant wás sent him, and which did not state the facts truly, as he says, he was at liberty to change it before executing it, so that the truth, which it would seem was of almost vital interest to him, would appear. Why he did not do so he but feebty explains. However, such conduct, grossly careless and reprehensible as it is, does not, I presume, make a cause of moral turpitude against the person involved.

I greatly fear that some masters in chancery and other officers entrusted with the power and authority to take acknowledgments to deeds of convejfance and other instruments do not fully appreciate their responsibility and do not fully understand what is required of them in the way of executing their office in these instances. The statute (Comp; Stai. p. 15J/.2 § 22) provides that certain officers, including masters in chancery, may take acknowledgments of deeds of conveyance and other instruments,

“such officers having first made known the contents thereof to such party making such acknowledgment and being also satisfied that such party is the grantor in such deed or instrument.”

How, it must be perfectly obvious that no one can be satisfied of the identity of another unless that other is known to him. He need not be well known, he may be only casually known, but in one way or another he must be known — that is, the officer-taking the acknowledgment must be satisfied in his conscience that the party making the acknowledgment is the identical person named in and who executed the instrument. Knowledge of the grantor may be acquired by introduction from one with whom the officer is acquainted, and in whom he has such confidence that he has no doubt but that the person introduced is the person he is represented to be. If, in such a situation, the officer is purposely or innocently deceived, no criticism can properly be leveled against him. His action in certifying an acknowledgment after such an introduction of the grantor would be blameless, even if he were deceived. -When a man appears before an officer, introduces himself, produces an instrument which he says he desires to execute, if then the officer takes and certifies an acknowledgment — certifies that he is satisfied that a perfect stranger is the identical grantor named in the instrument — he solemnly certifies to an untruth and should be deprived of his office, or otherwise appropriately punished. And he is doubtless liable for damages sustained by reason of his false certificate, if, in fact, the grantor was falsely personated. 1 Oye. 62S.

A well-considered case on the subject under discussion is that of Wood v. Bach, 54 Barb. (N. Y.) 134, in which the remarks of Judge Cardozo (at p. UfS) are particularly apposite. . He said:

“The statute requires that an officer taking an acknowledgment shall know of have satisfactory evidence that the person making such acknowledgment is the individual described in and who executed the conveyance; but it nowhere prescribes either how such knowledge shall have been acquired, nor that it must have existed for any definite period of time. That being so^ who shall fix a rule by which it shall be determined whether the commissioner was justified either by the length of his acquaintance, or the method of forming it, in certifying that he knew the party? 'Must it not necessarily be a question for the conscience of the officer taking the acknowledgment, and is not that just where the statute meant to leave it, if there were anything at all upon which the officer’s conscience could be called upon to act? As no specific period of prior acquaintance is fixed by the statute, who shall say that one month would not be sufficient if llie officer taking the acknowledgment so regard it ? And if one month, why not an'hour, or the moment at which the acknowledgment is taken? It is clear .that the right to take the acknowledgment does not depend upon the length of the officer’s acquaintance with the person. Is that right dependent on the manner in which the officer’s knowledge is acquired? The statute does not say so. The means through which the officer obtains knowledge of the person’s identity are not material. One officer might consider a person known to him through a method that another might entirely reject. But in this case the usual means of knowledge were acted on and received by the officer as sufficient.

“Knowledge of persons and their identity is most frequently acquired by introduction through mutual friends, and when such introduction has taken place the parties certainly know each other. Every-day men, in social life, thus become known to each other, and I never heard that such an introduction was not sufficient, or that any length of time after, it must elapse, to justify a statement or certificate that they' were acquainted. When an introduction does not proceed from such a source as satisfies the officer’s conscience, undoubtedly he should not certify that he knows the party, but should require ‘evidence’ which, of course, must be on oath; but when the character of the introducer, whom the officer knows, conveys knowledge to the officer’s conscience, he may well be satisfied and may properly give the certificate.

“In this case the parties making the acknowledgments were introduced to the officer, the ordinary way of becoming- known, by one in whom he had such confidence that ‘he had no doubt’ that they were the persons they purported to be. Upon that, in social life, he would have been regarded as knowing them, and knowing them in social life he had the right, if his own conscience were convinced, from that knowledge of their identity, to take their acknowledgments in his official capacity.”

Upon this whole matter I have been able to arrive at the conclusion that the proprieties of the case do not call for the removal of the master from his office or that he be otherwise punished; sufficient discipline, in my opinion, arising out of the exposure of the matter and the censure necessarily herein and hereby visited upon him.


author: WaLTvJSR, Ci-IAjSrOEBLOK.

text:
    Annie T. Williams v. Harry L. Williams.
    [Decided December 10th, 1912.]
    1. It is an inflexible rule in this state that a divorce will not be granted upon the uncorroborated testimony of a party to the suit; and this applies not only to the cause for divorce but to every necessary element in the proofs.
    2. Under the above rule, petitioner’s testimony that a certain letter of the defendant to her solicitor was written by him, is insufficient to establish the letter as an element in the proofs, unless the fact that the letter is in the handwriting of the defendant be corroborated.

