author: Swayze, J.

text:
    Aaron G. Smith et al., appellants, v. James C. McDonald et al., respondents.
    [Argued March 15th, 1906.
    Decided February 2d, 1907.]
    Under the statute of distributions as amended in 1899 by striking out the proviso limiting representations to brothers’ and sisters’ children, the estate, where the intestate’s living next of kindred are all first cousins, is to be distributed among the living first cousins and the descendants of deceased first cousins per stirpes; the descendants of great-great-grandparents and of great-uncles and great-aunts, who do not come within this description, are excluded.
    On appeal from a decree of the prerogative court advised by Bergen, vice-ordinary, whose opinion is reported in 169 N. J. Eq. 165.

      Mr. Smnuel Kalisch and Mr. 'Frederick E. Ilodge, for the appellants.

      Mr. Edward 8. Atwater, Mr. Elwood G. Harris, Mr. George T. Parrot, Messrs. Condiot, Gondict & Boardmm, 'Messrs. Raymond & Van Blarcom (Mr. Joseph G. Kammerlohr, Mr. Samuel Ware Packard and Mr. Be Forest M. Neice, on their brief), and Mr. Frederic M. P. Pearse, for the respondents.
   The opinion of the court was delivered by

Swayze, J.

This case necessitates, for the first time in this court, a construction of the statute of distributions as amended in 1899. The controversy is between living first cousins of Cornelia B. Halsey and descendants of deceased first cousins, on one side, and descendants of deceased great-great-grandparents and of great-uncles and great-aunts., on the other side. The orphans court ordered a distribution among the living first cousins and descendants of deceased first cousins per stirpes, to the exclusion of descendants of great-great-grandparents and of great-uncles and aunts. This decree was affirmed by tire prerogative court and an appeal taken.

We are without help from authority. Prior to 1899 this question could not have arisen. The statute of distributions, as it had stood for centuries, following the law of Justinian nearly fourteen hundred years old, excluded representation among col-laterals beyond brothers’ and sisters’ children. In our statute this limitation was introduced at the end of the paragraph giving a moiety to the widow, instead of at the beginning of the paragraph providing for distribution where there was no widow, as in the statute of Charles II. (2 Wms. Ex. (6th Am. ed.) 159k), but this court held, in Davis v. Vanderveer, 23 N. J. Eq. (8 C. E. Gr.) 558, that the limitation was applicable in a case where the intestate left no widow. The only change made by the legislature in 1899 was the omission of the proviso containing this limitation (P. L. 1899 p. 20k) in subdivision 2 of section 169 of the Orphans Court act. Section 168 and the other subdivisions of section 169 were left unchanged.

The most important section to be considered in construing the act is section 168, for, as Lord Hardwicke said, in Evelyn v. Evelyn, 8 Atk. 762, “the rules laid down after the general direction in the act are only so many specifications of particular cases.” To reach a correct result, section 168, and those portions of section 169 which are applicable, must be read together.

Section 168 directs the court to order a just and equal distribution to the next of kindred to the intestate in equal degrees, or legally representing their stocks, each according to his or her respective right pursuant to the laws in such eases and the rules and limitations hereinafter set down. Those rules and limitations, so far as material to the present case, direct a distribution to the next of kindred, in equal degree, of' or unto the intestate and their legal- representatives as aforesaid. The words “as aforesaid” seem to have been used to direct attention to the limitation upon the right of representation among collaterals, which has been stricken out, and they probably no longer serve any useful purpose.

The distribution, to comply with the statute, must answer the following requirements: It must be just and equal; it must be to the next of kin in equal degree “and their representatives;” it must be to each according to his or her respective right; it must be pursuant to the rules and limitations of the act.

The words “just and equal” are perhaps a little difficult to explain. In one sense any distribution authorized by the statute would be just, for prior to the statute the next of kin were without right to share in the personal estate. 2 Wms. Ex. 1591; Ordinary v. Cooley, 30 N. J. Law (1 Vr.) 271 (opinion of Justice Vredenburgh). But the words would have been quite superfluous if nothing more had been meant than a compliance with the statute. I think they had another meaning, and referred to that natural right inherent in propinquity of blood mentioned by Chief-Justice Beasley in Taylor v. Bray, 32 N. J. Law (3 Vr.) 184, and in Schenck v. Vail, 24 E. J. Eq. (9 C. E. Gr.) 551. Whatever the law may be, it cannot be denied that a general sense of justice favors the rights of blood, and this sense of justice, as the chief-justice said, appears in the general scheme of our laws on the subject of descent and distribution. Tested by this sense of justice, the first cousins and their descendants seem nearer in blood than great-great-grandparents and their descendants, although great-great-grandparents and cousins are alike related in the fourth degree. The reasons are that great-great-grandparents belong to so remote a generation that they are hardly likely to have been known personally to the intestate, and even their names are probably forgotten; their descendants naturally become so numerous and so scattered that the intestate seldom can have known them, or even have been aware of the relationship, and the passing of three generations makes proof of kinship difficult. We have no reason to doubt the statement in appellants’ brief that hardly forty per cent, of the claimants who have been excluded from sharing in this estate will be able to prove legally that they are representatives of an ancestor who, if living, would have stood in equal degree of kinship to the intestate as the living first cousins. Cousins, on the other hand, are ordinarily contemporaries of the intestate, are known to him and their relationship recognized'; while the descendants of first cgusins, belonging to a younger generation, are more naturally looked on as having a spes accrescendi, to use Lord Hardwicke’s expression, in Evelyn v. Evelyn.

Again, there are eight pairs of great-great-grandparents, and hence at least eight stocks with which the cousins must share if the appellants’ contention is sound. In a perfectly conceivable and not improbable case the intestate may have but one cousin. To adopt a construction which would give to that cousin only one-ninth of the estate and distribute eight-ninths to remote relatives, would lead to a result which must shock the sense of justice of most men. Yet that is an understatement of the difficulties to which the construction would lead, for one of each pair of great-great-grandparents may have remarried after the death of the spouse, and since the half-blood share in the,personal estate with the whole blood, there may be sixteen stocks to share with the cousin. Such considerations have had weight with the courts in decided cases. =The rights of brothers and sisters depend upon the same language of the statute as the rights of cousins. They take, as next of kin, in the second degree, but grandparents are also in the second degree, and it has been contended that the four grandparents were entitled to share with brothers and sisters. 2 Kent ‘J/.23. They would be entitled to share upon the bare words of section 169, subdivision 3, but it was decided in England in several cases prior to our revolution that grandparents did not share with brothers and sisters. Lord Winchelsea v. Norcliff, 2 Freem. 95 (1686); Pool v. Wishaw (1708) and Norbury v. Richards, cited in Evelyn v. Evelyn, 3 Atk. 762. This construction was so thorough^ satisfactory that the cases seem never to have been taken to an appellate court, and we in this state have acquiesced so entirely that, although the case must have arisen, no one seems ever to have mooted the question in court. Yet the only foundation in reason for excluding the grandparents is the sense of natural justice which the framer of the statute had in mind when he required the distribution to be just. If no rule or limitation of the statute militates against such a construction, the just distribution required by section 168 would favor the respondents in this case.

The distribution must also be equal. The equality is, of course, not an absolute equality of shares, but an equality according to the respective rights of each and the rules and limitations of the statute. It seems quite improbable that the legislators could have intended that those standing in the same relationship to the intestate should receive unequal shares, yet that is the inevitable result of the construction for which the appellants contend. A cousin who is related only through a single parent, an uncle or aunt, would get a single share; a cousin, related through both father and mother, both parents being descended from the great-great-grandparents, would receive a .share not as the child of one of his parents only but as representatives of the great-great-grandparents on both sides; a cousin whose grandparents were also related through the great-great-grandparents (as they may well be, since cousins are allowed to intermarry); would receive an additional share by way of representation through each of his grandparents, for each must share in the distribution according to his or her respective right. The complication is increased by the fact that there are eight pairs of great-great-grandparents. It is impossible to conceive the result of the intermarriages of three generations. What they must be is well indicated by a note in Z Bl. Com. Z08. It is only intermarriages which prevent the number of ancestors from actually doubling with each generation as we go back. An interesting illustration of the surprising effects of intermarriages is given in a genealogical table of the descendants of William the Silent in Frederic Harrison’s biography, Appendix A. These difficulties, which present themselves when the next of kin are of the fourth degree, would be increased many times if the next of kin were first cousins once removed (the fifth degree) or second cousins (the sixth degree). These cases may not improbably arise, and if the appellants are right, we must in one case go back to great-great-great-grandparents, thirty-two in number, and in the other case to great-great-great-great-grandparents (sixty-four in number). Neither the justice nor the equality contemplated by section 168 would be practicable under such a construction of section 169. It is probable that it was because of the foresight of these difficulties that the rule limiting representation was adopted by Justinian and retained so many centuries.

In spite, however, of these difficulties, the just and equal distribution of the statute is subject to the rules and limitations of section 169, and if the language of that section requires the construction put upon it by the appellants, justice and equality must yield to the command of the legislature.

The statute of distributions, says Lord Hardwicke, in Stanley v. Stanley, 1 Atk. 445, is very incorrectly penned, and must therefore be construed according to the intent and meaning of the legislature. This incorrectness is conspicuous in the provisions now to be considered. Section 168 directs distribution to the next of kindred of equal degrees, or legally representing their stocks. The expression is evidently elliptical. The words “next of kindred” must mean living persons, but there is nothing to indicate what word is qualified by the participial expression “legally representing.” It cannot, of course, be living next of kindred. Representatives in this sense, of living persons, would be as anomalous as an heir of a living person. The class designated to take by way of representation must be those persons who represent the same stock or same class of persons as the living next of kindred. The same difficulty is presented by the words of section 169, subdivision 3, “their legal representatives.” The pronoun “their” naturally refers to the next of kindred, but since tire next of kindred must be living persons, and since living persons can have no representatives in the sense of this act, the words must mean “the legal representatives of the next of kin who are dead.” This may refer to the dead next of kin who were of the same degree as the living, or it may mean tire representatives of those dead who, if living, would answer the same description as the actually living next of kin. In the former case it is the degree of kinship that is to be represented. In the latter it is the class of persons designated (in this case first cousins) that is to be represented. We agree with the learned judge of the orphans court that the latter is tire true meaning. ,We see no difficulty in the language of section 169 to prevent this construction, and the considerations already dwelt upon at length persuade us that we ought to adopt that construction which will best tend to promote the objects so clearly stated in section 168.

