clares that it holds the property, real and personal, in trust for the following uses and purposes: "To hold and possess or dispose of and convey the same by proper instruments of conveyance, as in its judgment may be deemed advisable, and to collect the principal of securities and reinvest the same from time to time." From this clause the respective parties draw diametrically opposing meanings. The complainant insists that the meaning of this clause is that the trustee has enjoined upon it the absolute duty of collecting the principal of securities; in other words, it draws from this clause the inference that the settlor intended to direct the trustee to collect the principal of securities, and therefore it has not only the duty cast upon it by law, but also the positive injunction of the settlor with respect thereto. The trustee, on the other hand, lays great stress upon the presence of the words "as in its judgment may be deemed advisable," and argues that they relate not only to the first part of the sentence concerning conveyances, but also to the last part of the sentence. It therefore repudiates the idea that it was directed to collect the principal of securities, and contends that the whole matter was left to its discretion, and it can only be chargeable if negligent. The trustee further argues that stocks are not "securities," and therefore, even if it is required to collect the principal of securities, this would not relate to stocks generally. I do not find it necessary to determine whether this clause should be construed so as to positively require the trustee, by force of its terms, to convert the securities, including the stocks, into money, and reinvest the same in authorized securities, because I think the result of a fair reading of this clause in any legitimate way is not to vest in the trustee any greater or other discretion than it vested in trustees generally. Differently stated, I think that this clause confides the property to the trustee to be dealt with as its judgment deems advisable, subject to those rules which govern trustees; that its discretion, in other words, was not to do unauthorized things, but to exercise its judgment concerning what authorized things it would do.

I do not find from the authorities that it is the rule to exempt trustees without a clear and unequivocal statement of intention to that effect made by the maker of the trust in the instrument creating or evidencing it. Ward v. Kitchen (Runyon, Ch., 1878) 30 N. J. Eq. 31; McCullough v. McCullough (McGill, Ch., 1888) 44 N. J. Eq. 313, 14 Atl. 123; Halsted v. Meeker's Ex'rs (Zabriskie, Ch., 1866) 18 N. J. Eq. 136; King v. Talbot, 40 N. Y. 90; Adair v. Brimmer, 74 N. Y. 539; Clark v. Beers, 23 Atl. 717, 61 Conn. 87; Spratt v. Wilson, 19 Ont. 28; Kimball v. Reding, 31 N. H. 352, 64 Am. Dec. 333. In the case of Tuttle v. Gilmore (Ct. of Errors, 1883) 36 N. J. Eq. 617, the clause limiting the liability of the trustee provided that he should

not be liable or responsible for any other cause, matter, or thing except his own willful and intentional breaches of the trusts therein expressed and contained. The present chancellor, in writing the opinion of the court, said: "It is a breach of trust for the trustee to speculate with trust funds for his own gain, but it is no less a breach of trust to make unauthorized investments To do so knowingly is a willful and intentional breach of trust. In my judgment, it is a willful and intentional breach of trust within the meaning of this clause to knowingly do any act hazarding trust funds, in violation of a duty imposed on a trustee. That this construction may leave but little force to the clause is no reason why it should not be adopted." It will thus be seen that it is settled in this state that a clause restricting the responsibility of the trustee in terms much broader and more comprehensive than in the case at bar was held not to exonerate the trustee. In the same case, the court holds that "a strict rule of construction should be applied as against the claim of restriction." I therefore conclude that this trustee is chargeable with the difference between the price at which the 74.27 shares were sold in 1903 and 1904, namely, about $200 per share, and $360 per share, which I find to be the price at which it could have been sold at any time within five years after the date of the execution of the declaration of trust.

8. The remaining question relates to the matter of compensation to the trustee. While it was urged by the complainant in her brief that there should not be any allowance of commissions to this trustee, I can perceive no legitimate ground for withholding the same. It is true that in certain respects this trustee is found by the court to be subject to surcharge; but its conduct has not been willfully wrong, nor has it confused accounts, unwarrantably used trust moneys, or done any of the things which have been held to di entitle trustees to compensation. It is, of course, true that a general rule of law applies alike to those possessed of small means as well as those possessed of large; but it is equally true that where a trustee is possessed of very large resources, as this trustee is, and therefore nothing that it has done could possibly jeopardize the interests of the cestui que trust, and the latter would in every event receive all that the court found due to them, a different situation exists than if a trustee of meager resources should make unauthorized investments, and thereby jeopardize the interests of the cestui que trust, and make it possible that they would lose what ought to come to them. I see no reason for treating this trustee in any other than the normal way in fixing its compensation. The discretion of this court in this class of cases as to the amount to be allowed is unfettered by statute, and the compensation should be based on the nature and amount of the services rendered and the risk incurred by the trus

tee. Van Houten v. Van Houten (Ct. of Errors, 1889) 45 N. J. Eq. 796, 18 Atl. 842.

