Volume 85 — New Jersey Equity Reports

<p>1. A father cannot relieve himself from his continuing duty to support his infant children by entering into a separation agreement with his wife which provides for the payment by him to her of a stipulated sum per week for the support of herself and their children, which sum is inadequate for the support of both the wife'and the children; and this court will, in such a situation, compel the husband to pay a greater sum for the support of his wife and children than that stipulated in the agreement.</p> <p>2. When husband and wife enter into a separation agreement which provides for the payment by the husband to the wife of a stipulated sum per week for the support of herself and their infant children, and the wife brings a suit for divorce against her h.usband on the ground of adultery (which such an agreement cannot - operate to bar), she may elect to apply for alimony, rather than to enforce the agreement pendente lite; especially so if she desires an increased allowance because of children who are dependent upon her.</p> <p>3. While a separation agreement between husband and wife is not abrogated by the institution by -the wife of a suit for divorce, it is no impediment to awarding the wife temporary alimony in her suit.</p>

<p>A party litigant can have only one solicitor of record, who may be an individual practitioner, or a firm of practitioners, who, as such, are regarded as a single entity.</p>

<p>1. An application for the enforcement of a decree adjudging the defendant company insolvent, and appointing a receiver pending the appeal from such decree, should be granted, where it appears that opposition to, or rebellion against, the authority of this court has been attempted, in keeping from the receiver the possession of books and assets and documents of the company at a time when no appeal was pending from the decree.</p> <p>2. In such case the order will be for the issuing of the injunction and the permitting of the receiver to take into his possession the assets of the defendant company, he not being allowed, however, to vote on any of its certificates of stock, or to sell, encumber or otherwise dispose of any of its assets or property, to the end that they may be recovered and husbanded, but not destroyed or impaired, pending the appeal.</p>

Heard on bill, amended bill, answers and cross-bill, and replications and proofs. On May 17th, 1901, four owners of land, in the town of Harrison (formerly called East Newark), entered into a written agreement for the purpose of dedicating as a road a strip of land sixty feet in width, running across their respective lands.

<p>Mr. Frank Benjamin, for the complainant.</p> <p>Mr. Archibald F. Sling erlcrnd, for the defendant Liberty Trust Company.</p>

<p>1. An agent, employed to negotiate for his principal the purchase of land, who violated the principal’s confidence, and purchased the land with his own money, and took a deed thereof to himself, became a constructive trustee for the principal’s benefit, upon payment of the price.</p> <p>2. ' In such case, the principal might establish a constructive trust, by showing a verbal agency contract, or a written contract, or no contract at all, since the trust arises from the agent’s representative status and the confidence necessarily reposed in him by the principal.</p> <p>3. An answer, which does not expressly set up the statute of frauds, but denies that defendant made the contract alleged in the bill, is a sufficient pleading to give the defendant the benefit of the statute as a defence, since the denial puts the complainant to the proof of a legal contract, or of a .contract by legal instruments of evidence. •</p>

<p>Op exceptions to a. master’s report.</p>

<p>That the erection and operation by a county on its own land of a hospital for patients afflicted with pulmonary tuberculosis, would materially reduce the market value of adjacent real estate, did not justify injunctive relief against the erection and operation of such hospital, where no danger to health existed or could be reasonably apprehended from the operation of the hospital, since a person cannot be denied the right to' make a lawful use of his property merely because such use injures the market value of his neighbor’s property.</p>

<p>On bill of review. On hearing on motion of defendants to • dismiss bill.</p>

<p>On bill for annulment of marriage.</p>

<p>On final hearing on bill to impress a trust on property and for an accounting.</p>

<p>On hearing on return of order to show cause why certain money should not be surrendered to receiver.</p>

<p>1. An additional right accruing to a complainant during the pendency of the suit should be-set up by way of supplemental bill, and this may be done for purpose of vauying the relief as such newly-occurring facts may demand.</p> <p>2. Where, in an administration suit an original bill was filed to procure the distribution of the assets, the sale of the testator’s real estate, and to speed the settlement of the estate then in progress in the orphans court, a decree for sale has been made by this court and a partial distribution together with the filing of a final account in the orphans court within a prescribed period is directed, a supplemental bill -is the appropriate procedure, where the ground of complaint is a delay of over two years subsequent to the period thus fixed for the filing of the final account, and where the attorney for the substituted administrator defendant while acting in that capacity, bought some of the real estate, and for that reason was made a party defendant by the supplemental bill and relief in respect of him was sought for the profits made in the transaction.</p> <p>3. In such case this court has jurisdiction to entertain a suit at i the instance of a legatee under the testator’s will.</p> <p>4. If it be true, as alleged in the supplemental bill, that the" attorney thereby made a party defendant, while acting as attorney for the substituted administrator defendant, acquired the real estate which it was alike his duty, and the duty of his client, to sell at the best possible advantage for the estate represented by both of them, he 'necessarily became by that purchase a trustee ex maleficio for the estate which he was representing, and cannot, in equity, be permitted to enjoy a profit from the purchase. If he has made a profit, that profit belongs to the estate; if he made a loss, the loss is his.</p> <p>5. The substituted administrator must be made the recipient of thalt profit when its amount is ascertained; the primary duty to recover that profit being reposed in him. If the profit has been made and the substituted administrator will not seek its recovery, then the legatees, as the parties secondarily in right, though primarily in interest, are clearly privileged to ask this court to enforce its payment from the attorney to the substituted administrator for their ultimate benefit.</p> <p>6. Over such a suit the orphans court cannot exercise jurisdiction, and a settlement of the estate wholly final should not be made in the orphans court until the fruits of such suit are obtained.</p>

<p>1. In an action by the creditor of a bankrupt to set aside a conveyance as having been made to defraud the bankrupt’s creditors, evidence Held sufficient to show fraud.</p> <p>2. Where the owner of realty conveyed it to defraud his creditors, the grantee participating in the purpose, declarations and acts of such owner disparaging title, subsequent to the conveyance, but when he was in possession of the property and was holder of the record title, were admissible in evidence in a suit against the grantee to set aside the conveyance,for the principle that a declaration of.a party after he had parted with his interest in the subject-matter of the litigation cannot be received to disparage the title or right of a party acquired in good faith previous to the time of making such declaration, is inapplicable in cases of fraudulent conveyances.</p>