Adopting this construction, subdivision 3 of section 169 may be read, for the purpose of this case, as follows: “And in case there be no child, then to the cousins of or unto the intestate and their legal representatives.”

It was argued, on behalf of the respondents, that the cousins 'represented the stock of the grandfather, and the descendants of great-uncles the stock of the great-grandfather, and that the cousins were therefore nearer of kin by virtue of representation. This view of the doctrine of representation seems to have been that of Blaekstone, but it is not in harmony with the views expressed by Chief-Justice Beasley, for this court, in Schenck v. Vail, 24 N. J. Eq. (9 C. E. Gr.) 538, and Smith v. Gaines, 36 N. J. Eq. (9 Stew.) 297.

In our judgment, the stock to be represented is neither the stock of the grandfather nor of the great-grandfather, but the stock of first cousins, who are the class designated by the words “next of kindred.”

This construction gives effect to the change which the legislature evidently meant to introduce into the statute, as Mr. Justice Reed held when sitting as vice-chancellor (Fisk v. Fisk, 60 N. J. Eq. (15 Dick.) 195), and we think gives all the effect it was meant to have.

The legislature must have been aware of the settled construction of the statute which excluded grandparents from sharing with brothers, and could hardly have avoided the inference that a similar construction would exclude great-great-grandparents and their representatives from sharing with cousins. We fail to see anything in the language of the statute or the relationship which would justify one construction and not justify the other. It may, indeed, be urged that we adopted the construction from England, but the question, when first presented to the English courts, was purely a question of statutory construction, and the legislature was warranted in supposing that we would follow the same construction when dealing with a similar question. We ought not to assume that the legislature would knowingly have created the difficulties attending a novel construction of language which had been construed in one way by the English courts for two hundred years.

Another clause of section 169 remains to be mentioned. The distribution is to be subject to “the rules and limitations hereinafter set down.” Unless the construction above contended for is correct, it is difficult to understand what is meant by leaving the word “limitations” in the statute. Leaving out the proviso which was excised by tire amendment, there remain rules for particular cases, but no- “limitation,” unless the words “their legal representatives” are limited as 'we limit them.

It is true that our construction makes the right of descendants of great-great-grandfathers or of great-uncles to share in the distribution depend on whether a great-great-grandfatlier or great-uncle survives the decedent. But this result is not more fortuitous than frequently happens in construing the statute of distributions. The right of nephews and nieces, for instance, to share per stirpes -depends on whether an uncle or aunt survives. Wagner v. Sharp, 33 N. J. Eg. (6 Stew.) 520.

It was urged on behalf of the appellants that the decree fails to give effect to the word “every” in the phrase “every of the next of kindred,” but this word appears in the subdivision which provides for distribution in case the intestate leaves a widow. If any argument is to be drawn from this word, it seems that its omission from subdivision 3 and its use in subdivision 2 make against the appellant.

We think the orphans court was right in holding that the only persons entitled to share in the estate were the living first cousins and the representatives of deceased first cousins. We think it was light, also, in holding that the descendants of deceased first cousins took per stirpes. Such seems to be the necessary result of Hie words of section 168, “or legally representing their stocks.”

The appellants complain, also, that they were not allowed counsel fees in the orphans court or in the prerogative court. We are unwilling to disturb the action of these courts on this subject. We have, however, been aided in the consideration of a novel, difficult and debatable question by the arguments and briefs of appellants’ counsel, as well as of respondents’ counsel, and counsel fees will be allowed to both sides in this court. The amount will be fixed upon application for that purpose.

The decree is affirmed.

For affirmance—Ti-ib Chibe-Justice, Garrison, Fort, Garretson, Hendrickson, Swayze, Bogert, Vredenburgii, Vroom, Green, Gray, Dili.—32.

For reversal—Reed—1.


source: Caselaw Access Project

license: Public Domain

text:
    Gertrude N. Boice et al. v. Cornelius N. Conover et al.
    [Argued March 15th, 1906.
    Decided November 19th, 1906.]
    The rule adopted in State v. Sooy, fl N. J. Law (12 Tr.) S9Jf, is the settled law of this state.
    On appeal of Clarence L. Speyers, George D. Nevius, administrator of Gertrude N. Boice, and Cornelius N. Conover, from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 69 N. J. Fq. WO.

      Mr. Theodore B. Booraem, for the appellants.

      Mr. A.lan H. Strong, for the respondent Edwin Allen.
   The opinion, of the court was delivered by

Swayze, J.

We concur in tlie result reached by the vice-chancellor which is ably sustained by his opinion, and it is perhaps unnecessary to add to what he has said. It is thought, however, that some expressions in the opinion may be susceptible of the construction that Speyers is chargeable with notice of what was known to his attorneys. If such a construction of the language of the opinion is permissible, we think it goes too far. The rule adopted by this court in State v. Sooy, 41 N. J. Law (12 Vr.) 394, is the settled law of this state. The question is not necessarily involved in the case since the vice-chancellor properly found that Speyers was chargeable with actual notice of Allen’s equitable rights. This finding is sufficiently justified by the failure of Speyer to answer the charge of actual notice contained in Allen’s cross-bill, by his. placing his defence in his answer upon his belief that Allen had acquiesced in the original decree of the court of chancery and waived his appeal, and by his receipt through his solicitors of the money from the receiver in pursuance of that decree. With these averments in his own answer, Speyers could not deny actual notice of the claim made by Allen in the suit, which resulted in the very decree in pursuance of which he received the money.

For affirmance—The Chiee-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Green, Gray, Dill—13.

For reversal—None.


author: Reed, J.

text:
    Driver-Harris Wire Company, respondent, v. Wilbur B. Driver, appellant.
    [Argued March 22d, 1906.
    Decided March 4th, 1907.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 'W N. J. Eq. SJ/..

      Messrs. Edward A. & William T. Day, for the respondent.

      Messrs. Woodruff S Stevens, for the appellant.
   The opinion of the court was delivered by

Reed, J.

We agree with the conclusions of the learned vice-chancellor that the complainant, before deciding to approve or disapprove of the products and methods of the intention or discovery submitted to it by the defendant, is entitled, not merely to receive the product in the shape of wire, but is also entitled to know the ingredients which constitute the product, with their proportions, as well as the formula for their combination employed in the production of the product.

Until these are furnished, and the complainant has had thereafter reasonable time to approve or disapprove of the new product and methods, the defendant has no right to make or sell such goods on his own account.

It follows that the defendant, not having furnished to the complainant the required opportunity to exercise its judgment, the threatened sale by the defendant is enjoinable.

By the terms of the contract the defendant is not bound to experiment or to submit any invention, developments or improvements to the complainant. If he does experiment, however, as already remarked, he can make no sale of any product resulting from such experiment until he has given the complainant an opportunity to decide whether it will undertake the manufacture of the goods made according to the discoveries resulting from such experiment.

The right of the defendant to sell, in this instance, has never been acquired, and cannot be acquired except by furnishing to the complainant the required information, not necessarily through an answer which spreads the secret processes upon the record, but either so or directly to the complainant. Until it appears that such information has been furnished, the case made by the complainant as a ground for an injunction is unanswered.

No question was raised, here or below, concerning the propriety of using an exception to the answer as a means of determining the point involved.

The decree of tire court of chancery is affirmed.

For affirmance—Trie Chibe-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray, Dill—13.

For reversal—None.


author: Vkoom, J.

text:
    Ada H. Foote, appellant, v. Henry H. Foote, respondent.
    [Argued March 20th, 1906.
    Decided November 26th, 1906.]
    1. In a suit for divorce, evidence considered, and held sufficient td show desertion.
    2. To constitute desertion, it is not necessary that the intent to desert should have been formed at the time the party left his home, but it is sufficient if he afterwards determines to desert, and persists in such de-r termination.
    3. Under a statute requiring corroborative evidence of desertion in order to obtain a divorce, testimony of other witnesses is not required; but it is sufficient if the circumstances, as shown by the expressions and conduct of the defendant, together with the letters of the parties, corroborate the testimony of the complainant.
    On appeal from the decree of the court of chancery refusing a divorce, and advised by Vice-Chancellor Stevenson.

      Mr. Gorblandt Parker, for the appellant.

      Mr. PLenry G. Pitney, Jr., for the respondent.
   The opinion of the court was delivered by'

Vkoom, J.

The bill in this case was filed by the appellant on July 30th, 1903, praying divorce on the ground of desertion, and charged that the defendant for more than two years then last past had willfully, continuedly and obstinately deserted her, without any just cause or justification therefor. To this bill the defendant' filed an answer denying the desertion charged, and he also filed a cross-bill praying for a divorce on the ground of aji alleged desertion of him on the part of the complainant. The defendant failed to appear at the taking of depositions and offered no evidence to sustain either his answer or cross-bill.

The parties to this suit were .married at Elizabeth, N. J., on the 12th day of October, 1886, and continued to reside there until June, 1891. They lived first with the mother of the complainant, subsequently in houses rented by the defendant until the year 1890, when they- moved into a house built with money given to complainant by her mother, and there they lived until June, 1891. The defendant had been employed in the office of Kountze Brothers,-in New York City, at a salary of $2,000 per annum, and this position he lost in the early part of 1891. At this time a mortgage of $1,000, in addition to a mortgage of $2,000 used in completing the house, was placed upon it to pay •the debts of the defendant. After losing his position defendant did nothing to gain a living, and he not being employed, they broke up housekeeping; this was in June, 1891. The house was left vacant, complainant by invitation went ft* her mother’s house and defendant to his mother’s house in Elizabeth. One child, a daughter, was born November 23d, 1889, still living, and who is and has been with her mother.