Holding this trustee, as I do, to a strict accountability, I think that its allowance should be commensurate with such responsibility. If the contention of the trustee was found to be sound, and it was only chargeable for negligence, and would be held to have done its duty if it merely retained the securities and collected the income, then I think a small allowance would compensate it fully for its responsibility. I am only speaking of an allowance upon principle, because, under the terms of a declaration of trust, it was to receive 5 per cent. upon the income, and it has already, under such clause, taken its commissions on income. But I think that where a trustee has a very large estate, such as this one was, of a most varied character, handed over to it, and is required by the rule, applied to it by the court, to exercise due diligence in the calling in of all unauthorized investments and the duty of investing in authorized securities, it should be paid a proper sum to compensate it for this labor and the responsibility and risk involved. In view of the rule which I apply to this trustee, I do not think that 4 per cent. upon the amount of principal is too large a sum for the time, labor, responsibility, and risk involved. It had the estate in its charge from 1898 to date, and, in addition to the ordinary duties in an ordinary trust, there were unique duties imposed upon this trustee, because, as has been before stated, many of the apparent securities turned over were worthless, and that fact could only be ascertained after patient investigation and much trouble, and in each instance it had to take the risk of its conduct. And, with respect to the valuable property, it performed its duties well; the surcharge resulting from a misconception of duty, and not from a willful disregard thereof. In the Van Houten Case, cited above, the Court of Errors set the figure as 31⁄2 per cent. I think the additional 2 per cent. allowed by me in this case fairly represents the additional services and risk involved.

Application is made by the various counsel for costs, including counsel fees, to be paid out of the estate. This seems to be of the class of cases in which, under the prac tice and as a matter of authority, allowances should be made. Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157.

The matter of the amounts may be settled upon the settling of the decree, which will be done upon notice.

TABER v. TABER.

(Court of Chancery of New Jersey. October 3, 1904.)

1. DIVORCE-DEFENSES-CONDONATION.

Condonation is the forgiveness of the offense followed in fact by a reconcilation, in which the wife is reinstated to such conjugal

cohabitation as may be adapted to the circumstances of the parties.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 169-187.] 2. SAME EVIDENCE.

In an action for a divorce, evidence examined, and held not to show condonation by the wife of the husband's adultery.

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Divorce, § 451.]

Bill for a divorce by Laura Taber against Frank Taber. Decree for complainant. Griggs & Harding, for complainant. Coult, Howell & Ten Eyck, for defendant.

STEVENS, V. C. This is a suit for divorce on the ground of adultery. The parties were married on March 31, 1897, by Rev. Dr. Owens, pastor of the East Side Presbyterian Church of Paterson. They continued to live together until the fall of 1902. After one or two temporary separations of a few weeks duration, during that fall, they finally separated on December 31, 1902. This suit was commenced in June, 1903.

The evidence relied upon to support the complainant's case consists of defendant's admissions, and the alleged presence of gonorrhea and syphilis, symptoms of which are said to have appeared shortly after the act confessed was committed. There is no evidence tending to show guilt outside of these. The defendant says that, while he admitted committing adultery with a prostitute in New York City, he, in fact, did nothing more than accompany her to her room; and he explains the presence of the disease that he admits he had by saying that it was not gonorrhea or syphilis, but a disease whose symptoms resembled gonorrhea and which he had had twice before in his childhood. The defendant's evidence was given with so much apparent sincerity that it necessarily produced a favorable impression. It is perfectly apparent that he was devotedly attached to his wife and child; that he sincerely repented of the wrong done them, by what he himself admits to have been a very disgraceful occurrence; and that he made extraordinary efforts to bring about his wife's return. Whether it would not have been better for the wife to have remained at his home, under the conditions to which they both appear to have assented, I shall not undertake to say. I have merely to decide the legal question.