<p>1. It is to be assumed that a testator intended to dispose of all his property.</p> <p>2. In the construction of a will the court must do everything in its power to discover the testator’s intentions, and to see that they are carried out, if possible.</p> <p>3. Testator, whose only heirs and next of kin were a sister, a brother, and several nephews and nieces, and the total value of whose real estate was $27,095, and the proceeds of whose personal property after the payment of his debts, an annuity, and specific bequests amounted to $25,500, who devised the “residue of my estate—.all monies and incomes,” to the establishment of a free hospital as a memorial gift to his father and mother, appointed a friend as his executor, and one as his executrix who was familiar with his plans, intended to leave the residue of both his real and personal property for such purpose, and did not limit the phrase “residue of my estate” merely to “monies and incomes,” and hence did not die intestate as tb his realty.</p> <p>4. The essential idea of a “charitable trust” is that its benefit is to be for the whole public, or some large class of the public as distinguished from private persons; the fact that the beneficiaries must be indefinite also distinguishes such a trust from a private trust.</p> <p>5. Charitable trusts are treated with much greater leniency by courts of equity than are private trusts, and such courts will stretch their powers to sustain and carry out a charitable trust.</p> <p>6. Any person capable of taking and holding real and personal property may be a trustee of a charitable trust, including aliens and married women.</p> <p>7. A devise of the residue of testator’s estate for the establishment of a free hospital as a memorial gift to a city, open to persons of any religious denomination whatsoever, and to all or any of the medical profession in good standing, sufficiently defined the purpose of the trust; and the testator’s mention that an executrix was familiar with his plan and would direct and arrange for its execution 'would not influence the court to refuse to execute it.</p> <p>8. A devise of the residue of an estate to establish a free hospital as a memorial gift to a city, appointing the testator’s friend as an executor, and appointing as-executrix one familiar with his plans under whose direction and arrangement with the mayor and aldermen of the city the hospital was to be established, vested in the executors and the municipal authorities discretion as to the arrangements for carrying out the charitable trust, so that it was not void for uncertainty .as to whether the title passed to the executors as trustees or to the city.</p> <p>9. In such devise the provision that the hospital was to be a free gift to the city under such direction ahd arrangement as the executors might make with the mayor and aldermen of the city was not in contravention of law.</p> <p>10. Under a will leaving the residue of an estate for the establishment of a free hospital as a memorial gift to a city, where the municipal authorities were ready to accept it, where the estate exceeded $50,000, and would have exceeded $60,000 except for a contest, and a small hospital, together with the land, might be established for $15,000, and an endowment of $20,000 could be advantageously used, the hospital would be established.</p> <p>11. Under a devise of the residue of an estate consisting of realty and personalty, directing the sale of part of the personalty when in the judgment of the executors it should be most beneficial to the estate; the proceeds to go to a hospital to be established by direction and arrangement of the executors and the municipal authorities, the court would appoint the executors and the mayor of the city as trustees to carry out the will.</p>

<p>An ink factory emitting noxious and unwholesome fumes, causing irritation of the throat and sometimes vomiting spells, and rendering living in the vicinity unbearable, in respect to physical comfort, and destructive to health, in view of the situation of the dwelling of complainant along the palisades, at the foot of which the factory was located, will be enjoined ás a nuisance.</p>

<p>Evidence Held insufficient to sustain a bill for maintenance.</p>

<p>1. An unrecorded declaration of trust of lands is void as against a subsequent mortgage given by the trustee'to a bona fide mortgagee for a valuable consideration, not having notice thereof, whose mortgage was first recorded.</p> <p>2. Where a bond and mortgage are given in settlement of a debt, and by the novation the creditor waives his right of action in tort against the debtor and extends the time of payment of the debt, he is entitled to the status of a bona fide mortgagee for a valuable consideration, and the lien of his recorded mortgage is entitled to priority over an unrecorded declaration of trust, of which he had no notice.</p>

<p>On final hearing on bill and answer.</p>

Oil appeal from the decree of tire Sussex county orphans court, entered upon the verdict of a jury, adjudicating that the paper purporting to be the last will and testament of Emma Shotwell, deceased, was the result of undue influence, imposition and fraud, and was not the last will and testament of said Emma Shotwell.

<p>1. The ordinary has no jurisdiction to entertain proof of a will in solemn form as a means of setting aside a decree of probate of a surrogate who has acted within his original jurisdiction, and from whose decree the statutory period of review has expired.</p> <p>2. Act of December 16th, 1784 {Pat. L. p. 59), creating an orphans court, transferred from the surrogates to the orphans court the powers theretofore exercised by the surrogate in hearing and determining disputes as to the validity of wills and as to rights of administration. It also provided an appeal to the ordinary from each of the two courts. Act of June 13th, 1820 {Rev. 1821 p. 776), provided that the surrogates should not proceed to prove a will until ten days from the death of testator, and that appeals from the surrogate to the prerogative court were required to be taken within six months. Act of March 17th, 1855 {P. L. 1855 p. 3J/2), provided for an appeal from a surrogate’s probate to the orphans court, prescribing as the limit for such appeal six months for residents and one year for non-residents. Act of March 27thi 1874 {Rev. Stat. 1874 P- 791), shortened the period for appeal from- a surrogate’s probate by one-half in each case.—Held, that, since such legislation affected procedure merely, it constituted no encroachment on the constitutional powers of the ordinary to determine the validity of wills by entertaining proofs thereof in solemn form.</p> <p>3. Since no one has any rights to the personalty of a decedent, except such as are allowed by the state laws, whether such personalty shall pass under the will or under the statute of distributions being determinable by reference to the state laws alone, that determination is conclusive although made without such notice to parties in interest as would be necessary to bar ordinary property rights, the legislature has power to limit the period of appeal in matters of probate without regard to actual notice to parties in interest.</p>

<p>On appeal from the. Passaic county orphans court.</p>

<p>1. The burden of overcoming the presumption of undue influence, if any, arising from the relations of the chief beneficiary to the testator, was successfully met where the beneficiary and his wife, with whom the testator lived, emphatically denied ever having knowledge of the will, or that, in conversation with him, they ever spoke of a will.</p> <p>2. Kindly offices and attentions of the beneficiary and his family rendered to an aged testator who made his home with them, were legitimate and not undue influence.</p> <p>3. In determining undue influence, if any, exercised upon.a testator, the point of time to be considered is that at which the testator executed the writing in dispute.</p> <p>4. The legal presumption is that a testator was sane when he executed his will.</p> <p>5. In a will contest on the ground of the testator’s incapacity to make a will, evidence Held not sufficient to overcome the presumption of sanity.</p> <p>6. A testator must be possessed of a sound and disposing mind and memory, and, where his mind and memory are sufficiently sound to enable him to know and to understand the transaction, to recollect the property about to be bequeathed and the objects of his bounty, he has “testamentary capacity.”</p> <p>7. In a will contest on the ground of undue influence, the caveatrix had the burden of proof.</p> <p>8. In a will contest evidence Held to show that when he executed the writing propounded, testator possessed testamentary capacity.</p>