In June, 1892, the defendant went to Laredos, Texas, for the purpose of managing an electric plant there. This move was with the consent and knowledge of the complainant, and it was the intention, as she hoped, to join him and live there. He remained in Texas until September, 1893, when he returned to Elizabeth and to his mother’s house. And it appeared that during the entire period of his residence in Texas the complainant received from him for the support of herself and child only the sum of $50; of this sum she applied $7 for her child’s use, the balance she applied to the payment of debts of the defendant.

After reaching Texas, in 1892, the defendant wrote to his wife, as she testifies, about every two weeks, until August 11th, 1892. These letters were in evidence and show that the defendant was doing well in his position there, and these letters may be termed, as on the argument they were, “kindly, if not proportionately loving,” but there was not in them a word of her coming to Texas or of the probabilities of his supporting her. That the complainant was willing to go to Texas appears, and that she was to go was a párt of the arrangement under which she ■ gave her consent to' his going.

After his letter of August 11th, 1892, from Laredos, Texas, he ceased' writing, and in fact did not write to his wife again until September 17th, 1893. After writing to him six or seven letters which remained unanswered, she wrote Mm, January 5th, 1893, withdrawing her consent to his remaining longer: This letter is important, and is as follows:

“Dear Harry—It is now five months since I have heard from you. Will you not be kind enough to tell me in what state of mind you expect me to spend the rest of my life? I gave my approval when you proposed Laredos, trusting it would prove conducive to the comfort of both of us. I now withdraw my consent to your remaining any longer.
“Very sincerely,
“Ada Henderson Foote.”

This letter was sent defendant by registered mail and received by him, as appeared from the registry return' receipt. To it he made no reply. '

Prior, however, toi the sending of this letter the-complainant wrote to her husband the following, letter, which was sent Mni by registered mail and received by him:

“My Dear Harry—It is now eleven weeks since I have had a line from you. In this time I have written and mailed you, this makes seven lettei's. I understand that letters have been received from you by a member of the family; from the silence I judge no message was sent to your wife or child. Can it be possible you are so ill or disabled as not to be able to write? Is there no one who will use a pen for you? Can you give me an explanation of your silence?
“Your Wife.
“P. S.—I hope that you will arrange for the payment of the interest which falls due on the 4th of December. My house rent does not cover this, as three hundred dollars have already been drawn and mama is quite unable to pay in advance. Becollect I have never considered this my debt. I signed the mortgage to relieve you of temporary embarrassment, and do not expect to be placed in an embarrassing position myself.
“A. H. F.”

This letter was also unanswered.

On September 17th, 1893, the defendant writes to Ms wife, after this long silence, and announces that he is about to return home; not a word to account for his failure to write to complainant for over a year, bnt asking whether “it is possible for him to obtain forgiveness for what I have not done,” and expressing obligations to the mother of his wife for her kindness to complainant and his child. This letter was received by complainant while at her mother’s house in Pine Hill, New York, where it was addressed. To it no reply was made, and after defendant’s conduct toward her none could have been expected. Defendant did not seek her out, either at Pine Hill, or later, at her house in Elizabeth, when she returned there, and she did not even see him on the street until the following March, 1894. He was in Elizabeth, at his mother’s house, as complainant knew, but he failed to go to her or provide, or attempt to provide, in any way for her support.

Meeting defendant on the street, in March, she bowed to him; this was on the Wednesday before Easter Sunday. On this same day he wrote and made the request of complainant that she should take her Easter communion with him at Christ church, and at the seven o’clock celebration; that he would meet her on the street and go with her. To this complainant properly and indignantly replied that

“before consenting to your proposition to take the Holy Sacrament with you on Sunday next I would rather have a few minutes’ conversation with you. It seems to me that after such a separation as we have had, nearly two years, I would choose to have the meeting here, and not on the street. Come here to my mother’s house at eight o’clock this evening, when I feel sure there will be no interruptions.”

Defendant went to the house of Mrs. Henderson, as requested, and, as appears from the evidence, when requested by his wife to give her some explanation of tire long time he had been away, and all the time he had been in Elizabeth and his failure to write or to come and see complainant, she testified, on being asked what did he say:

“He made no answers, except ‘Nothing,’ T don’t know,’ and then said he must go. I said, ‘But why must you go? This may be the chance of your life; it is the chance of your life. Why cannot you tell me why you have been away from me and neglected me for these years and de^ serted me?’ He said that he had to go; that he had made an appointment with the organist; that he had to go, and so he went.”

This stands without contradiction in the case. The defendant had set up in his.cross-bill that he had no opportunity to talk privately with his wife, by reason of the presence of the mother and brothers in the-room, but even this puerile excuse is set at rest by the testimony of his wife that he could, even with the mothers presence in the room, have had a private conversation with her, had.he-desired it, and after his conduct to her she could justly say that he might well and unquestionably talk of family matters before one who had been compelled to support her and her child.

After writing, some notes to his wife offering to render her assistance and proffers of service, but not doing anything for her or seeing her, she wrote him that she would like to meet him at the house of a friend and a relation of the defendant. She met him, and as she testifies, nothing particularly occurred; that nothing at all was said by him as to taking care of her, and further she testified: “I wished he-would say it when I went there; I hoped he would.” And being asked if such a thing had occurred and any provisionary offer of provision been made, what would have been-her response, she replied: “I would have gone to him gladly.”

Subsequently and on May 21st, 1894, defendant wrote to his wife announcing that he was going away on a business trip and expressing a desire to see her for a few minutes. After this his letters ceased and he made no efforts to see his wife, nor did he do anything for her in any way. Finally, in April, 1895, nearly a year having elapsed, she wrote him saying:

“In all your notes to me, over a year ago, by the by, you assure me of your anxiety to do something for me. You can do something for me, and. now. Tell me why you so suddenly ceased to be anxious to please me? Have, you forgotten that I am your wife?”-

To this letter there is no reply, and after that all communications and interviews ceased. No offer was made by defendant to resume, marital relations, nor was there any effort made by him to support or provide for his wife and child.

The testimony of her brother corroborates the testimony of the complainant that defendant never returned to her after his return from Texas, and contributed nothing for her support.

The learned vice-chancellor, in his conclusions filed in the court below, has treated this case as one of constructive desertion, and says that although the husband and wife were separated there was no willful and obstinate desertion committed by either. He imports into the case the notion that what he terms the original separation in 1891 was due to the habitual drunkenness of the defendant, and insists that while the failure of the husband to support his wife, growing out of his habitual drunkenness, may justify the wife in leaving him and prevent the separation so caused from being charged against her as a willful, continued and obstinate desertion, but that it does not follow in such a case that the husband is guilty of such desertion.

But this cause is not one of constructive desertion; the separation in 1891, due to the defendant’s loss of employment and inability to maintain his home and family, is not pretended by the complainant to have been the commencement of that actual desertion, which forced tire complainant, reluctantly, perhaps, to file the bill in this case. At this time there is m evidence in the case of the drunkenness of the defendant, nor did the complainant know why he had lost his position in New York. What she did know was that by reason thereof he was without means of support for her, and that.she was obliged to mortgage her house for an additional sum of $1,000 to pay his debts. She was compelled to accept her mother’s invitation to go to her house, while the defendant went to reside with his mother.

But there was no separation beyond that; the defendant, with the express consent of the complainant, accepted employment in Texas, and left Elizabeth with the hope of succeeding there and eventually sending for his family. His course there has. already been mentioned and the withdrawal by the complainant of her consent to his remaining longer. After a long silence the defendant, in September, 1893, returned to his mother’s house in Elizabeth, but not to his wife, nor has he ever returned to her, never offered to resume the marital.relation, nor to provide for her as in. duty he was bound, to do.

This conduct is what constitutes the actual desertion of the complainant .on the part of the' defendant. When the intention to desert became fixed in the mind of the defendant the complainant has been unable to say, but his actions and the corroborative circumstances under which the circumstances took place, can leave no doubt that such a determination was reached, tong prior to the two years before the filing of the bill in this case. As was said in this court in the case of Carroll v. Carroll, 68 N. J. Eq. 727: “It is not necessary to begin a desertion that the deserter intends to desert at the time he leaves his home. If the proof establishes that he, at any time while absent from his home, determined that from thenceforth he would desert his wife, and that determination is persisted in willfully, continuously and obstinately for the statutory period, that will constitute desertion within the statute.”

I fail to see any foundation for the suggestion made in the opinion below that there was any concealment as to the cause of their separation, so far at least as the complainant is concerned. That she may mot be able to state the reason or cause thereof, or even understand the conduct of her husband, is indeed possible, but I fail to find amffhing in her testimony indicating the suppression of any facts bearing upon her unfortunate position, and to my mind her narrative was frankness itself:

As was said by Lord Penzance, in Yeatman v. Yeatman, L. R. 1 P. & D. 489: “A wife is entitled to her husband’s society and the protection of his name and house in cohabitation. The permanent denial of these' rights may be aggravated by leaving her destitute, or mitigated by a liberal provision for her support, but if the cohabitation is put an end to without the consent of the wife and without the intention of renewing it, the matrimonial offence of desertion is, in my judgment, complete.”

I am constrained to the belief that the manifestations of affection of the defendant for his wife and child in the letters offered in evidence were absolutely insincere, and I concur with the view of Vice-Chancellor Pitney, in Coe v. Coe, 68 N. J. Eq. 157, thkt “the duty of the husband -to love and support his wife is a practical duty and not performed by a manifestation of sentiment without corresponding conduct.”

