MILLER v. HILLSBOROUGH MUT. FIRE Ass'n. (Court of Chancery of New Jersey. March 14, 1889.)

INSURANCE-ASSIGNMENT OF POLICY.

Where a fire insurance company issues a policy with power to assign it, the assignee is not affected by any conditions not shown in the policy of which he had no notice, although they were known to his assignor.

G. S. Grovesnor, for complainant. Bartine, for defendant.

the court of last resort in this state has held that in this case implication arising from facts not expressed in the contract between the company and Rea did not extend to or prevail between the company and the assignee of Rea; because Miller had a right to believe that all of the conditions which could bind him were annexed to the policy, and, as the company had issued such policy with the power to assign it, the assignee would J. D take it free from any latent or secret equity. And I think that this view of the case may also be considered as fairly within the cases of Woodruff v. Depue, 14 N. J. Eq. 168, and the cases therein referred to; followed in De Witt v. Van Sickle, 29 N. J. Eq. 211; Traphagen v. Hand, 36 N. J. Eq. 384; Sprague v. Drew, 6 Atl. Rep. 307. I only refer to these cases, showing that the rule has been long established, because counsel for the company seemed impressed with the conviction that, as the case now stands on the proof, the plain direction of the court of errors does not reach the case; whereas, I think, as above expressed, that it not only does, but that there is abundant authority to sustain that view, with all of the evidence now in. I think the injunction should be made perpetual. complainant is entitled to costs.

The

(45 N. J. E. 116)

APPLEGATE v. APPLEGATE. (Court of Chancery of New Jersey. March 18, 1889.)

HUSBAND AND WIFE-MAINTENANCE-MARRIAGE. Where a man and woman declare themselves to be married, and are recognized as such by their relatives and friends, and cohabit for years and a child is born to them, the woman is estopped to claim support as a wife from one whom she mar ries before the death of the man with whom she had sustained the relation of wife.

BIRD, V C. An action of law is pending upon an insurance policy held by the complainant. The defendant, having issued the policy, set up in one of its pleas that the house which was burned was not occupied at the time, and that that was in violation of one of the conditions of the by-laws of the company. There were a large number of conditions annexed to the policy, but the one in question was not; nor had the complainant any knowledge of this one, although his assignor had such knowledge. The aim of the bill is to have the defendant company restrained from offering any evidence under said plea in the said action at law. But the defendant insists that, Rea having had full knowledge of the said law, such knowledge is imputable to his assignee, Miller, as fully as though the condition had been set forth among the other conditions annexed to the policy. I think that, if the opinion pronounced by Mr. Justice VAN SYCKEL in the court of errors, (44 N. J Eq. 224, 14 Atl. Rep. 278,) when this case was there for consideration upon demurrer, is attentively considered, it will appear very clearly that it was declared by that tribunal that, when an insurance company, though a mutual, offers to insure with a certain set of conditions annexed to its policy, and such offer and conditions are accepted, it cannot afterwards insist upon other or additional conditions of BIRD, V. C. The prayer of this bill is which the insured had no knowledge, detri- that the defendant be ordered to furnish suitmental to the insured, although at the time able support to the complainant, who claims the said additional conditions may have been to be his lawful wife. The defense is that annexed to or incorporated into the by-laws; she is not his lawful wife, because at the and I think that it will also further clearly time of the performance of the marriage cerappear that the court means to be under-emony she was the wife of another man by stood as holding that, whether the person the name of Lawson, who was then living. originally insured has knowledge or not, the person to whom he may assign such policy takes it free from such additional conditions, provided he has no notice thereof at the time of his taking such assignment. And yet the chief, if not the only, ground of defense upon final hearing, is that Rea, the person to whom 1. Lawson had the complainant accompany the policy was first issued, had notice of the him to his father's house, where he introduced condition which the company now seeks to her as his wife. This was after he had been set up in the action at law as a protection, visiting her very frequently, and after she and that notice to him is enough to justify a had also frequently called upon him at his court of equity in charging his assignee, father's house. From the time of this introMiller, with knowledge. While it is true duction his parents and his sisters underthat the general doctrine is that the assignee stood and believed that they were married, takes subject to all the rights and equities received them into their house supposing that which exist between the original parties, they were married, and in all respects treatthere is clearly no room for doubt but that ed them as sustaining the relations of hus