<p>P. L. 1914 V• 267 exempts from the transfer tax property to the amount of $5,000 passing to a child, or lineal descendant, and further provides that the same exemption shall be allowed to any child to whom the decedent for not less than ten years prior to the transfer stood in the mutually acknowledged relation of a parent, provided that such relationship began at or before the child’s fifteenth birthday and was continuous for at least ten years thereafter." Appellant, after the death of her parents, and when only four years old, became a member of the family of her aunt, with whom she lived continuously until the death of the aunt without children, over forty years later. The devotion and affection toward each other were those ordinarily existing between mother and daughter, and she rendered such filial duties and services as are usually expected of children.—Held, that she was entitled to the statutory exemption.</p>

<p>1. Where a testator bequeaths his estate upon an event which does not happen, and makes no other disposition thereof, the legacy lapses and the estate passes to those who were entitled under the statute of distribution at the time of the death of the testator.</p> <p>2. Where a testator bequeathed his estate to his wife for life, and over, upon a contingency which did not happen-, and as to the remainder died intestate, his widow’s personal representative is entitled to her share of the remainder under the statute of distribution.</p>

On motion to restrain the collection of judgments at law pending appeal from an order in chancery dissolving such an injunction.

<p>In a suit by a divorced wife to set aside the decree of divorce and restore her marital status, so that she might enforce against her deceased husband’s estate a claim which otherwise would be barred by limitations, the bill was dismissed on January 9th, 1913. Act May 15th, 1907 (P. L. 1907 p. 452), which was then in force, required appeals from final decrees of the court of chancery to be taken within one year, and no appeal was so taken within such time. Act March 30th, 1914 (P. L. 1914 P-133), provided that where final decree had theretofore been filed, or might thereafter be filed, the chancellor might, in his discretion, by an order made not more than six months after the time limited for taking an appeal, extend the time for appealing.—Held, that the later act is retroactive in its operation, and that the decree in the present case is within its purview.—Held, further, that as the decree conclusively settled the right of the defendants to hold the property of their decedent’s estate free from the claim of the wife, and therefore established a property right which became vested by the expiration of the time within which an appeal might have been taken, this right could not thereafter be impaired by legislative enactment, and that the act of 1914 so far as it operated to revive the right of appeal after it had expired and property rights had become vested, is unconstitutional.</p>

<p>On appeal from an order of the court of chancery.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 84 N. J. Eq. 39.</p>

Eoe. On bill to quiet title. The decree adjudged the title of the complainant to be good.

<p>1. The title of the act of 1900 (P. L. 1900 p. 113; Comp. Stat. p. 5816) does not limit the scope of the legislation to the prevention of pollution of the state’s water by means of a state sewerage commission.</p> <p>2. The act of 1908 (P. L. 1908 p. 605; Comp. Stat. p. 5880), vesting in the state board of health the powers of the state sewerage commission, is constitutional.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master John Franklin Fort.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. ¿79.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in SJ¡. N. J. Eq. U5.</p>

65. The complainants, Charlott B. Vaiden, Annie M. Lane, Margaret E. Holmes and George W. Jones, filed a supplemental bill in equity setting out that in the original bill it was charged one Henry Brown died testate, and by his last will and testament devised to his widow, for life, all his real and personal estate, and directed that after her death the real estate should be sold and the proceeds of his entire estate divided into two parts, one of which was given to the…

<p>Where a corporation, organized under the General Railroad act, filed its survey and location and obtained the approval of the public utility commissioners as to its project, the fact that it failed to obtain the consent of the local governing body of the township, wherein one of its termini was located, will not warrant the latter body in interfering with the laying of the tracks within the prescribed route, and an injunction will issue to prevent such interference.</p>

<p>On an appeal from a decree of the court of chancery advised by Advisory Master Forman Grey.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in S3 N. J. Eg. 479.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 81 N. J. Fq. 66.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master John Franklin Fort.</p>

I do not find in the brief a ease which authorizes a court of equity to interfere by injunction with the enforcement of an ordinance adopted by the governing body of a municipality for the regulation or construction of approaches upon its highway, and I cannot agree that the case falls under the second and third classes enumerated in Hart v. Leonard, N. J. Hq. L16.

<p>On appeal from an. order of the court of chancery made by the chancellor, whose opinion is reported ante p. 5.</p>

<p>On appeal from a decree of the court of chancery made by the chancellor, whose opinion is reported in 81>- N. J. Fq. 6, 209.</p>

<p>On appeal from a decree of the court of chancery advised by Vice,-Chancellor Emery, whose opinion is reported in 8L N. J. Eq. IS. '</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Learning.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is' reported in 8Jf N. J. Eq. 276.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 81¡. N. J, Eq. 875.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 84 N. J. Eq. 868.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported ante p. 87.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master Charles J. Eoe.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 82 N. J. Fq. 488.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master William J. Magie.</p>

<p>Note.—This opinion was inadvertently omitted from the list of opinions for the November term, 1900, contained in volume 62 N. J. Eq.—Rep.</p>

<p>On hcibeas corpus.</p>

<p>1. G. I. S. and wife conveyed to the B. M. E. church certain lands in trust as a place of residence for the Methodist preachers who might from time to time be stationed in Bernardsville, and also conveyed' to it certain other lands in trust for the purpose of a church. The church alleges that these conveyances were made for valuable consideration, and prays that the trusts be declared void and be decreed to be terminated for that reason. Quaire: Can a conveyance for valuable consideration, adequate or inadequate, with a trust for charitable uses imposed upon it, be defeated by the trustee upon the ground that it is void because not founded upon a gift.</p> <p>2. The defendants are the heirs-at-law of G. I. S. and his wife, both deceased, and the general and Newark annual conferences of the M. E. church, alleged to be all the persons who may have any interest in the subject-matter of the suit, or who may have any right of reversion or remainder in the premises after the termination of the particular estate. These defendants answered admitting the allegations of the bill and consenting that the relief prayed be granted to the complainant.—Held, that the cestuis que trtist are the present and future pastors, as to the parsonage, and the present and future congregations, as to the church, who are not parties, and can only be protected by the presence of the attorney-general intervening on behalf of the public.</p> <p>3. Amendment will be allowed to charge the attorney-general as defendant, and, after answer by him, the case may be brought on for further hearing, at which the facts relied upon by the complainant may be proved as the admissions made by the present defendants in their answers cannot bind the cesttds que trust.</p>