The testimony in this case cannot be read without reaching the conclusion, that the complainant was most desirous that her husband should return to her and honestly perform his marital duties towards her. She was entitled to his protection and she was entitled to support both for herself and child. Her last appeal to him, made eight years before the bringing of this suit, and ending with the words, “Have you forgotten I am your wife?” should have awakened the defendant to a sense of the duty he owed to his wife had he not been absolutely determined upon deserting her.

It was further insisted that the corroborative testimony offered by the complainant- did not extend to all the essential elements of the matrimonial oifence of desertion defined by our statute. It was held in this court, in the case of McShane v. McShane, 45 N. J. Eq. (18 Stew.) 342, that a divorce would not be granted on the unsupported testimony of the petitioner as to the cause of the desertion. The same ruling has been had in many other cases in this state. In the McShane Case there was absolutely no testimony of any kind as to the desertion save that of the petitioner, and the master, in his opinion, which was approved by this court, adverts to the fact that the petitioner had destroyed the letters written to him by his wife, which he says, in the absence of oral proof, might have been of service to him in that suit. This confirms the view that it is not the testimony of other witnesses that is requisite as corroborative evidence. If the circumstances of the case, as shown by the expressions and conduct of the defendant, together with the letters of the parties, all corroborate the testimony of the complainant, the case is complete. Such a case has, in my opinion, been made here, and I think the decree below should be reversed and the record remitted to- the court of chancery with direction to enter a decree granting the divorce as prayed.

For affirmance—Pitney, Swayze, Green—3.

For reversal—The Chief-Justice, Garrison, Fort, Garret-son, Reed, Bogert, Vredenburgh, Vroom, Gray, Dill—-10.


author: Per Curiam.

text:
    William H. Dixon, appellant, v. Josephine T. Dixon, respondent.
    [Argued March 15th, 1906.
    Decided November 19th, 1906.]
    A father who lived separate from the mother petitioned for the custody of his children, three and four years old, for the whole or a part of the time, not alleging or proving, however, that the mother was pecuniarly unable or otherwise unfit to take care of them. Petition denied, but provision made for father’s visits to them.
    On appeal from a decree in chancery advised by "Vice-Chancellor Stevens, who filed the following conclusions:
    The twelfth section of the act of 1902 (P. L. ■1902 ¶. £64) provides as follows:
    “When any husband and wife shall live in a state of separation, without being divorced, and shall have any minor child of the marriage, the chancellor, upon the said child being brought before him upon habeas corpus, shall award the custody of such child, and make such order relating thereto for the access of either parent to such child, at such times and under such circumstances as he may decree expedient.”
    Tbe ninth section provides that in making such decree-
    “the rights of both parents, -in the absence of misconduct, shall be held to be equal, and the happiness and welfare of the children shall determine the custody or possession.”
    The application in question is made by the father under these provisions. It relates to two children—William P. Dixon, Jr., born March 19th, 1902, and Barbara Dixon, born April 30th, 1903.
    The parents have separated. The father is living with his parents in New York City and the mother is keeping house in Madison, N. J., in possession of the two children. In his petition for the writ of habeas corpus Mr. Dixon prays that the custody of his children may be awarded to him for the whole or a portion of the time, or that such order may be made with respect to their care and custody as shall be just as between him and his wife.
    The wife is admitted to be in all respects a proper person to have the care of these children. Iier parents are persons of wealth and provide her with the means of maintaining a home for herself, in Madison, where they themselves live in a house near by. Under these circumstances, I do not think that, under a statute such as ours is, any precedent- can be found for compulsorily depriving the mother, even for a limited time, of the care and custody of children of such tender years. The request made on the argument that each parent should have the custody of one or both of the children for half the year appears to be entirely inadmissible. Under present conditions, and at their tender age, I do not think that the children should be separated from their mother, against her consent, even for a lesser period.
    It appears that the parents of both husband and wife reside in New York City during the winter. As I gather from the evidence, Mr. Dixon lives with his parents there and Mrs. Dixon with hers. While in New York, I think the children should be taken by their nurses to the home of their father’s parents for such reasonable time during the morning or afternoon of one or two days in each week as may accord with the father’s engagements. While the children are in Madison Mr. Dixon should be permitted to visit his children once a week, at a time mutually convenient, and at some place—either the mother’s home or elsewhere—that the parties may agree upon.

      Messrs. Lindabury, Depue & Faulks, for the appellant.

      Messrs. Collins & Corbin, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, 'for the reasons set -forth in the opinion filed in 'the court of chancery by Vice-Chancellor Stevens.'

For affirmance—Ti-ie CHiee-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill—13.

For reversal—None.


text:
    The Country Homes Land Company et al., appellants, v. William M. DeGray, respondent.
    [Submitted March 27th, 1906.
    Decided November 19th, 1906.]
    1. On a partition bill, if it appear that complainant’s title is disputed by a co-tenant, and that the objection made is not illusory, he will be required, to establish it at law before he can proceed to a-decree in equity. The bill will, in general, be retained until he does so.
    2. An easement works no dispossession of the owner.
    3. Under the act to quiet titles, the possession essential to the jurisdiction of equity is actual as contradistinguished from constructive possession. The possession of a tenant in common 'in actual possession, claiming in hostility to the complainant,, another tenant in common, whose title is, in part only, denied, is not, for the purposes of this act, the possession of such other tenant.
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Stevens, who filed the following conclusions on the hearing of the canse and' on the application'for a rehearing:
    By-his will, admitted to probate on April 17th, 1891, Richard T. DeGray deviséd’ as follows:
    • “All that lot of land and the buildings, erections, structures, machinery thereon and the appurtenances thereto belonging, which I have called the mill, pond and mill lot, * * * and which property is now leased to or held by the Paterson Silk Dyeing and Finishing Company or Mr. Claude' Greppo, I give, devise and bequeath to my son' Wm. M. DeGray, my son Bichard DeGray, and my grandson, Bichard D. Dater, absolutely and in equal shares, together with the said lease or leases, the reversions thereof and the rentals that may become due thereon after my death, and the benefits of the covenants thereof, subject, of course, to the said lease or leases and the covenants thereof; but I direct, and this devise to my said sons and grandson is subject to this express condition—that said property shall not be subject to partition, or be sold by my said children and grandchild, the devisees thereof, or any of them, until the expiration or sooner determination of the said lease or leases, and then shall only be sold at private auction to and among my said three devisees to the highest bidder of them (in case of the death of a devisee, his heirs-at-law or devisees of realty shall exercise his right to bid), and upon such auction and sale my executors, or the others, or survivors of them, as the case may be, shall execute a conveyance thereof in fee to such highest bidder.”
    Richard D. Dater died before the testator and left the two defendants Frederick II. Dater and William D. Dater.
    The lease mentioned in the will gave a term of ten years to the Paterson Silk Dyeing and Finishing Company, commencing on May 1st, 1890. The testator died on April 6th, 1891.
    On September 11th, 1903, Frederick H. Dater, being then of age, entered into an agreement to sell the above-mentioned lot and oilier property to the complainant. The agreement referred to the above-mentioned will, and required Dater, inter alia, at the option of the vendee, to call for a private auction; to bid for the property in accordance with its provisions, and to execute further conveyances. On October 6th, 1903, Frederick H. Dater executed to complainant a deed for (inter alia) an undivided one-sixth interest in the property in question. Complainant thereupon commenced this partition suit. lie afterwards amended the bill by inserting in its third paragraph a clause to the effect that since its purchase “it has been and is now in the peaceable possession of the equal, undivided one-sixth interest and estate in fee-simple absolute in said tract of land and premises.” On this allegation it prayed for a decree removing the cloud created by the provisions of the above devise, as well as for a decree in partition.
    The question is whether the complainant is entitled to partition until a- court of law has passed upon its title.
    The complainant claims that the devise to Richard Dater was absolute and in law unconditioned, the restraint upon alienation being, as lie insists, void. The defendant contends that the .restraint is valid, being only a partial restraint, both as it respects persons and modes of alienation and being limited in point of lime.
    It is entirely settled that if title to land is in dispute, and the validity or non-validity of the title claimed must be determined _ by the application of legal as contradistinguished from equitable rules, the complainant will be required to establish it at law before he can proceed here, but this court will, in general, retain the bill until he does so. Vreeland v. Vreeland, Jfi' N. J. Bq. (J¡. Dick.) 38Sj Blockbower v. Eanouse,S\0 N. J. Bq. {5 Dick.) ^81. The rule itself is not disputed, but it is said that if the court Can see that there is no valid objection to the title—that the objection made is an illusory one'—it may proceed to decree partition. This is doubtless true. There must be a real question, to be determined by a court of law, if the complainant is to be required to go there. ' But there is such a question here. Counsel differ both as to the proper construction of the clause in question and as to the law. Complainant’s counsel says that the clause restrains a sale by all three devisees together, and not a transfer of his interest by one of the devisees to an outsider. Defendants’ counsel says it restrains a sale in tota, and this latter view would seem to be more in accordance with testator’s intention. I am certainly unable to say that complainant’s construction is so clear that there can be no fair doubt about it. Again, the restraint appears to be limited in point of time. It would seem not to extend beyond the period of three lives in being. If it does, it does not obviously do so. This raises the question whethersa general restraint, limited to a period of less than ten years, and a partial restraint, limited to a period not exceeding three lives in being, is contrary to the public policy of this state, and this question, it is admitted, has not been passed upon.
    Furthermore, the partial restraint thus limited in time is also limited in respect to the mode of sale, viz., private auction, and of the persons who may bu3q viz., the three devisees and their heirs. The question is whether the sale may be legally limited to a class of persons less than the whole number of possible buyers, and if so, whether the class here specified -is too narrow. The very elaborate and exhaustive briefs of counsel prove, almost to the point of demonstration, that these questions are not to be solved off-hand; that no decree can be made without a very care=ful consideration of them.
    In Doe v. Pearson, <6 East 118, the devise was to A. and H. and their heirs, as tenants in common, on condition that in case they or either of them should have no issue, they or she' having no issue should have no power to dispose of her share except to her sister or sisters, or their children. In re Macleay, L. B. 20 Eq. 186, the devise was “to my brother J., on condition that he never sells out of the family.” Both of these devises were sustained. The elaborate opinion of Sir George Jessell in the latter is cited, and without disapproval by Chancellor Magie in Feit v. Richards, '61 N. J. Eq. (19 Dich.) i16; see, also, Den v. Blackwell, 15 N. J. Law (,8 Gr.) ,886; Cornelius v. Ivins, 26 N. J. Law (2 Dutch.) 376, 386. On the other hand, Doe v. Pearson and In re Macleay have, been criticised both in England and America. Gray Res. Al. ¶¶ 31, 11,-17 et s.eq. Late English cases are In re Rosher, 26 Ch. Div. 801; Dug dale v. Dug dale, ■38 Ch. Div. 178; In re Elliot, 2 Ch. Div. (1896) 358.