S. G. Narr, for complainant. H. N. Barton, for defendant.

The proof of such prior marriage is twofold: (1) The statements or admissions of the parties that they were married; and (2) cohabitation for the principal part of the time between the period of such statements and the alleged second marriage.

band and wife to each other. When he in- |2 Add. Cont. 848; Bissell v. Bissell, 55 Barb. troduced her to one of his sisters, although 325; Hutchins v. Rimmell, 31 Mich. 127; she was known to them before, he said: "I Schouler, Husb. & W. § 11. Being once have been getting married, and this is my bound, they are bound forever. Id. § 12. Mutwife." To Mrs. Nelson she spoke of Law-ual consent, as in all contracts, brings them son as her husband, and Lawson spoke of the together, (Id.; Fenton v. Reed, 4 Johns. 52; complainant as his wife. Besides these ver- | Londonderry v. Chester, 2 N. H. 268; Reed bal admissions and statements, in the pres- v. Reed, 52 Mich. 117, 17 N. W. Rep. 720; ence of each other, that they were married, Teter v. Teter, 101 Ind. 129; Cheney v. Arthey prepared a formal certificate of marriage, nold, 69 Amer. Dec. 615 and note, where such as is usually certified to by ministers of many authorities are given; 2 Greenl. Ev. the Gospel, and given by them as evidence of §§ 460, 461;) the real question being in every the solemnization of marriage, agreements. such case whether the proof adduced is sufTo this they appended the name of a most ficient to establish such first alleged contract worthy and highly respected clergyman, who of marriage. If it is, it in all cases prevails, knew nothing of them or the certificate until except upon indictments for bigamy and in shortly before this hearing. This pretended actions for crim. con.; and I have not been certificate the complainant had the possession able to find any case which has directly adof, and produced it in the presence of two of judged that if such first alleged marriage be the sisters of Lawson, and desired them to unequivocably established by the proof of the examine it in proof of her marriage to their mutual consent of the parties, as I think it brother. Afterwards, Lawson himself had has been in this case, that then such former the possession of this paper, and it was found marriage must give way even in criminal in a bureau drawer in his father's house, in cases. But numerous cases have been found whose house Lawson died nearly three months where marriage has been presumed from coafter the alleged second marriage of the com- habitation, which presumption the courts plainant to the defendant. have held should give way to save the accused 2. The cohabitation referred to consisted from the consequences of the crime of bigin their acting as man and wife at the house amy. I think a careful study of the authorof his parents, and of her parents, and of his ities will show this is a fair statement of the renting three different houses, one after the law. Camden v. Belgrade, 75 Me. 126; Jones other, and living in them for several months v. Jones, 48 Md. 391, on which page it is with the complainant, and in all respects clearly admitted that, in case of direct proof, treating her as his wife. While so keeping the former marriage must prevail; Com. v. house they were visited by his parents and Stump, 53 Pa. St. 132. For further authorbrothers and sisters, highly respectable peo-ity on this subject, see 1 Bish. Mar. & Div. ple, and by other respectable citizens in the c. 25, §§ 438-441, and the cases in the notes, neighborhood. His sisters assisted them in where the true doctrine and litigations are making preparations for housekeeping, and stated with fullness and precision. Mr. in putting the house in order for that pur- Bishop says: "These general elements of pose. While so keeping house the complain- proof, namely, cohabitation, reputation, decant gave birth to a child, and about that time larations, conduct, and reception among one or more of the members of Lawson's friends and neighbors as married, are comfamily was or were present. They thus co- monly in a perfect case found in combinahabited, I think, for more than a year, either tion. Together they make a complete case." in houses which had been rented by Lawson, I am of opinion that in case a woman brings or in the home of her parents. They were her suit for alimony, and the defense is that, separated for a short time before the com- at the time of her alleged marriage with the plainant's alleged marriage to Applegate. It defendant, she had a husband living by a is not at all satisfactorily stated what were former marriage, supported by proof of her the grounds of their separation; whether it own declarations of such prior marriage, alwas because of alienation of affection or ne-lowing herself to be introduced as the wife of cessity. Many other statements of the complainant and Lawson appear in the testimony of witnesses, which I have not adverted to, because not having been made in the presence of each other, and so far as they have any force at all are statements in their own hehalf, and are regarded as illegal in this controversy as against this defendant.