<p>On application for a commission and letters rogatory to take depositions of foreign witnesses de lene esse.</p>

<p>1. P. L. 1906 p. 57, providing that it shall be lawful for two or more counties in which a plank road or bridge of a company whose charter has expired lies to jointly rebuild, reconstruct, change the grade of, improve, and widen such road, and agree as to the proportion of the total expense to be borne by each, and that it shall be lawful also for the boards of chosen freeholders to agree with any street railway company using such road as to the share of the expense to be borne by it toward such improvement, and P. L. 1910 p. 1/00, providing that if a street railway or traction company shall change the location of its tracks at the request of the board or boards of chosen freeholders charged with the maintenance of the street, the company shall have the right to maintain and operate in the new location for as long a period as it had the right to do in the former location, do not authorize the boards of chosen freeholders of two counties in which a street railroad operates over a plank road acquired by the counties, to force the company against its will to change the location of its tracks, which are not dangerous or inconvenient, as the highway is, simply because the boards wish to reconstruct it, since the first act contemplates an agreement and the latter a-request.</p> <p>2. The section of the Freeholders act authorizing the boards of county freeholders to ordain, establish, and put in execution such by-laws, ordinances and regulations as shall seem necessary and convenient for the government of their respective corporations, does not authorize the boards to compel such a change in the location of the tracks, the section relating only to the internal regulation of the boards and not to their control of other persons or bodies.</p> <p>S. The Traction act (P. L. 1893 p. 302), providing in section 6 that after description of the route of a street railroad is filed in the office of the secretary of state the company may apply for a location of its tracks to the common council or other body having control of the streets, and in section T that the location thus granted shall be deemed the true location of the tracks if an acceptance by the board of directors of the road shall be filed with the secretary of state, and in section 8, providing that any consent required to be given by a public body shall have the force and effect of a contract, does not authorize the boards of chosen freeholders to change the location of the company’s tracks, there being no provision in the Traction act authorizing the public body to vary, of its own motion, the location of tracks which it has defined.</p> <p>4. P. L. 1902 p 566, directing the boards of freeholders of two or more counties in which a plank road and bridge of a company whose charter had expired lay, to acquire, maintain and operate such road and bridge at joint expense, does not authorize such boards to change, against the will of a street railroad operating over such a plank road, the location of its tracks.</p>

<p>1. 4 Oomp. Stat. 1910 p. 5668 § 22, under which a trust company was incorporated, giving the commissioner of banking and insurance authority on finding certain conditions after investigation, t'6 take possession of its property and business as against its directors, and to collect and distribute its assets, as amended by P. L. 1918 p. 282, providing that when the commissioner finds a trust company’s violation of its charter or its conduct of business in an unsafe or unauthorized manner, he may take possession of its property and business, until it shall resume business or its affairs are finally liquidated, and collect moneys due the company, conserve its assets and business, and liquidate its affairs, and in the name of the company prosecute and defend all suits, was not unconstitutional as depriving the company of its property without due process of law or at all, as the property is thereby better secured when those who owed it debts are made to pay them.</p> <p>2. In a suit by such commissioner in possession of a trust company’s property and business for the losses to the company resulting, from their negligence as directors, defendants were in no position to raise the objection that the statute authorizing the commissioner’s possession was unconstitutional as a deprivation of the company’s property without due process of law, as the statute did not affect their rights or touch the question of their liability.</p> <p>3. In such bill a paragraph alleging that some of the directors had made partial restitution of losses to the commissioner in settlement of his claims against them, severally on behalf of the trust company, pursuant to an agreement and to the statute without prejudice to the causes of action against the other directors, did not enure to the benefit of all the directors, so as to bar the suit, as their liability was a joint and several liability.</p>

<p>At a sheriff’s sale, properly advertised and regular in other respects, lands alleged to be worth $6,500 were sold for $93.34, under execution issued on a judgment for $254.37 recovered against the complainant widow’s deceased husband in his lifetime and paramount to the dower right of the complainant, such sale being subject to another judgment having priority recovered against his heirs for $5,658.58 and costs, and the purchaser being the owner of' both judgments. Upon a bill filed by the widow to annul the sheriff’s deed alleging that the property was sold for a grossly inadequate price, and the purchaser, or his father for him, was guilty of inequitable conduct, namely, “the purpose fraudulently and deceitfully to cut out” her dower right—Held, (1) that such allegations of the bill do not indicate fraudulent conduct on the part of the purchaser or his father; (2) that the purchaser was guilty of no fraud in procuring an assignment of the earlier judgment, he having the same right to acquire it as the complainant or anyone else, even if his motive were bad; and (3) that the bill is defective in not showing how valuable the widow’s dower is.</p>

<p>While the surety on a ne exeat bond does not stand in the position of bail upon a recognizance to the extent that he may surrender his principal, yet the obligation of the bond being that the party against whom •the writ is issued will remain personally amenable to orders and proceedings in the court, payment of the penalty of the defaulted ne exeat bond may be enforced from the surety in a court of chancery by summary proceeding on an order to show cause.</p>

<p>On final hearing on creditor’s bill.</p>

On bill to quiet title. Hearing on motion to test sufficiency of bill.

On bill to reinstate policy of insurance. On hearing on motion to strike out bill. By the present bill complainant seeks a decree of this court reinstating a policy of fire insurance which defendant company has declared “lapsed” by reason of complainant’s failure to pay a premium on the day specified in the policy for that purpose.