    In this state of the authorities.it is apparent that a real question has been raised by the answer.
    But it is said by counsel that even if there be such a question, complainanPs title is equitable, and that consequently this court is competent to decide it. It seems to me too clear for argument that what we are here dealing with is a legal and not an equitable title. If complainant has not a legal title, he has no title. If the restraint on alienation be bad, complainant has a perfect legal title to one-sixth. If it be good, either the attempt to alien was entirely nugatory, or else Frederick has forfeited the interest devised to him and has only that undivided one thirty-sixth to which, he would become entitled as one of the heirs-at-law-of the one-sixth interest so forfeited.
    It is further contended that this is not only a partition bill, but one to quiet title under the act (Gen. Stat. p. 3186), the allegation of the bill being that complainant is in peaceable possession. 'It appears, as already stated, that a part of the land was leased by the testator in his lifetime to the Paterson Silk Dyeing Company by a lease which expired on May 1st; 1900. Prior to its expiration it was renewed by the DeG-rays, by Frederick H. Dater (then a minor), and by the guardian of William D. Dater, for a further term of years not yet expired. After .Frederick H. Dater had executed the deed to the Paterson Silk Dyeing Company that company paid Frederick’s share of the rent to complainant, although notified by the DeGrays not to do so. The contention is that the possession of a tenant for years is the possession of the owner of the freehold (^. Kent Com. *836), and that consequently the complainant, being now in possession of the rents, is constructively in peaceable possession of the land, and is thus qualified to avail itself of the procedure given by'the above statute. I do not think it necessary to decide whether this contention is sound, nor whether, if sound, complainant is incapacitated from suing in ejectment under our act, which extends in terms to suits brought by tenants in common (2-Gen. Stat. p. 1285 ¶ 21+), for the rule established by our courts of last resort requiring legal questions to be solved by a legal tribunal is imperative in all cases which admit of its application. Here the tract given by the will consists of thirteen and fifty-two hundredths acres, while the land leased consists of only two and seventy-five hundredths acres, to which is attached certain water rights. The complainant has never been in actual possession of so much of the land as is not leased. The evidence shows that the DeG-rays have exercised acts of - ownership-over that part to the exclusion of the complainant, whose title they denjr. There is not the least difficulty in complainant bringing an action of ejectment in respect hr that, and such an action will finally settle the question in controversy between the parties.
    The defendants say that Frederick Dater’s one-sixth share was given on a condition which was forfeited, and that the share went to the heirs-at-law, of which Dater is one. They admit that on this basis he is entitled to an undivided one thirty-sixth. It is obviously a case in which tire bill should be retained to enable complainant to establish the title which he claims in a court of law.
    Application for a rehearing has been made to me in this case on. the ground that I have misconceived both the law and the facts. The application was argued with so much apparent conviction' that it seems proper, in denying it, to state, as briefly as possible, the reasons for doing so, as far as they are not stated in the opinion already written.
    I think the opinion shows very clearly that the question involved is an unsettled question of title to land, and that :.t is a purely legal, and not an equitable question. From this :.t follows, as a matter of course, that it must be determined by a court of law (Bart v. Leonard, N. J. Eq. (15 Stew.) -416), unless the complainant is able to maintain the jurisdiction' junder the act to quiet titles. The jurisdictional fact, under this act, is peaceable possession. Accordingly, it is contended that peaceable possession by complainant of the entire locus in quo has been established by the proofs.
    I say entire because there is an effort apparent throughout complainant’s argument to identify the land leased to> the silk dyeing company with that devised by the eleventh paragraph of Richard DeGray’s will. It seems to me quite clear that the plots are not identical. The lease, in terms, demises two- and seventy-five hundredths acres. The will gives thirteen and fifty-two hundredths acres, of which the two and seventy-five hundredths acres are a parcel; both parcels of land are described by metes and bounds, and those metes and bounds are wholly different. There is not the slightest difficulty in plotting them on the ground. It is true that the will inaccurately states that the plot devised is “now leased to- or held by” the silk dyeing company, but this is a manifest mistake—a case for the application of the maxim falsa demonstratió non nocel. Evens v. Griscom, J/2 ÍV. J. Law (IS TV.) 579. It would not be for the interest of either side to contend otherwise. It is clear that this falsa demonslraiio has no effect whatever upon the leasehold interest granted several years previously.
    Now, just at this point comes in the fallacy which, as it seems to me, pervades the whole of the argument. The tenant, it is said, has attorned to complainant for an undivided one-sixth of the land because it has paid one-sixth of the rents. Possession of the rents, even against protest, is equivalent, it is said, to actual peaceable possession of the land. Being in such peaceable possession, complainant cannot therefore bring ejectment. Conceding this argument to be sound as to the demised land, it obviously must be limited to that which is demised. This is so plain that counsel is forced to contend that the lessor in fact demised the whole of the thirteen and fifty-two hundredths acres, although he in terms demised only two and seventy-five hundredths acres. His specific contention is that because the lessor gave, certain easements in that part of the thirteen and fifty-two hundredths acres not in terms demised, and particularly an easement in the water lying on and flowing through the larger tract, he really demised the whole. The eases that he cites prove just the opposite. Thus, in Perrine v. Bergen, 1N. J. Law (3 Gr.) 855, Justice Ford says: “Even an easement works no dispossession of the owner. The possession still remains in him, as much as if the easement did not exist.” And in Burnet v. Grane, 56 N. J. Lanv (37 Vr.) 385, an ejectment suit, the chancellor, speaking for the court of errors and appeals, says: “The right to a fee and the right to an easement in tire same estate are rights independent of each other and may well subsist together ivhen vested, in different persons. Each can maintain an action to vindicate and establish his right,” &c. This last case is conclusive authority on the point that ejectment may be brought notwithstanding the existence of an easement. Now, I am quite unable to find in the lease anything that gives more than an easement in so much, of the entire tract as is not the subject of specific demise. This being so, I do not see why ejectment may not be brought in respect of the land not included in the demise. The Practice act makes provision for the case of a person suing for an undivided part. If complainant sues for an undivided one-sixth of the land not demised and is able to prove his title to it, he will have judgment. Section 24 of the Ejectment act requires the defendant, if he denies ouster, to admit the right of the ■-plaintiff to an undivided share, stating what- share. If the admission is made in terms satisfactory to the plaintiff, he attains the object of his suit and may then proceed with his case here. If the admission is only of a less interest than plaintiff claims, the case will be tried at law and the court of law will determine the amount of the interest. “The plaintiff,” says Justice Haines, in Brown v. Combs, 129 N. J. Law (i5 Dutch.) 3&, 'Lk~, “can only recover such part of the premises as his proofs have shown him entitled to, and if it ■appears that he is entitled to an undivided part, he shall have verdict and judgment for such part.”
    But the complainant says, further: We are in possession for the reason that the defendants are in possession. The possession of one tenant in common is the possession of all. Being in possession, we cannot bring ejectment. If possession always followed the title, then ejectment would not be possible as between tenants in common'—a proposition, of course, untenable. The fact in this case is undeniable that aside from its constructive possession of that part which has been under lease the complainant has had no possession in fact. Actual possession is essential to the jurisdiction under the act to quiet titles. Said Justice Depue, in Sheppard v. Nixon, LB N. J. Eq. (16 Stew.) 63“Under this statute, possession in fact, as distinguished from that constructive possession which in ejectment suits arises in virtue of the legal title, is essential to the jurisdiction of the court.” And, further on, he says: “The defendant having in his answer made denial of possession by complainant, it was incumbent on complainant to establish that fact by proof.” Here the complainant has not attempted to establish possession in fact of the part not demised. It has not been in the joint occupation of the land and it has not participated in the issues of it. The proofs, if they show anything, show that defendants have, as far as lay in their power, excluded complainant from the possession and refused in any way to recognize its title. Under these circumstances it seems to me that for this court to assume jurisdiction would be to disregard the rule laid down by the court of errors and appeals in Sheppard v. Nixon. As complainant’s title depends upon the proper construction of the will of Richard I. DeGray, and does not appear to hinge on any disputed question of fact, it might be a convenient thing for this court to construe this will, just as it might have been a convenient thing for this court, in the first instance, to have construed the deed in the Pipe Line Case (Pipe Line Co. v. Dela

      ware, Lackawanna and Western Railroad Co., '82 N. J. Law {88 Yr.) 254), but acting, under the well-settled, rule it declined to take jurisdiction until the legal question was first settled. After that was done, it applied the equitable remedy. Delaware, Lackawanna and Western Railroad Co. v. Breckenridge, 5'7 N. J. Bq. {12 Dick.) 154; 58 N. J. Bq. {18 Dick.) 581. No distinction has been taken in this state between questions of construction of documents and questions of fact in dispute. The court of errors and appeals-has very recently applied the rule to partition cases {Slockbower v. Kanoúse, 50 N. J. Bq. {5 Dick.) 481, and the chancellor, in a still later case {Hanneman v. Richter, 88 N. J. Bq. {17 Dick.) 886), had under consideration a partition depending upon the construction of a will.
    I am at a loss to see why the cases cited do not apply to this case. If I am wrong in my conclusions, the court of review will have before it all the facts and can finally dispose of the whole matter.