      On exceptions to master’s report.

      Mr. James II. Boliiho, for the petitioner and exceptant.
   WaLTvJSR, Ci-IAjSrOEBLOK.

This, is a cause for divorce for desertion. The special master to whom the case was referred in his report sajrs: “That the charge of desertion is supported by the evidence of the petitioner alone, and that there is no corroboration thereof; the parties 'had not lived together amicably for some time prior to the alleged desertion, and that, there being no children to make each more tolerant of the other’s feeling, and while against the consent of the petitioner, the desertion was not disagreeable to her; after the desertion, the continuation thereof was, to some extent, by her acquiescence. And * * * in my opinion the petitioner has not substantiated the truth of the allegation of the said petition as to the cause for divorce, nor has she substantiated the alleged desertion by the proof required by law, and is not entitled to the relief prayed. I do recommend that the petition be dismissed.”

Beside the petitioner only two witnesses were sworn, Emma Y. Randall, a friend, and Walburga Shaumeyer, the mother of the petitioner. These latter witnesses gave no testimony of value, except that it is to be inferred from the mother’s testimony that the parties have not lived together since the alleged desertion.

. It is an inflexible rule- in our state that a divorce will not be granted upon the uncorroborated testimony of a party to the suit; and this applies not only to the cause for divorce but to every, necessary element in the proofs. Bid. N. J. Div. Pr. (2d ed.) 21, and cases cited.

Assuming the desertion proved, there must still necessarily be proof of its willfulness. In this connection counsel argues that a letter written by the defendant to the petitioner’s solicitor) November 24th, 1911, in which he said, “Will you very kindly suggest to Miss Shaumeyer (his wife) that the writer is very desirous of writing her a last letter?” proves that the defendant is alive and well and able to return to the petitioner, and that it is to be inferred from the letter that he has not and never had any intention of returning and that his desertion has been willful. This letter is attached to the brief submitted on the argument of the exceptions, but nowhere in the testimony returned with the master’s report do I see any mention of its having been offered in evidence. The only reference to it in the evidence is a question put to the petitioner wherein she was asked, “Did you recognize his (defendant’s) signature on a letter which he wrote Mr. Bolitho ?” and she answered, “Yes, sir.” It did not appear that the letter was then and there exhibited to' her, and, as already stated, it appears not to have been offered in evidence. Assuming that it was offered, and that the writing (or signature) was thus shown to be that of the husband, and, assuming further, that that letter, if proved, would afford sufficient corroboration to make out the petitioner’s case, it nevertheless fails of that purpose because the proof of the letter comes from the petitioner alone, and she is not, in that respect, corroborated.

In Sterling v. Sterling, 71 N. J. Eq. (1 Buch.) 59, it was held that in a suit for divorce the uncorroborated testimony of one of the parties is insufficient to establish any of the essential facts; One of the essential facts alleged in that case was the possession by the complainant of a key which he found would open the door of a house in which ho says a man lived whom he suspected of being intimate with his wife. Chancellor Magie remarked (at p. 61) : “There is corroboration that the key which complaint-ant had would open the front door of a certain house, but there is no corroboration of complainant’s testimony that the key came from the possession of the defendant, nor that the house was one in which the man in question lived, nor that there had ever been any undue familiarity between the defendant and that man.”

How, what was said in that case (Sterling v. Sterling) about the key, maj’' be said as well in this case about the letter. Assuming that the proof is that the petitioner’s solicitor received a letter from the defendant making what amounts to damaging admissions, there is no corroboration of petitioner’s testimony that the letter (or signature) is in the handwriting of the defendant. This alone is fatal to the petitioner’s case on the question of the authorship of that letter.

The exceptions must he overruled and the master’s report confirmed.


author: Emery, Y. C.

text:
    Catherine E. E. Irvine v. William H. Irvine.
    [Decided October 24th, 1912.]
    Upon an application for temporary alimony in a suit for alimony and maintenance, where .the complainant’s affidavits as to the circumstances of the separation are flatly contradicted by the defendant, hers present a prima facie case entitling her to a trial of the question whether the circumstances of the separation were such as to make the defendant’s present offer pending suit, of rooms to live in with him, no defence to the suit, and in the meantime his legal obligation to support her continues, and he should contribute thereto.
    On application for temporary alimony.

      Mr. Frederick M. P. Pearse, for the motion.

      Messrs. Egner & Front, contra.

   Emery, Y. C.

This is a bill for alimony and maintenance under the statute, and an application for temporary alimony. The affidavits of the wife as to the circumstances of the separation and the refusal to support, are flatly contradicted by. the husband, but, on considering all the affidavits, I think those upon the part of the wife present a prima facie case entitling her to a trial of the question whether the circumstances of the separation were such as to make the husband’s present offer pending suit, of rooms to live in with him, no defence to the suit, because not made with any right to expect it to be accepted.