<p>On final hearing. On bill for enforcement of lien under Municipal Liens act.</p>

<p>On final hearing. On bill to enforce lien of materialman against funds in bands of a municipality.</p>

<p>On final hearing. On bill to set aside chattel mortgage..</p>

<p>1. Where a husband has procured a decree of divorce against his wife by fraudulently concealing from her the pendency of the suit, and thereafter died, relief against the operation of the decree should be sought by the wife by means of an original bill for relief rather than by a petition in the divorce suit.</p> <p>2. After the decease of a spouse, the validity of the divorce decree should be tested in suits, or in aid of suits, actually pending which directly involve specific property rights affected by the divorce decree, but where, as here, the bill sets forth that complainant claims and desires to' recover her dower in the real estate of her deceased husband and is barred from recovery by the fraudulent decree of divorce, and makes defendants to her suit all persons in interest, and they have all answered on the merits without objection to the-sufficiency of the bill, the relief prayed for should not be denied, on the mere ground that no action or suit for dower, or other proceeding for the recovery of specific property, in which the divorce decree could be interposed as a bar, is in fact pending, or may never be brought.</p> <p>3. Girernavd v. Giremail d, 81 N. J. Bq. 66, distinguished.</p>

<p>1. Evidence in a divorce suit for adultery Held to establish the guilt of the defendant.</p> <p>2. The burden of proof to establish condonation is with the defendant.</p>

On bill for appointment of a trustee under deed of conveyance from Richard Warren to Frederick Knighton to use of the widow and children of Richard Warren. On demurrer to bill. See Warren v. Warren, 7-5 N. J. Eq. Jfl5.

On order to show cause why respondent should not be disbarred or otherwise disciplined and punished. This is a proceeding instituted on the complaint of one Gertrude Hawkins, the object of which is to strike from the roll the name of Charles A. Trimble, now a solicitor of this court.

<p>On petition to distribute money in court.</p>

<p>On motion to vacate injunction.</p>

<p>1. Complainant was the trustee named in a purchase-money mortgage upon the plant of defendant company amounting to $175,000, $15,000 of which was payable by ttoee notes of $5,000, endorsed by the defendant’s promoters, the balance of $160,000 in twenty years represented by bonds secured by ■ the mortgage; the plant then being subject to three mortgages, two of which matured May 1st, 1914, and all of which the mortgagee was to pay before the bonds were to be delivered by the mortgagor. At the time of the mortgage the bonds had not been prepared, and a draft of one of them was inserted and a temporary bond of $175,000 was substituted, and the bonds were to be delivered to the trustee on January 1st, 1914, and on default of interest, &c., the principal sum was to become due. The mortgagor failed to deliver the bonds to redeem the temporary bond and defaulted.—Held, that the mortgagor was not excused from delivering such bonds by the mortgagee’s failure to pay off the two subsequently maturing mortgages, which it was ready to do on the delivery of the bonds, and that the mortgagee was entitled to a foreclosure.</p> <p>2. On such foreclosure, and the ordering of a sale to make the principal of the mortgage with accrued interest, &c., the amount of $160,175 was to be paid to the mortgagee, first deducting therefrom and paying the mortgages encumbering the property at the time of purchase, and which the mortgagee was obligated to pay; and $15,175, representing $15,000 of the bonds secured by the mortgage which were to be issued to the mortgagor’s promoters, was to. be paid to the mortgagee to be applied to the payment of the notes of the mortgagor endorsed by the promoters in part payment of the purchase price.</p>

<p>1. Pending an action in ejectment, courts of law have injunctive power to restrain waste and to protect and preserve the property involved.</p> <p>2. A suit in chancery is commenced when process is issued. The statute requires the bill to be then on file.</p> <p>3. Before the issuing of process, a cause is not “pending” in chancery, so as to make it the subject of removal into the law courts, under the Transfer of Causes act.</p>

<p>Under Divorce act (2 Oomp. Btat. 1910 p. 2041 § SS), providing that full faith and credit shall be given to another state’s decree of divorce, except that if any inhabitant of the state shall go. into another state, territory or country to obtain a divorce for a cause occurring while the parties resided in New Jez-sey, or for a cause not ground for divoz’ce under its laws, a decree so obtained shall be of no force in New Jersey, where a wife went to Reno, Nevada, to procure a- decree for extreme cruelty occuz-ring in New Jersey, and was guilty of fraud upon the court of Nevada in procuring a divorce before she had been a dona fide resident there for a year, as required by statute, such Nevada divorce will be annulled in New Jersey on the bill of the husband.</p>

<p>After an affirmance by the court of errors and appeals, the court of chancery cannot amend the -final decree. There is nothing further for the lower court to do in the case but to enter the mandate and enforce the judgment. The remedy, if any, is by application to the appellate court.</p>

<p>On bill for construction of will.</p>

<p>On final hearing.</p>

<p>The complainant, an old man of ninety years, owning a small estate and living with and dependent upon his children and son-in-law, agreed to bepome a joint endorser of commercial paper, without limit in amount, to finance a business about to be engaged in by the son-in-law and the co-endorser. The enterprise failed, with paper outstanding, jointly endorsed, far in excess of the value of the complainant’s property.—Held, that the agreement and endorsements were obtained under the influence of confidential relations existing between the complainant and the son-in-law, of which the co-en’dorser was charged with notice, and as to the co-endorser the agreement and endorsements were void for want of intelligent understanding by the complainant and absence of competent and independent advice; also, Held, that a judgment recovered by the co-endorser on the joint liability is invalid, execution whereof would be restrained; and that third parties, innocent holders of the paper, would be compelled to exhaust their remedy against the co-endorser before resorting to the complainant’s property.</p>

<p>On final hearing.</p>

<p>Counsel fee and .costs allowed in a final decree may be enforced by a process of attachment for contempt.</p>

<p>On final hearing.</p>

<p>On motion for preliminary injunction and motion to strike ont bill.</p>

<p>1. Complainant was mentally incompetent, and bis wife, who had married him to secure his property, procured bis conveyance of all his property to a third person, and thence to them in their joint names, both without consideration, and afterwards procured his deed to her relatives living in the same house, so that thereby he was divested of substantially all interest in the property of record, and was unable to work and dependent upon the grantees, and had not had the benefit of independent advice.—Held, that complainant might have the conveyances set aside, in the absence of the grantees’ proof of the fairness of the transaction.</p> <p>2. In such case the conveyances would not be allowed to stand, without proof that the grantor understood the nature of the transaction.</p> <p>3. A husband’s conveyance of realty to himself and his wife vested in them the lands in common, each holding one-half during their joint lives with survivorship as at common law.</p>