      Mr. Preston Stevenson and Mr. Gilbert Collins, for the appellants.

      Mr. John B. Humphreys, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion delivered in the court of chancery by Yice- Chancellor Stevens, on the hearing of the cause, and in the supplemental . opinion delivered by him on the application for a rehearing of the cause.

Bor affirmance—-The Ci-tiee-Justice, Garrison, Fort, Garret-son, Hendrickson, Pitney, Swayze, Reed, Bogert, Yre-DENBURGH, YrOÓM, GREEN, GRAY, DiBL—14.

Bor reversal—None.


text:
    Ocean City Association et al., appellants, v. David P. Cresswell et al., respondents.
    [Submitted March. 27th, 1906.
    Decided November 27th, 1906.]
    Twenty years’ possession of real estate, held by a mortgagee under his mortgage, without payment or a tender thereof by the mortgagor, vests a title in the mortgagee, which he can be decreed to convey in a suit for the specific performance of his contract for sale thereof.
    On appeals of Ocean City Association and Martha Ann Gandy from a decree in chancery advised by Vice-Chancellor Bergen, who filed the following conclusions:
    I think I can determine this question now as well as any other time. It has been fully argued and the facts pretty well threshed out by counsel. As I understand this case, Martha A. Gandy, sometimes called Blakeman, claimed to own a tract of land in Cape May county, claiming to have a sufficient title to it to make a conveyance, and in 1897, on the 18th day of May, she entered into a contract, by the terms of which she agreed to convey to- John Gandy, David Cresswell and Charles Miller the real estate, in- that contract fairly well described. By tire terms of the contract the deed was to be delivered and the money paid on the 1st of Jrdy, 1897. That element of the contract appears to have been waived by both parties. So- far as this case shows, there was no tender made according to the strict terms of the contract, nor was any payment made. Shortly after that and in the month of September, Mrs. Gandy, having had a deed prepared, described here as a quit-claim deed, claims to- have tendered it to Mr. Cresswell, one of the parties named in the agreement.
    The occurrences subsequent to that seem to be in doubt, but I think that the weight of the testimony shows that she took 'the deed there to tender it, and that.Mr. Cresswell complained that the deed was not \yhat it ought to he in all particulars, and that there was some question about the title. That the deed was then carried to Mr. Snyder, a lawyer, as I understood from the evidence, in Camden, but referred to by counsel as being from Philadelphia, and that she left the deed there, and said: “Now, I want this deed to be recorded when this law suit is settled.”
    • The record of that law suit has been offered in evidence, and from it it appears that there was a dispute as to her title, made by some persons against whom Mrs. Gandy,in that year (1897) filed a bill for the purpose of quieting title. That case was not disposed of until the year 1900.
    In the meantime, John Gandy, on the 29th day of May, 1899, sold his interest to a man named Harvey Lake, who, it is admitted, was not acting for himself, but as agent for the complainant, the Ocean City Association. Two days after that, from a paper produced here, it appears that Martha A. Blake-man, in writing, admitted that she had received from Harvey Lake $475, full payment of all her right, title and interest in and to a certain mortgage assigned by Robert Matlack, on a certain tract of marsh land situate in Ocean City, N. J., bounded by the beach thoroughfare, the middle thoroughfare, and all her right, title and interest in and to said land. The description in that receipt is the property in controversy. It is the property which she had agreed to convey.
    So we find that within two days after the Ocean City Association became a part owner of this contract—became one of the person's in equity entitled to have it enforced—they made the payment. They paid substantially the sum of money that the contract required to Be paid, and I think there can be no doubt that the payment was made by the Ocean City Association for the benefit, not only of themselves, but of the other two persons interested in this contract, and that they had a right to call upon these two persons at any time to contribute their proportionate share of the amount -paid.
    I do not attach any importance at all to the notion that this was a separate, independent agreement. If that was so^ the Ocean City Association never would have had Mr. Lake, on the 29th day of May, buy into this contract, if they expected two days afterward to get an independent contract of their own. If they had on that day believed that this contract had fallen, as counsel stated, by the wayside—had no- life or existence— they would not have bought into it. They would not have undertaken to buy out the interest of John Gandy. To my mind this is the interpretation: They bought into that contract, and they expected, when the law suit was settled, to have that contract performed, and to avoid any question about the legality of it they advanced the money and paid it, and, as I have said, in equity, the other parties to the contract can be made to contribute.
    The next step in the proceedings was the sale by Mr. Charles D. Miller to John A. I-Iiggons. That happened on the 3d of March, 1902. Mr. Miller was another of the three parties who had become bound- by this contract to purchase this property and pay for it. Mr. Miller sold out his interest to Mr. Higgons, and manifested that by a deed conveying to Mm one-third interest in all of 'this property. The conclusion which I have reached is that Martha Gandy, or Blakeman, is bound to make a deed—a proper deed—for this property. My notion about it was that perhaps this quit-claim deed would answer the purpose, but upon examination I find that it releases and quitclaims her right as assignee of Charles F. Campbell, and Cooper, Hendrickson & Company, by their attorney, R. C. Mátlack, in and to that certain tract of land, &e., described in a certain mortgage. Her right does not depend upon any interest acquired as assignee of Charles F. Campbell. Her right to convey, as developed here, depends upon her possession of more than twenty years under the mortgage. It is perfectly well-settled, in this state, unless rebutted in some way, that that conveys a title which would be good in law.
    Now, while this agreement, and perhaps the pleadings, in this case do not contemplate a conveyance to persons not a party to the original contract, I think that as the defendant Martha Gandy has been paid the consideration price—paid by one of the persons who comes into this contract by way of assignment— that in equity that person, having made a payment, ought to be incorporated into this contract, and the deed ought to be made directly to the Ocean City Association and to Mr; Higgons and Mr. Cresswell, each for an equal undivided one-third part of the property, and if you will prepare a decree to that effect I will advise -it. The decree should also direct that Mr. Higgons and Mr. Cresswell shall pay to the association whatever is their proportionate share. The association is entitled to interest from the time they paid their money.

      Mr. Henry F. Stock-well and Mr. 8. Stanger Iszard> for the appellants.

      Mr. Thomas L. Raymond and Mr. Andrew Van Blarcom, for the respondents.
   Per Curiam.

We concur in the views of the vice-chancellor, expressed in the opinion delivered by him in the cause. The decree advised by him, however, needs modification. Its mandate is that the defendant Martha Ann Gandy execute and deliver to the defendants Cresswell and Higgons, and the complainant, the Ocean City Association, a good and sufficient conveyance, of the property in dispute, conveying to each of them an equal undivided one-third part thereof, with the usual covenants against encumbrances, and that she also deliver to them, at the same time, the possession of the said premises; and that, thereupon, Cress-well and Higgons each pay to the complainant their contributive share of the purchase-money advanced by it to Mrs. Gandy, with interest. The decree fails to take into account the fact, disclosed by the admission of counsel for the complainant, made to the vice-chancellor during the trial of the cause, that a conveyance of the property was made to the complainant by Mrs. Gandy pendente lite. The effect of this conveyance was to pass the title out of Mrs. Gandy and vest it in the complainant— one-third for its own benefit and two-thirds in trust for the defendants Cresswell and Higgons. The decree, therefore, should have adjudged that the complainant held an undivided one-third of the premises in trust for Cresswell and an undivided one-tliird in trust for the defendant Higgons, and directed the complainant to execute its trust by making a proper conveyance of an undivided third part of the premises to each of them upon tender by them to it of the monej'S tire payment of which they are required to make by the decree. The time within which the tender should be made should also be fixed by the decree.

It does not appear, from tire admission of counsel above referred to, whether or not the deed made by Mrs. Gandy to the complainant was, in its form, such a conveyance as the parties to the original agreement were entitled to receive from her. If it is less comprehensive in its grant and in its covenants than they had a right to require from her, then the decree should also adjudge that Mrs. Gaudy execute a further convejTince to' the Ocean City Association, Cresswell and Higgons, in such form as to completely execute her original agreement.

There must be .a formal reversal of the decree in order that it may be corrected by the court of chancery in the respect indicated. But as the error has crept in through the failure of counsel to> remind the vice-chancellor of the fact of the conveyance pendente lite, which had evidently escaped his memory, and as the respondents have succeeded in this court upon the merits of its controversy, they are entitled to costs, notwithstanding the formal reversal for correction.

For affirmance—None.