Was the first alleged marriage a valid one? If so, it must prevail over the second alleged marriage, although such second marriage was solemnized by all the statutory requirements, while the former was not. There may be valid contracts of marriage at common law. Vreeland v. Vreeland, 18 N. J. Eq. 43; Goldbeck v. Goldbeck, Id. 42; Wilson v. Hill, 13 N. J. Eq. 143, 145; 1 Bish. Mar. & Div. 513;

such alleged former husband by him, cohabiting with him for many months in houses rented by him, giving birth to a child which was recognized as his, and visiting and being visited by their friends, there is abundant proof sustaining the relation of husband and wife, and she is estopped and her suit must fail. I will so advise.

STEWARD et al. v. MIDDLETON et al. (Court of Chancery of New Jersey. March 20, 1889.)

JUDGMENT-RES ADJUDICATA-WILLS.

est of one S. in certain land, a refusal to quash the 1. In attachment proceedings against the interwrit is not res adjudicata as to certain trustees

ties to the attachment suit.

claiming an interest in the land, who are not par- | by will, to dispose of any interest which her 2. Revision, N. J. p. 638, § 9, authorizes a married husband might have in her land, such as he woman to dispose of her real and personal proper- had in this case, having had issue by her, ty by will, but provides that the act shall not au- born alive, in lawful wedlock, and surviving thorize a married woman to dispose by will of any her. interest or estate in real property to which her husband would be entitled on her death. Held, that a married woman can, with the written consent of her husband, dispose, by will, of his right as tenant by the curtesy in her real estate.

1. Since the trustees were not parties to the attachment proceedings, and since they have an interest in the land given to them by the will, supposing it to be nothing but a Bill by Steward et al. against Middleton power to sell, it cannot be said that the matet al. to restrain certain attachment proceed-ter in dispute has been once heard and deterings.

T C. French, for complainants. J. F. Harned, for defendants.

mined as to them.