<p>1. Where complainant, alleged wife of the testator, and the devisee of a sixty per cent, interest in land with a theatre building thereon, after the performance of a trust to complete the building, on advice of counsel entered into a contract to sell her interest on certain terms and executed a deed to be delivered on the purchaser’s performance of the contract, and on her failure to perform, the purchaser filed in the court of common pleas of Allegheny county, Pennsylvania, a bill for specific performance, and her answer, filed by counsel, consented to a decree for specific performance, which was thereupon entered, the decree was entitled to full faith and credit upon her bill to charge the purchaser’s estate with the difference between the fair market value of her share In the property and the contract price.</p> <p>2. Such decree, in the absence of anything to impugn it, was res judicata on the same issues raised by complainant’s bill, so that she was entitled to no relief from the contract of sale.</p> <p>3. Where complainant sued to set aside her deed of her share as devisee in land with'a theatre building thereon, and to set aside the purchaser’s mortgage and bond, and for a sale of the property to pay the amount due under the will, and also sued to set aside the testator’s lease to defendant after making the will, and discontinued both suits, her bill to set aside the lease, not brought until more than a year after-wards, when the property had been disposed of, and when the purchasers, who might have defended with full knowledge of the facts, were both dead, showed such gross laches that, even if merit were shown, it would be unconscionable for the chancery court to entertain the complaint.</p> <p>4. Complainant, as devisee of a share of sixty per cent, in land with a theatre building thereon, after performance of a trust to pay off mortgages, taxes, &c., and to complete the building in not to exceed five years, agreed to sell her share subject to a mortgage, with a provision that prior to a certain day all the rents should be collected by the trustees, who- should not receive any part thereof, or be held to pay any taxes, &c., and that no interest should be charged on the purchase-money before that day, and further agreed that the estate should be devoted to payment of the debts of the estate out of the profits of the theatre.— Held, that, after such agreements and their part execution by the trustees, complainant had no right to an accounting of the rents of the property.</p> <p>5. A bequest merely of a succession of legacies of a certain amount each cannot be charged against a specific devise of real estate.</p> <p>6. Where an administrator filed his first and final account in the orphans court of Allegheny county, Pennsylvania, which was confirmed, and the administrators eum testamento anneceo filed their joint account in such court, which, after exceptions thereto had been overruled, was confirmed, with an order of distribution thereby accounting for all property which came to their hands, and the ancillary executor filed his final account in the surrogate’s court of New York, which after exceptions filed was stated and settled, and the amount charged him was charged against him on his account filed in this state as surviving executor, such decrees were res judicata, and the accounts in the States of New York and Pennsylvania would not be reopened and examined.</p> <p>7. The settlement of the final account of an administrator in the orphans court of a county in the state, who thereupon turned over the balance in his hands, except a specific legacy to complainant, which he paid to the executors, and the allowance of the executors’ account, by such court over the exceptions of complainant, precluded the court of chancery from reopening and re-examining the accounts.</p> <p>S. A devise of forty per cent, of property, consisting of land with a theatre building thereon, situated in Pennsylvania, appraised at $750,000, to the holder of the testator’s note for $35,000, did not discharge the debt, as the devise was not of the same nature as the debt, especially as the testator directed the payment of all his just debts; so that the estate of the devisee was not accountable for money received in Pennsylvania on account of a judgment on the note obtained in that state against the estate of the testator.</p> <p>9. A bill to charge executors for the difference between the selling price of property of an estate and its alleged true value at the date of the sale, conducted in an effort to see that dona fide bidders were there who would bid so as to procure the highest price for the property, brought more than seven years thereafter by complainant, who from a public record had knowledge of the executors’ account of the money received from the sale, and after the administrator and purchaser were dead and the situation was greatly changed, would be denied, on the ground of complainant’s gross laches, especially in view of subsequent events not showing any fraud or wrong-doing on the part of the executors.</p>

<p>If a petitioner for divorce does not enter a final decree upon becoming entitled thereto by reason of no cause being shown why the decree nisi should not be made absolute, a defendant may, by motion on notice, compel the petitioner to enter such final decree or suffer the decree nisi to be opened and the petition dismissed.</p>

<p>1. In a suit brought by the assignee of a mortgage executed by a married woman and her husband, comprising her own property, where she filed an answer, in the nature of a cross-bill, praying that the bill be dismissed and that the mortgage be declared not a lien upon her property, and for other relief upon the following grounds: “1. That she did not sign a mortgage to secure a pre-existing debt of her husband’s. 2. That she was induced to sign, as maker, a series of notes, and that the mortgage she gave to Max Sandt was to secure said notes and not to secure the debt of her husband, although she avers that said notes were given as part of the consideration for the saloon sold by the said Sandt to her husband. 3. That she never received any benefit to her use, or to the benefit of her separate estate, and that said notes and mortgage were invalid according to section 5 of the Married Woman’s act and the amendments thereto.”—Held, that the answer assumes that if the notes are void within the meaning of the fifth section of the act relating to the property of a married woman, the mortgage is likewise void as being embraced within the provisions of the same section.</p> <p>2. These assumptions, however, are erroneous in this, that while the contract contained in the notes, being purely executory (if within the statute), cannot be enforced, the conveyance by the mortgage, being executed, if given to secure the husband’s debt, is good, and her title in equity can be enforced.</p> <p>3. Inasmuch as the record shows that the wife was the maker of the notes, which were given as part consideration for the purchase of the saloon sold by the defendant to Sandt, the payee, to her husband, nothing appears to bring the case within the second proviso of section 5 of the Married Woman’s act, and therefore the notes are void.</p> <p>4. It is an established rule that when one gives an obligation which is void, or avoided, in payment or discharge of the existing obligation, the prior obligation continues and is enforceable.</p> <p>5. Therefore, when the husband delivered the void notes of his wife for the part of the purchase-money which remained unpaid at the confirmation of the sale, he was and continued liable to pay the balance of the consideration, being the identical sums mentioned in said notes to the vendor, and, being so liable, the notes and mortgage in question were given to secure the payment of the husband’s debt, with the result that the mortgagee had, before the assignment, good right in equity to foreclose the mortgage to pay this debt of the husband’s, and an assignee has a like right because he took by assignment the debt of the husband to sustain his right under the mortgage, although the husband’s right might not, in express words, have been assigned thereto.</p> <p>6. As the wife understood that she was giving a mortgage to secure' the payment of the unpaid purchase i>riee, and as this price was erroneously converted into her supposed debt, full justice will now be rendered to her by now treating the mortgage as valid for the debt which was intended to be secured.</p> <p>7. The answer does not disclose duress exercised by the husband upon his wife.</p> <p>8. Neither can the answer by way of cross-bill be sustained on the ground of misrepresentation, in that the wife’s husband told her that the signing of the notes and the mortgage by her was a matter of form and that he would take care of the notes, inasmuch as such language could not convey to the wife the idea that she would incur any liability by signing the notes and mortgage because of the last sentence, namely, “and that he would take care of the notes.”</p> <p>9. It will be presumed that the parties honestly intended that the notes and mortgage should be valid and that neither side intended to mislead the other.-</p> <p>10. The clear import of the language used is, that while the wife would be liable if the husband did not pay the notes, yet in effect, her signing would be a mere matter of form because he would pay them, thereby not only discharging her from what she understood was a personal liability on the notes, but relieving her lands from the lien of the mortgage.</p> <p>11. Moreover, the representation, for aught that appears, was secretly made by the husband to the wife, there being no allegation that the mortgagee joined in the representation or had any knowledge of it. To permit a wife in such a case to avoid her mortgage on the ground of false representations made to her by her husband secretly and without the knowledge or connivance of the mortgagee, where she had duly acknowledged the instrument after the contents had been made known to her, would tend to greatly weaken and impair mortgage security and is against public policy.</p> <p>12. Neither can the answer by way of cross-bill be sustained on the ground of undue influence. The true interpretation and meaning of such answer by way of cross-bill declared.</p> <p>13. In this state the certificate of the officer taking the acknowledgment is prima, facie evidence, and the burden of proof is on the wife to show it is untrue.</p> <p>14. Inasmuch as the married woman went before an officer designated by law to perform certain prescribed duties, and acknowledged the mortgage in due form of law on a private examination, separate and apart from her husband, she cannot now assert that, prior to such examination, her husband exercised the coercion which she charges, it not appearing that the mortgagee had any knowledge of the coercive acts of the husband and was in no manner a party to them, and had no reasons to assume that the facts contained in the certificate of the officer were untrue.</p>