For reversal—The Ot-iiee-Justice, Garrison, Fort, GarRETSON, IÍENURTCICSON, PITNEY, SwAYZE, ReÉD, BoGERT, VrE-DENBURGH, VrOOM, GREEN, GRAY, DlLR—14.


text:
    Cecelia Klemmer, appellant, v. Edgar L. Kerns, respondent.
    [Argued March 13th, 1906.
    Decided November 19th, 1906.]
    Though the assumption of a mortgage debt by a subsequent purchaser is absolute and unqualified in the deed of conveyance to him, it will be controlled by a collateral contract between him and his grantor, not embodied in the deed, and the mortgagee cannot enforce the contract of -assumption appearing- in the deed unless the grantor could.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Bergen, who filed the following conclusions:
    As this ease has been fully argued, and is in a very narrow compass, I think that I will dispose of it now.
    The bill is filed for the purpose of requiring the defendant, Kerns, to pay a deficiency existing between the amount due on a mortgage and the price for which the property sold under foreclosure of it.
    The claim is based upon a clause in a deed made by Charles E. Napp to E. L. Kerns, in which the grantee assumes the payment of a mortgage indebtedness upon the property, part of which is represented by the foreclosed mortgage.
    I have before me the case of Grow óü v. Hospital of St. Barnabas, reported in N. J. Bq. (-X'g G. B. Gr.) i650, and will read a part of the opinion to be found on ¶. 636: “But the right of the mortgagee to this remedy does not result from any fixed or vested right in him, arising either from the acceptance by the subsequent purchaser of the conveyance of the mortgaged premises, or from the obligation of the grantee to pay the mortgage debt as between himself and his grantor. Though the assumption of the mortgage debt by the subsequent purchaser is absolute and unqualified in the deed of conveyance, it will be controlled by'a collateral contract made between him and his grantor which is not embodied in the deed.” These words, I think, establish the rule which must control this case.
    It appears, and I think 1 would not be justified in any other finding under this evidence, that Mr. Napp, the owner of the property, and who had assumed the payment of this mortgage indebtedness, conveyed it to the defendant, Kerns, not as an absolute conveyance, but as between themselves, to secure to Kerns the payment, not only of a debt then existing and due to him from the grantor, Napp, but for such other moneys as he might disburse in the holding and protection of the property for Mr. Napp.
    So we have this situation: That, as between Mr. Napp and Mr. Kerns, there was a collateral agreement, by the terms of which Mr. Kerns was to hold this property for an indebtedness due or to accrue from Mr. Napp to him, and assumed the pajrment of the mortgage debt, although the conveyance was absolute on its face.
    Manifestly, under such a condition, Mr. Napp could not enforce this assumption by a bill on his own behalf against Mr. Kerns, nor compel him to pay the deficiency even if, because of his prior assumption, he had been compelled to pay the money.
    That being the situation, I am at a loss to see how the present complainant’s position, whose right is only one of subrogation, would be any greater or higher than that of Mr. Napp. If Mr. Napp could not enforce it, naturally the complainant has no other or greater right.
    The result of which is that I feel constrained to advise that this bill must be dismissed and the defendant allowed a decree.

      Mr. John 8. Van Dike, for the appellant.

      Mr. George W. Macpherson, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery by Vice-Chancellor Bergen.

For affirmance—The Ohiee-Justice, Garrison, Fort, Garretson, Hendrickson, Swayee, Eeed, Bogert, Vredenburgi-i, Vroom, Green, Dill—12.

For reversal—None.


text:
    Arthur H. Stiles et al., appellants, v. Mary S. Galbreath et al., respondents.
    [Argued March 8th, 1906.
    Decided November 19th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Grey, whose opinion is reported in 69 N. J. Eq. 222.

      Mr. Eli H. Chandler, for the appellants.

      Mr. Thomas E. French, for the respondent Morse-Williams Company.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery by Vice-Chancellor Grey.

Two questions of pleading that are not discussed in the opinion of the learned vice-chancellor are—first, whether the answer of the defendant Morse-Williams Company, exhibited by way of cross-bill against the complainant, was an effective pleading by which to draw into controversy matters embraced in the foreclosure suit and settled by the decree in that case; and second, whether relief from such prior decree can properly be had otherwise than by proceedings in the nature of a bill of review.

These questions, which are patent upon the face of the vice-chancellor’s opinion, have .ceased to- be' substantial, and are mentioned now in order that our adoption of that opinion shall not be taken as deciding either of these points. They were not insisted upon by the complainants in1 the court below and were not urged by them as appellants jn this court. The suit thus permitted to proceed resulted in a decree that does exact justice. Under these circumstances this court will not, of its own motion, consider-matters that have no bearing upon the merits of the appeal save for the purpose of disavowing any adjudication with respect to them.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Vrbdenburgi-i, Vroom, Green, Gray, Dill—13.

For reversal—None.


author: .Per Curiam.

text:
    Eureka Fire Hose Company, respondent, v. Eureka Rubber Manufacturing Company, appellant.
    [Argued March 8th, 1906.
    Decided November 19th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported, in <6& N. J. Eq. 159. ■ .

      Mr. John’V. B. Wicojf, for. the appellant.

      Messrs. Crouse cC Perhins, for the respondent.
   .Per Curiam.

Tbe decree appealed from is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Emery.

For affirmance—Garrison, Port, Garketson, Hendrickson, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom, Gray—10.

For reversal—None.


text:
    Louise Urich, appellant, v. Thomas P. Watts et al., respondents.
    [Submitted March 27th, 1906.
    Decided November 19th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 69 N. J. Eq. -60%.

      Mr. Frank Voigt and Mr. Frank E. Bradner, for the appellant.

      Mr. Charles B. Snyder and Mr. Edmund Wilson, for the respondents. . , ,
   Per Curiam.

The decree, appealed from will be affirmed, for the reasons .set forth in the opinion filed in the court of chancery by VicenChancellor Emery.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    Edward S. Campbell, receiver, &c., of the Middlesex County Bank, respondent, v. The Perth Amboy Shipbuilding and Engineering Company et al., appellants.
    [Argued March 14th and 15th, 1906.
    Decided November 19th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Pitney, whose opinion is reported in W N. J. 'Eq. 40.

      Mr. Adrian Lyon, for the appellants.

      Messrs. Lindabury, Depue & Faulks, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Pitney.

For affirmance—The Chief-Justice, Garrison, Garretson, Hendrickson, Swayze, Reed, Bogert, Vredenburgh, Vroom, Green, Gray, Dill—12.

For reversal—None.


text:
    Thomas P. McKenna, respondent, v. Richard F. Corcoran et al., appellants.
    [Argued March 16th, 1906.
    Decided November 19th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 70 N. J. Eq. QSS7.

      Mr. Charles J. Roe, for the appellants.

      Messrs. Collins & Corbin, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery by Vice-Chancellor Garrison.

For affirmance—The Chiee-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vredeneurgh, . Vroom, Green, Gray, -Dili—14.

For reversal—None.


text:
    George F. Perkins et al., respondents, v. Trinity Realty Company, appellant.
    [Piled November 23d, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 69 N. J. Eq. 7m.

      Mr. Frank Durand, for the appellant.

      Messrs. Tennant •& IiaighL, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery by Vice-Chancellor Garrison.

For affirmance—The Ci-iiee-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vric-DENBURGI-I, VrOOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    Wesley B. Porch v. Agnew Company.
    [Submitted March 27th, 1906.
    Decided November 19th, 1906.]
    On appeal of Clarence M. Busch, from orders adjudicating certain claims against the defendant, an insolvent corporation, advised by Vice-Chancellor Grey, whose opinion is reported in 7'0 N. J. Eq. -828.

      Mr. George A. Bourgeois, for Millegan & Weber.

      Mr. William M. Clevenger, for the Du Parquet Company.

      Messrs. Thompson & Cole, for C. M. Busch.
   Per Curiam.

The orders of the court of chancery appealed from are affirmed, with the remark that the observations of the learned vice-chancellor respecting the influence of sections 15 and 28 of the Mechanics’ Lien act (P. L. 1\898 p. 550) upon the relative priority of the mechanics’ lien of the Du Parquet & Mense Company and the mortgage of C. M. Busch were not necessary to a decision of the question involved.

Hpon the soundness of these observations opinion is expressed.

For affirmance—The Ci-iiee-Justice, Garrison, Port, Garretson, Hendrickson,- Pitney, Swayze, Reed, Bogert, Vre- . DENBURGH, VbOOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    In the matter of the probate of the last will and testament of Mary Hynes, deceased.
    [Submitted March 27th, 1906.
    Decided December 12th, 1906.]
    On appeal of Roger Ryan from a decree of the prerogative court advised by Vice-Ordinary Bergen, whose opinion is reported in @9 N. J. Eq.

      Mr. James A. Gordon, for the appellant.

      Mr. Harvey F. Carr, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons set forth in the opinion filed in the prerogative court by Vice-Ordinary Bergen.

For affirmance—The Chief-Justice, Harrison, Harretson, Hendrickson, Swayze, Reed, Bogert, Vredenburgh, Vroom, Green, Gray, Dill—12.

For reversal—None.


text:
    Thomas W. Daley, appellant, v. Somers Lumber Company et al., respondents.
    [Argued March 21st and 22d, 1906.
    Decided December 12th, 1906.]
    On appeal from a decree of the conrt of chancery advised by Vice-Chancellor Grey, "whose opinion is reported in TO N. J. .Eq. 3J$.

      Mr. Charles C. Babcock and Mr. William, Clevenger, for the appellant.

      Messrs. Thompson & Cole, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion filed in the conrt of chancery by Vice-Chancellor Grey.

For affirmance—The Chibe-Justice, Garrison, Garretson, Hendrickson, Swayze, Reed, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill—12.

For reversal—None.


text:
    Morris and Essex Railroad Company et al., respondents, v. Mayor and Aldermen of Jersey City, appellants.
    [Submitted July 6th, 1903.
    Decided June 20th, 1904.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Morris and Essex Railroad Go. v. Jersey City, 68 N. J. Eq. (18 Dick.) JJ>.

    Submitted for appellants by Mr. George D. Record, corporation counsel of Jersey City; Mr. Robert Carey, corporation attorney of Jersey City, on the brief in chancery of Mr. Allan L. McDermott. ,

      Messrs. Bedle, Edwards & ■Thompson, for the respondents.
    Note.—Decision omitted from its proper place.—Rep.
   Decree affirmed by the following vote:

For affirmance—The Chiee-Justice, Fort, Hendrickson, Pitney, Vroom, Green, Gray—¶.