2. The important question is, since by the statute a married woman can make a will disposing of her real estate, can she, with BIRD, V. C. An injunction is asked to re- her husband's written consent thereto, disstrain a creditor in an attachment proceeding pose of his right as tenant by the curtesy from making his money out of the real es- therein? The statute (Revision, p. 638, § 9) tate in which the defendants say he has an which authorizes a married woman to make interest as tenant by the curtesy, but in a will disposing of any real or personal propwhich the complainants say that Steward has erty expressly provides that nothing therein only such interest as was devised to him by contained shall be so construed as to authorthe last will of his wife. The complainants ize any married woman to dispose, by will, insist that Steward has no legal interest in of any interest or estate in real property to the land attached, but only an equitable, and which her husband would be at death enthat the legal title is in the other complain- titled by law, but declares that such interest ants, and that, if the attachment is allowed or estate shall remain and vest in the husto be consummated, a cloud on the title will band the same as if such will had not been thereby be created which will greatly impair made. On the motion to quash in the cirthe value of the lands. The wife of Steward cuit court, Mr. Justice PARKER decided that made her will, in and by which she devised the force of the statutory provisions were not to B. and J. Kain, two of the complainants, overcome by the consent of the husband, and to the survivor of them, a house and lot, under his hand and seal, that the wife should in trust, that they or the survivor of them make such disposition of her real estate. should permit her husband, one of the said He said: "It matters not that the husband complainants, to occupy said house and lot assented to the will. It matters not that during his life-time, he paying the taxes and the will purported to give to the defendant other municipal charges, and the interest on substantially the same interest in the land a $500 mortgage thereon, and keeping the that he took as tenant by the curtesy. The premises in repair; but in case he should statute by virtue of which a married woman prefer not to occupy said house and lot, then can make a valid will to pass real estate exthe said trustees were to hold the same in pressly forbids the right her husband would trust, and rent the same, and after paying take at her death from passing by will, and said charges, and keeping said premises in it remains as if the will had not been made." repair, were directed to pay the remainder of Middleton v. Steward, 9 N. J. Law J. 174. It the interest to the said complainant during his would be my plain duty to follow this decision life. The said trustees were authorized to were it not for the case of Beals v. Storin, 26 sell the said lot, and to invest the proceeds, N. J. Eq. 372, by which it appears that in and to apply the interest to the benefit of the Vice-Chancellor VAN FLEET's opinion, the said Steward; and after the death of Steward, husband consenting thereto, the wife could the lot, if unsold, and the proceeds, if sold, make a valid disposition, by will, of lands in she gave to her daughter. Steward indorsed which he had an interest at her death. It is on said will his consent thereto, under his to be observed, however, that at the time of hand and seal. As intimated, the attaching rendering his opinion in that case both the creditor levied upon Steward's interest in the husband and wife were dead, and the quesland. Steward entered an appearance for the tion as to the effect of such a disposition so purpose of moving to quash the writ, but consented to was no longer of any imporMr. Justice PARKER refused the motion, up- tance. He observed, however, that the will on the ground that the wife could not dis- was made with the consent of her husband, pose of any interest that her husband might and duly admitted to probate. I added: have in her lands by law after her death. "Before the passage of the act of 1864, a The trustees named in the will were not married woman could, with the consent of made parties to the attachment proceedings, her husband, make a valid will of her perand consequently were not in court before sonal property. Emery v. Neighbour, 7 N. the circuit judge. The resistance to this ap- J. Law, 142; Van Winkle v. Schoonmaker, 15 plication for an injunction is twofold: (1) N. J. Eq. 384. The act of 1864 removed the It is said that the matter is res adjudicata; disability of married women to make wills, (2) and that if this court has jurisdiction, but at the same time saved the rights of then the wife had no power, under the law, their husbands in their estates. Under it

*

the will of a married woman is valid without | year, with these additional provisions: "And her husband's assent, except as to his legal in case of general debility or sickness of the rights in her property. With his assent it is said Caroline Mowers, they are to see that absolutely valid. In the present case, the she is properly taken care of, and she is to property devised and bequeathed was prop-remain in the dwelling unmolested from us erty over which her husband, in her life- where she now dwells during her life-time, time, had no control, and which his creditors and at her death the whole property on said could not have reached for the payment of premises to belong to said John C. English and his debts. * His assent to her will Caroline W., his wife, their heirs and assigns was an effectual waiver of his claim to her forever, agreeable to the above-mentioned property after her decease, a renunciation of deed." It is proper to say the said deed, as his reserved rights, and is conclusive, not printed among the exhibits, has no habendum only against him, but against his creditors clause or any covenants; only the granting also. Silsby v. Bullock, 10 Allen, 94." I clause, and the description of the premises folthink there can be no doubt but that it is lowing. The complainant was living in a my duty to accept and follow such a clear small dwelling upon the premises at the time and explicit declaration of the law by the of the execution of this deed and agreement, chancellor. It may be added that in Wag- and continued to live there for 20 years. The ener v. Ellis, 7 Pa. St. 411, the court held insistment now is that the "general debility that the rule that the husband may consent and sickness" referred to in the agreement to the wife making a testamentary disposi- overtook her, and that the defendants, who tion of her personal estate, because he is re-stand in the place of John C. English and Cargarded in the law as her next of kin, and takes all at her death, when she dies intestate, applies to real estate when, under the law, he is entitled to the fee at her death. And I think that a careful study of the eleventh chapter of Reeve's Domestic Relations will satisfy the inquirer that the foundation of the rule requiring the consent of the husband to the wife's disposing of her personal property by will is that her property all became his at her death, if not before, upon his reduction of it to possession. In the case now before me, as in the case of Wagener v. Ellis, supra, the will effects no change in the rights of any one who can claim under the wife except the husband. I will advise a decree in accordance with these views, with costs.