<p>1. In a suit by a vendee against a vendor’s heirs-at-law and personal representative for the specific performance of an oral agreement for the sale of lands entered into between the vendor in his lifetime and the complainant, where it appears that the contract has been clearly, definitely and unequivocally proven, and has been performed by the complainant, this court has power to decree specific performance, even though the contract be oral.</p> <p>2. The complainant, under the circumstances of this case, 'is not guilty of laches in failing to obtain a deed or bring this suit during vendor’s lifetime.</p> <p>3. The defendant, as administratrix, held a sale of lands of the deceased, and sold the lands in question to one T., who is not a party to this suit, and who paid a deposit. Prior to the sale the complainant asserted his claim to defendants and it was understood that he should bring suit to establish his claim. At the sale the complainant stood by and, saw the premises struck off to T. without publicly asserting his claim. The sale has not been confirmed or deed delivered.—Held, (1) that T. not being a party to this suit, is not bound by the decree; (2) the defendants cannot avail themselves of any estoppel which might exist in favor of T.</p>

<p>1. In a suit to obtain a decree that an assignment purporting to assign certain bonds and mortgages is a forgery, and to compel the defendant to restore them to the complainant, evidence Held, to show (1) that the complainant’s signature to the assignment is a forgery, and (2) that the complainant, not being chargeable with negligence, should not be estopped from asserting that the assignment is a forgery, and that the defendant would be decreed to restore the bonds and mortgages to the complainant.</p> <p>2. The attorney-at-law who committed the forgery, and who was the witness to the signature of the assignment and! signed the certificate of acknowledgment, was not the agent of the complainant with power to execute the assignment of mortgages in question, whatever agency existed applying only to the collecting of interest.</p>

<p>1. Upon a dispute between rival claimants to a share of the proceeds of sale of lands in the hands of a special master in a partition suit, which he was directed to pay to one “T. Edward Morris,” a tenant in common, one of the defendants therein, one of the claimants claimed under an order drawn by “Thomas E. Morris” upon the special master, and the other, under a judgment against “Edward Morris.” It was stipulated between the claimants “that ‘T. Edward Morris, defendant herein (i. e., the judgment debtor), is the same person against whom Louisa M. Tournade (i. e., the judgment creditor), obtained judgment * * * that said Morris is sometimes known as T. Edward Morris, sometimes as Thomas E. Morris, sometimes as Eddie Morris, sometimes as Edward Morris.’ ”—Held, that inasmuch as the stipulation does not state what Christian name was given Morris at birth or baptism, and in the absence of the admission in the stipulation that he was known as “Thomas E.” (thus indicating in full his Christian name), and treating the case as though his proper name is “T. Edward Morris,” the claimant under the judgment is without proof that the judgment was against the defendant in his proper name, and accordingly the decree should be in favor of the other claimant under the order drawn upon the special master.</p> <p>2. The law knows of one Christian name only.</p> <p>3. It must be stated with certainty who are the parties to the suit, and actions to be properly brought must be commenced and prosecuted in the proper Christian and surnames of the parties.</p>

<p>1. Property in this state specifically devised or bequeathed by a nonresident decedent cannot be included in the appraisal in assessing the ratio tax imposed by tbe Transfer of Property Tax act of 1909, as amended in 1914, on tbe estates of non-resident decedents, such property being excluded by the last paragraph of section 12 of the act.</p> <p>2. A successful appellant from an assessment on the transfer of property is not entitled to costs.</p>

<p>Where the delay in settling an estate is not unusually great, money paid by the executor for his official bond to. a surety company may properly be allowed on the settlement.</p>