For reversal—Dixon, Garrison, Vredenburgi-i—3.


author: Magie, Chancellor.

text:
    Annie Taylor et al. v. George Gardiner Draper et al.
    [Argued March 2d, 1906.
    Decided May 15th, 1906.]
    A father, who was one of five tenants in. common, agreed with his co-tenants to mate a voluntary partition'of lands. At his request, his share was conveyed to him in trust for his two infant children by deeds whereby he took the legal title in. fee and his children the equitable title. The deed was recorded, and afterwards the trustee, reciting that he was trustee, conveyed the lands to secure money borrowed by him. The complainant, claiming title under this deed, seeks a decree against the infant cestui que trustent.—Held, (1) that the father’s request for, and acceptance of, the deed in trust was a declaration of trust in favor of and an advancement to his children; (2) that such an advancement may be sustained on the consideration of natural love and affection; (3) that in the absence of proof raising suspicion as to the advancement the cestui que trustent are not required to establish that the father knew that by the transaction he reserved no rights in the land and no power to revoke the trust; (4) that if that burden was cast on them, it is made out by the proofs produced by the complainant; (5) that the complainant acquired no title by her deed to question the title of the infant cestui que trustent.

    On bill to quiet title.

      Mr. Edwin B. Goodell, for the complainants.

      Mr. Ilarry N. Beeves, for the defendants.
   Magie, Chancellor.

The complainant Annie Taylor (with whom is joined as complainant her husband, David C. Taylor) files this bill, asserting that she has some title to lands in Montclair, in the county of Essex, of which she has the peaceable possession, and claiming to have a good title thereto, to which lands she avers the defendants claim, or are reputed to have, some title, no suit or action being pending to test the validity thereof.

The prayer of the bill is that the rights of the parties may be determined by a decree, and that the complainant Annie Taylor may be decreed to have a perfect title. There is also a prayer for general relief.

The defendants are George Gardiner Draper and Isabella Carter Draper, two infants under the age of twenty-one years, who have appeared by their mother, as guardian ad litem. She has filed an answer submitting to the determination of the court the rights of the infants.

The real point in controversy will be disclosed by the following statement:

About March 30th, 1892, certain lands in Montclair, including those now in question, were owned by five tenants in common, viz., Charles B. Draper, his brother, Frank B. Draper, and his sisters, Georgia A. Draper, Rebecca B. Draper and Ruth C. Draper. At that time the tenants in common agreed to make a voluntary partition of the said lands. This was effected by conveyances of a somewhat singular character. By a deed dated March 30th, 1892, Charles B. Draper and his wife conveyed to his three sisters his interest in all the said lands. By a deed of the same date, Frank B. Draper conveyed to his three sisters his interest in all the said lands. Then, by a deed dated on the 31st of March,* 1892, the three sisters conveyed the particular lands in question to Charles B. Draper. This deed, however, did not convey those lands to Charles B. Draper in his own right, but to him as trustee for George Gardiner Draper and Isabella Carter Draper, his children, the defendants in this suit. The habendum clause of the deed reads thus:

“To have and to hold all and singular the above mentioned and described premises unto the said Charles B. Draper, his heirs and assigns forever, in trust, nevertheless, for the said George Gardiner Draper and Isabella Garter Draper, thejr heirs and assigns forever.”

The consideration named in this deed to Charles B. Draper was-the sum of one dollar, but from the statements of the bill, and from the proofs, it is made clear that its real consideration was the conveyance which, on the previous day, he had made of his interest in all the lands to his sisters. If, upon ihat consideration, his sisters had conveyed the lands in question to him in fee, he could have conveyed them to another person in trust’ for his children, or he could have declared a trust in favor of his children. A conveyance to the children themselves, or to a trustee'for their use, or a declaration of trust in their favor, could be supported on the consideration of natural love and affection. What was done was substantially equivalent, because he took the title to the lands which were to be his share in the partition as a trustee, on a trust in favor of his children. It was a plain advancement to his children of a portion of his property. As Charles B. Draper and Frank B. Draper had conveyed to their sisters their individual interests, the deed from the sisters to Charles vested him with the entire legal title to the lands thereby conveyed. The purpose to do this probably explains the conveyancing resorted to, and which has been characterized as singular. If each of the tenants in common had simply released his or her interest in the lands in question to Charles, upon the same trusts declared in the deed from the sisters, the trusts would have affected only four-fifths of the title. With respect to the other fifth, Charles would have been obliged to declare a trust in order to effect the purpose which was effected by the conveyances recited.

I therefore conclude that it is not open to dispute that by the deed to Charles B. Draper, while the legal title to the lands became vested in him, the equitable title in fee was vested in his children. Their title; thus created, is obviously good, unless it is open to attack for the reasons urged in this cause.

It is first contended that Charles B. Draper held no funds belonging to his children upon the possession of which, or upon the obligation arising from which, he created this trust. The proofs relied on come from his widow and one of his sisters, whose testimony cannot be deemed to go farther than to declare their ignorance of the existence of any moneys belonging to the children in the hands of their father. But if it should be admitted to establish the fact, it will not be effective to support the claim that the creation of the trust was without consideration. The' claim ignores the power of a parent to make advancements to his children and the effect of a consideration of love and affection.between parties of the same blood.

The title of the defendants is not open to this attack.

It is next contended that, assuming that the transaction indicates a gift to the infant defendants, there is cast upon them a burden of establishing in this cause, and by proofs, that their father, the trustee, at the time he accepted the deed in trust, was aware that there was no right reserved to himself by that deed, and that the deed was irrevocable.

I have not been referred to cases, nor have I discovered any cases, which cast such a burden upon children to whom a father has conveyed land by way of advancement, and on a consideration of natural love and affection, unless circumstances are proved exciting suspicion of the unfairness of the transaction. The right acquired by children under a declaration of trust by a father, made in their favor for such a consideration, differs in no respect from that which would result from a deed to them. When a voluntary settlement had been completely executed, though no power of revocation was reserved, it was held, in the court of errors that it could not be annulled except with the consent of all the cestui que trustent. Crue v. Caldwell, 52 N. J. Law (28 Vr.) 215. See Gulick v. Gulick, 39 N. J. Eq. (12 Stew.) 401. In James v. Aller, 62 Atl. Rep. 427, the court of errors affirmed so much of a decree of this court as denied relief to a father claiming to avoid gifts both of real and personal property to his children, although the donor reserved no right to himself and no power of revocation. The remaining part of the decree, which gave relief to the father in respect to a further gift which practically stripped him of all his accumulated property, because such gift was deemed improvident, was reversed by the court of errors, although there was no reservation of a power to revoke. .

In many cases involving the validity of gifts, such proofs as are claimed to be necessary in this case to sustain the defendants’ title have been held to be required, but in every case that I have examined there were special circumstances tending to throw doubt upon the transaction, as, e. g., where the gift has been obtained from an aged or infirm-donor (Corrigan v. Pironi, 48 N. J. Eq. (3 Dick.) 607; Coffey v. Sullivan, 63 N. J. Eq. (18 Dick.) 296; Mott v. Mott, 49 N. J. Eq. (4 Dick.) 192; Martling v. Martling, 47 N. J. Eq. (2 Dick.) 122), or in favor of a person holding a confidential relation to the donor (Huguenin v. Baseley, L. C. Eq. *406; Corrigan v. Pironi, ubi supra; Mulock v. Mulock, 31 N. J. Eq. (4 Stew.) 594; Hall v. Otterson, 52 N. J. Eq. (7 Dick.) 522; S. C., 53 N. J. Eq. (8 Dick.) 695), or in favor of a person having infiuenee over the donor (Garnsey v. Mundy, 24 N. J. Eq. (9 C. E. Gr.) 248; Coffey v. Sullivan, ubi supra; Martling v. Martling, ubi supra), or from one who was illiterate and without the benefit of competent counsel (White v. White, 60 N. J. Eq. (16 Dick.) 104). In such cases the suspicion engendered by the circumstances is deemed to east upon the donee accepting the gift the burden of satisfying the court that the donor understood the effect of the transaction, and voluntarily made tire gifts and divested himself of dominion over the subject of the gift.

In the case in hand there is no evidence as to the health or age of Charles B. Draper at the time of this transaction, but I think it must be inferred that he was not beyond the prime of life, and was in ordinary health. There appears to be nothing to justify any pretence that the acceptance of this trust was under any influence from without. On the contrary, the evidence produced by the complainants shows that the conveyance was made in trust upon his own desire, expressed to his sisters. As the infants must have been at the time less than three years old, they could not have exerted any influence on the father to make the gift. His donative purpose appears by complainants’ proof. By the same proofs his intent was “to save the property for his children.” When, with this purpose, he accepted the trusteeship, his gift to his children was complete, and there are no circumstances to excite doubt or suspicion in respect thereto.

If the doctrine which requires a donee to prove that the donor knew that he had reserved no interest to himself and that his gift was irrevocable is applicable to the case of an advancement from father to child where no circumstances raise doubt or suspicion, I think that such proof is made out by the evidence produced by complainants. It thereby appears not only that the donor intended a gift for his children, but also that he desired the land which was the.subject of his gift to be saved for them. When be declared that his purpose in taking the conveyance of the lands in trust was to save them for his children, the clear inference is that he was divesting bimself of dominion, and desired to put it out of his power to deprive his children of the benefit he designed for them, however tempted he might afterward be, and intended to do so.

The proofs further show that Charles B. Draper afterward conveyed these lands to one Newmark. In the conveyance he called himself a trustee. Newmark thereby had notice of the trust. Besides, the trust deed also was upon record. The proofs also show that Draper’s conveyance to Newmark was designed to secure a loan from Newmark to Draper. With the notice acquirecl from the deed and the record, Newmark could acquire no interest in the land as against the infánt cestui que trustent. The complainants’ right to the land is acquired from Newmark. As Newmark acquired.no right against the infants, she has none.

It is immaterial, in my judgment, whether the complainants’ bill seeks to invoke the general jurisdiction of the court or the special jurisdiction conferred by statute in respect to the quieting of titles. If its purpose was, as indicated by some of its recitals, to proceed under the statute, then, as neither party demanded an issue at law, the court is required to determine the respective claims according to its usual practice. Under such circumstances the case for relief which must be made out is practically the same as would be required upon a bill invoking the general jurisdiction of the court.

My conclusion is that no relief can be granted upon this bill, and it must be dismissed, with costs.