In the meantime, the husband’s legal obligation to support his wife continues and he should contribute thereto. An order should be advised for alimony penclente lite, at the rate of $7.50 per week, from September 17th, 1912, and a counsel fee of $30, pajrable within thirty days.


author: Emery, T. C.

text:
    Sarah L. Remer v. Frances J. Benedict et al.
    [Decided June 10th, 1912.]
    1. In a suit for partition, a trust deed comprising the real estate in question examined, and held, that said deed is testamentary in character in reference to the provision therein giving- the trustee the power to sell, and that by reason of this provision of a purely testamentary character, the trust for that purpose must be declared ineffectual because it was not declared by a proper testamentary paper. •
    2. This result would leave in the trustee, if anything, nothing but the naked title to the real estate, which he is bound to convey to the persons entitled to the equitable estate under the testator’s will, and these persons being now parties to this suit (in which the trustee is also a party) are entitled to a decree for a partition.
    3. On the question of laches, evidence examined and held, that although in any ordinary case the delay would be fatal, yet the circumstance under which it occurred here are such as not to give it that effect.
    On bill for partition. On final hearing on pleadings and proofs.

      Messrs. Charles O. Pilgrim and Prederich T. Hey, for the complainant.

      Mr. Ralph R. Lum, for the defendants Frances J. Benedict, Cornelius Mandeville, Amalmyra Mandeville and Katherine Mandeville. '

      Mr. William A. Smith and Mr. Charles II. Stewart, for the defendant Bioren.
   Emery, T. C.

(orally).

In this case I reach the conclusion that the deed in question is testamentary in character in reference to a certain very important-provision of it. I refer to the provision which gives the trustee the power to sell. If the trust deed directed merely that on the death of grantor’s wife, the trustee should convey to the persons designated by the will then in existence, or by any future will, or in case the grantor died intestate, and should then convey to his heirs-at-law, it may be that the direction would be valid for the purpose of carrying out the trusts of making the conveyance directly to the persons indicated in the first place by the testator’s will, and second, by the deed-itself, in case there was no will. In either case there would lie certainty as to the persons to take fixed by the deed itself, but in the present case this further complication appears by the will which was executed in 1888, and before the execution of the deed. There is, after a provision giving the net income,' issues and profits of all his estate to grantor’s wife, a direction that at her death the residue of his estate shall be disposed of by giving three bequests of a thousand dollars each to his half sister and half brothers, and the remainder of the estate is then to be equally divided between his sisters Mrs. Mandeville and Mrs. Barrett, his brother Charles Nessler, and his niece Sara Hillock. This will of 1888 gives no power of sale to the executors of the real estate which passes under the will. The trust deed in question gives expressly not only the right to convey the propertj", but the right to convert the same into personal property if tine trustee should consider it necessary for the purpose of carrying out the provisions of the said last will and testament. By that clause in the trust deed a power is given to this trustee which was not given to the executors under the will, and this power is a provision of.a nature purely testamentary in its character. It is a provision which a court of chancery would probably have to carry out on the application of the executor of the will by a sale in order to pay the legacies. It has been proved in the case that the personal estate left was so small as riot to reach to the payment of the legacies, and was probably little more than necessary for the payment of the debts and administration expenses. I think that by reason of this inclusion in the deed in question of this provision of a purely testamentary character, the trust for that purpose must be declared ineffectual, because it was not'declared by a proper testamentary paper. That would leave in this trustee, if anytliing? nothing but the naked title to the legal estate, which he is bound to convey to the persons who are entitled to the equitable estate under the will of the testator, and these persons being now parties to the suit for partition (in which the trustee is also a party), are entitled to a decree for a partition of the estate. The actual partition being impracticable, a sale will be made, but no division of proceeds of sale will be made until the rights of the legatees to the funds given to them by the will have been ascertained.

Mr. Pilgrim — As to the third tract, a reconveyance is not necessary.

The Court — I may make a direction in the final decree that for the purpose of confirming the title of any purchaser, the trustee join in the conveyance.

I think in this ease the parties are right in bringing up the question' of laches,.for the purpose of having it considered and given all the weight to which it is entitled. In any ordinary case the delay would of course be fatal, but the circumstances under which the delay' occurred here are such as not to give it that effect. Here the vendor who made the contract was living with the purchasers and it was a question of commencing a law suit against him. The vendor had reached a time of life when the purchasers didn't desire to trouble him about a law suit, and he didn't even want to be troubled with the matter of making a conveyance to them. The written agreement was made and the parties went on afterwards as if the sale had been in fact actually carried out, and treated the vendor as entitled to the money consideration to be paid, paying him annually the interest on that money still due on the account of the purchase as if it were a debt. I think the circumstances of the.case sufficiently take it altogether out of the ordinary case of requiring a speedy action for specific performance, and would make the ease now rather a case of carrying out by way of specific performance what was treated all the way along as in fact a family settlement. On the payment of the amount of money due, a decree will be given for' the conveyance.

Mr. Stewart — $1,200 was given on account.

Mr. Lum — The amount is $3,800 less $1,200.