<p>On appeal from the orphans court of Hunterdon county.</p>

<p>1. Undue influence which will vitiate a will must be such as so far to destroj7 the free agency of the testator as to constrain him to do' that which is against his will, or that which he would not have done if he had been left to himself. It must be some species of moral or physical coercion, which, under the conditions in which he was placed, he was unable to resist—no matter from what source it comes or what character it appears in, whether it be in the shape of physical force, threats, importunity, or other species of domination.</p> <p>2. U.pon the shifting of' the burden of proof to the proponents upon this subject, and assuming that the burden of proof is imposed upon them, it is necessary in determining whether they have successfully borne this burden that regard be had (1) to the amount of the1 estate at her disposal at the time of executing the will; (2) the natural objects of her bounty; (3) her age, health and ability to resist coercion or importunities which might destroy her free will; (4) her consciousness of the amount of her property and the natural objects of her bounty.</p> <p>3. When one possessed of a large estate disposes of it by will, favoring children forming part of his household to the exclusion of .other children equally the natural objects of his bounty, without any reason appearing for such discrimination, and his condition is such that he is susceptible of coercion and is under the influence of the favored children, the inference of undue influence is much stronger than in a case where, at the time of making the will, the estate is so meagre as to hardly warrant a division; therefore the value of this estate at the time the will was made tends in a measure to negative the, inference of undue influence.</p> <p>4. Evidence Held to fail to prove either expressly or by justifiable and fair inference from circumstances that influence was in fact exerted, and that it was exerted to dominate and control the will of the testatrix and coerce her to make a testamentary disposition of her property which she would not otherwise have made.</p>

<p>A hag a right of, action against B for the breach of a covenant contained in a deed from A to B by which the latter assumed to pay an outstanding mortgage upon the premises conveyed. B has a right of action against O arising out of the breach hy C of a similar covenant contained in a deed for the same premises made to him by B. A further has an equitable right to enforce against O by way of subrogation the covenant of assumption contained in the conveyance by B to 0.—Held, that equity has jurisdiction to settle in a single suit the diverse rights and obligations of the parties arising out of the breaches of these two covenants of assumption.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 83 N. J. Eq. I9Jf.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master Biddle.</p>

J. Bq. 523. The order appealed from is entitled as above. By its terms it required the appellant to show cause why he should not be adjudged guilty of malpractice as a solicitor or counselor, or be suspended from practice as such or otherwise disciplined and punished for his misconduct, as might be decreed equitable and just.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is-reported ante p. 87.</p> <p>Forelosure of a mortgage. On May 9th, 1911, complainant agreed to convey to Thornton a lot for $1,000, $5 in cash at the signing of the agreement, and $995 on the delivery of the deed on July 1st, 1911. On May 23d, 1911, the complainant agreed to loan Thornton $4,600 to aid in the erection of a dwelling on the lot which he agreed to complete, ready for occupancy, on September 1st, 1911. Upon his proceeding with the erection of the building, and observing the terms of the agreement, the complainant was to advance the $4,600 in three payments. The loan was to be secured by mortgage which was to be a valid lien for all sums advanced, subject to no encumbrance, except such as might be waived by the lender. Thornton proceeded at once, in May or June, to erect the house. No deed was delivered or money paid until October 6th, 1911. On that day the deed was delivered, the mortgage executed, and the first installment of $1,533 paid by two checks to Thornton’s order, one for $995, and one for $538. The check for $995 was immediately endorsed back to the complainant in settlement of the balance due for the purchase price of the land. The check for $538 went into Thornton’s bank account and was mingled with other funds. Payments were made from the account for work done or materials furnished for several buildings then in course of construction, including the one covered by complainant’s mortgage. The $538 was not traced with any certainty to the payments for the last-named building. Subsequently, long after the mortgage was recorded, lien claims were filed by the appellants. The vice-chancellor advised a decree giving priority to the mortgage. The property was sold and by agreement the purchase price is held in the court of chancery subject to the result of the present appeals. It is less than the amount due for moneys actually advanced on the mortgage.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.</p>

<p>1. To turn separation by consent into a desertion, the complaining party, whether husband or wife, must put an end to the agreement by requesting a resumption of matrimonial cohabitation.</p> <p>2. Where the separation is shown or may be inferred to have originated with the wife’s consent, it will become desertion from the time the complaining party makes sincere overtures to terminate it.</p> <p>3. It is an inflexible rule in this state that a divorce will not be granted upon the uncorroborated admissions or testimony of a party to the suit, and this applies to every element in the proofs necessary to sustain the decree.</p> <p>4. In a suit for divorce the husband is a competent witness on behalf of his wife.</p> <p>5. Where the testimony of the wife shows that, after living for a time separate from her husband, she made sincere overtures to terminate such separation and to resume matrimonial cohabitation, and that her husband refused and persisted continuously in such refusal for a period of two years, although he was free and able to resume matrimonial cohabitation if he had desired to do so, and the wife’s testimony is corroborated by that of her husband and another witness, willful,- continued and obstinate desertion justifying a decree of divorce is established.</p>

<p>On appeal from a decree of tbe court of chancery advised by Vice-Chancellor Learning.</p>

<p>On appeal from a decree of tlie court of chancery advised by Advisory Master Charles H. Hartshorne.</p>

<p>On appeal.from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 84 AT. J. Eq. 851.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.</p>

<p>1. A husband, charging his wife with adultery, in full possession of all the proofs bearing upon the situation, continuing to occupy the same bed with her, engaging from time to time in marital intercourse, will be precluded from enforcing his remedy on the ground that he had condoned the offence.</p> <p>2. To establish the charge of adultery in the absence of positive proof, the probabilities must be such as to enable a reasonable and just man in the exercise of his discretion to draw a satisfying inference of the defendant’s guilt.</p>

<p>1. The opening of a decree in chancery, entered by default, rests in the discretion of the chancellor, and a refusal to open such decree will not be reviewed by this court where there is no abuse of such discretion shown, and it is not the result of mistake or imposition practiced on the court of chancery.</p> <p>2. Notice to the defendant of an application for the issuing of an alias execution in a foreclosure case is not required if such application be made within six years of the entry of the decree.</p>

346. The bill states that by deed dated March 16th, 1844, Richard Warren, in consideration of natural love and affection for his wife Susan and his children Richard, George, William, Emeline, John, Robert and Mary, and of the sum of fifty cents, did grant, bargain, sell and convey unto Frederick Knighton certain described lands in the county of Merc'er, together with the buildings, * * * hereditaments, &c. “In trust nevertheless that he, the said Frederick Knighton, his…

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 69 N. J. Eq. 199.</p>

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Stevenson, whose opinion is reported ante ¶. 101.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. SJfi.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. SOI.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 37.</p>

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Griffin, whose opinion is reported ante p. 487.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.</p>

<p>On appeal from a decree of tlie court of chancery advised, by Vice-Chancellor Stevens, whose opinion is reported in 8J¡ N. J. Eq. 60k. ■</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported ante p. JrS'6.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master Charles H. Hartshorne.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches.</p>