(45 N. J. E. 120)

MOWERS v. FOGG et ux.

oline W., his wife, (John C. English having died, and David Fogg, one of the defendants, having married his widow,) refused, and have refused for five years last past, to see that she has been properly taken care of, although often requested so to do. They knew that her destitution was such that she was obliged to secure the aid she needed from other friends, to pay for which she had nothing. The bill is filed by the complainant to obtain relief according to the terms of the agreement. The prayers are that the defendants may be decreed to pay the said Mowers yearly during her natural life the sum of $6, and in case of general debility and sickness to see that she is properly taken care of, and that she may remain in the same dwelling unmolested, and that the said dwelling might be made tenantable, and that the said $100 might be decreed to be paid to her. As to the prayer for a decree directing the payment

(Court of Chancery of New Jersey. March 21, of $6 yearly, I must say that there does not

1889.)

BIRD, V. C. On the 31st day of July, 1862, the complainant, being the owner of a tract of land worth about $300, entered into an agreement with one John C. English and Caroline W., his wife, to convey the said lot to them, and did make an absolute deed of conveyance of the same to them, in which the consideration expressed was $100. At the same time they entered into an agreement with her, which witnessed that for and in consideration of the said deed they agreed to pay to the said Mowers every year during her natural life, the sum of six dollars per

seem to be any necessity for such a decree, since, if I understand the evidence produced, it has been paid according to the agreement. As to the $100, if it has not been paid as the deed expressly declares, I can find nothing in the evidence to warrant the belief that it is now due, r that it was to be paid at any particular time, or that it is due because of any special demand for it, or that there is any necessity for the interference of this court. It seems to me that if the complainant has a right to that sum of money from the defendants there is no obstruction to her recovering a judgment at law, and enforcing it by execution. By virtue of the agreement, English, in his life-time, was liable, and so was his estate after his decease, and so also was and is his wife. Nor do I find in the case any necessity for a decree making these moneys, or any others that may become due, liens upon the land in question; for it is not alleged that Mrs. Fogg is insolvent, nor, as intimated above, does it appear that the $100 is still really due and owing. So far as the bill seeks to enforce the contract to take care

George O. Vanderbilt, for appellant. Silas D. Grimstead, for respondent.

of the complainant in case of "general debility or sickness," I can find neither principle nor precedent upon which to base a decree in favor of the complainant. The au- VAN FLEET, Vice-Ordinary. The parties thorities all seem to be against the court un- to this appeal were the administrators of dertaking to enforce any such contract. Enoch Mount, deceased. Letters of adminHow can the court from time to time deter-istration were granted to them in September, mine what is meant by "general debility or 1878. In August, 1881, the respondent, sickness?" If it be possible within any eq- Clarence M. Slack, procured an account of uitable rule to settle it, in one instance, how the administration of the estate to be allowed can the court determine how long such "de- and confirmed by the orphans' court of Midbility or sickness" may continue? Or how dlesex county, in which an allowance for can the court determine when she is proper- commissions was made. The allowance aply taken care of, or how long such care pears on the credit side of the account in should continue, supposing it were possible this form: "Commissions on $27,438.99, for the court to establish a standard? I can $728.79." The appellant, George W. Mount, see no way by which this court can aid the did not take part in the preparation of this complainant; and this seems to have been account. He furnished none of the items the experience of every court which has been embraced in it, but they were all furnished called upon to inquire whether or not such by his co-administrator. Nor did the appelaid could be afforded. I refer to Wharton lant participate in having the account stated v. Stoutenburgh, 35 N. J. Eq. 266, Danforth and audited by the surrogate, nor in having v. Railroad Co., 30 N. J. Eq. 12; Rutan v. it passed by the court. His name appears in Crawford, 16 Atl. Rep. 180, 183; Clark's its caption, but he did not swear to it. As Case, 1 Blackf. 122, 12 Amer. Dec. 213, and he himself states, the only connection he ever notes on p. 217; Publishing Co. v. Telegraph had with the account, prior to its allowance, Co., 3 South. Rep. 449, 3 Amer. St. Rep. 758, | was that he saw it at the surrogate's office. and cases in note, 767; Wollensak v. Briggs, | In February, 1887, more than five years after 10 N. E. Rep. 23, and cases cited therein; the account had been allowed and confirmed, Chouteau v. Transportation Co., 4 West. Rep. 401, and cases cited; Ikerd v. Beavers, 7 N. E. Rep. 326; Wat. Spec. Perf. §§ 33, 40, 117; Fry, Spec. Perf. §§ 56, 58. The only exception that I can find to this rule is in cases where the court can interpose to prevent a breach of a negative covenant, and thereby in effect enforce an affirmative one; or, as clearly expressed by the lord chancellor in Lumley v. Wagner, 1 De Gex, M. & G. 615, 616, so that "by preventing the commis-fourth to the appellant and three-fourths to sion of an act may as effectually perform an agreement as an order for the performance of the act agreed to be done." The question of damages, so elaborately discussed in brief of counsel, I think cannot be favorably considered in this court, under the circumstances of this case. I will advise that the bill be dismissed, without costs.

(45 N. J. E. 129)

MOUNT v. SLACK. (Prerogative Court of New Jersey. April 6, 1889.) EXECUTORS AND ADMINISTRATORS-COMMISSIONS.

1. A general allowance of commissions, without direction as to how they shall be divided, does not amount to a determination that they shall be divided by equal shares.

2. Where the court at the time it fixes the amount of the commissions to be allowed also determines, upon due notice, the proportions in which they shall be divided, and records its determination on the account, the action of the court amounts to a judgment, and will not be changed except fraud or mistake be first shown.

(Syllabus by the Court.)

Appeal from orphans' court, Middlesex county; COWENHOVEN, O'GORMAN, and FREEMAN, Judges.

it is said, an order was made giving the appellant leave to swear to the account nunc pro tunc. That order is not before this court. A controversy having arisen between the parties as to how the commissions should be divided, the respondent applied to the orphans' court to apportion them; and that court, after hearing a large number of witnesses, made an order, in September, 1887, dividing them in the proportion of one

the respondent. That is the order which the appeal presents for review. There can be no doubt about the power of the orphans' court to make the order in question, provided its jurisdiction over the subject in this particular case had not been exhausted when the order was made. The 112th section of the orphans' court act (Revision, 776,) in substance declares that, where any difference arises between administrators in regard to the proportion in which the commissions allowed to them shall be divided, the orphans' court shall determine the same, having regard to their respective services. In a case between these same parties, this statute has been held to merely give the orphans' court power to determine how the commissions shall be divided, or what proportion each shall be entitled to take, but not to compel an actual division or payment in conformity to its judgment. Mount v. Slack, 39 N. J. Eq. 233.

Two faults are imputed to the order under review: First, it is said that the legal effect of a general allowance of commissions, without direction as to how they shall be divided, is to confer upon each accountant, where there are only two, a right to one-half of the