After a careful consideration of the case, I am forced to the conclusion that the weight of the evidence is that defendant did commit adultery. The defendant owned a farm in the neighborhood of Ridgewood, which he himself cultivated. In the summer he and his wife were accustomed to take boarders. He appears to have become dissatisfied with this mode of life, and in the winter of 19011902 procured employment in New York as a salesman. He gave up this employment on March 29 or 30, 1902. The day before he left he says that, being tired, he stopped

went to the room with her, and after being there a very short time broke away without having had intercourse. His statement puts him in the attitude of one who, overcome with shame at his situation, had neither the ability nor inclination to indulge his passion. About two weeks after this time appeared a disease whose symptoms, it is admitted, were, in all respects, similar to those of gonorrhea, and he was actually treated by his physician, Dr. Vroom, for gonorrhea. In the following August and September there appeared some of the symptoms of syphilis, and he was actually treated by two physicians, Drs. Doty and Demund, independently, for that malady. Whether he had this latter disease in mild form is left doubtful by the evidence.

Without discussing the evidence at length, I shall briefly state why I think the defendant's account of the matter is improbable. He made a confession of adultery, not only to his wife, but to Rev. Dr. Owens, Mrs. Taber's pastor, who was called into a family consultation on the subject. Dr. Owens says: "I can only say that he admitted that he had been guilty of adultery, and that he had become infected by such conduct, and, consequently, he was under medical treatment." Still more explicit is the defendant's own account of what he told Dr. Owens. He testifies: "I said that I knew I had wronged my wife very dreadfully; that I had done so under great temptation, and was very sorry the moment it was over," The confession was not made without reflection, and in a moment of surprise. Six months had elapsed since the offense, and his malady, known to his wife as early as April, had become the subject of anxious consideration by her family. It was made at a time when the defendant was doing everything in his power to regain his wife, who had then left him, and was under a pressing necessity of telling the simple truth, if that which he now states were the truth. The occurrence as he now relates it was less disgraceful than that which he confessed to. If true as related, he would have stood forth as one who had been tempted and who had at the last moment resisted temptation and overcome it. Men under the stress of an impending calamity not infrequently seek to avert it by falsehood. It is, however, difficult to imagine that any man, in his senses, would resort to a falsehood which would involve him in misfortune, rather than tell the truth which would, at least, tend to free him from it, and which would, in any event, give him a legal right to the society of his wife and child.

There is another circumstance which must be adverted to. His confession was coupled with the mention of a friend of his by the name of Scott. This is his wife's version of the conversation on that point: "I said, "Tell me truly, were you anywhere with your brother Ed. Taber?' He said 'No.' I said, 'Were you anywhere with Raymond Scott.' He didn't say anything. He merely burst out crying, and then said, 'I have been untrue to you.'" The defendant's version of this conversation is: "Then she tried to lay the blame for my going wrong on two other parties. I told her it was not the case in one instance, and in the other I didn't give any answer at all." The wife testifies that on March 29th Scott met him in the city. After most of the evidence had been put in, I stated that it would be proper to call Scott, and an adjournment was had which afforded an ample opportunity either to produce him or take his testimony on commission. No satisfactory explanation of why he was not examined has been given. The defendant does not say in his testimony that Scott accompanied him to the music hall, nor, on the other hand, can I find that he says, in so many words, that he went alone. In addition to the evidence of confessions is the presence of venereal disease. The defendant denies having had it. His suggestion now is that what he had was simple urethritis-the same disease that he had when a boy. It is a very singular coincidence that this disease should have broken out two weeks after the visit to the music hall. It is rather remarkable, too, that not only three of the doctors whom he consulted should have treated him for either gonorrhea or for syphilis, but that the defendant himself should have thought or feared, as he evidently did think or fear, that the disease was of a venereal character.

On

The defendant's counsel, in his argument, chiefly relied upon condonation. The pertinent facts are these: The presence of the disease gave rise to suspicion as early as April or May. He denied improper relations with any one. In June, the disease continuing, and the complainant becoming more uneasy, she left his room. At the end of August he made the confession. His wife did not leave his house until the end of September. She remained away until October 11th. that day, at a family meeting, Rev. Dr. Owens having been called in consultation, she decided to return, but only on condition. The condition was, in the words of Dr. Owens, that he would not ask that his wife should come back and be a wife to him, but simply that she would remain in the house. She left him again, about October 20th, on a visit to her sister in Paterson. On November 12th, the defendant's sister was to be married at Patchogue, Long Island, where his mother lived. The complainant consented to go to the wedding, and it was arranged between them that they should spend the winter at

his mother's house at Patchogue, but still on the above-mentioned condition. At the last moment, however, Mrs. Taber refused to go there, because, as she says, he had, the day before, insisted that she should share his room; that she was doing him a great injustice in thinking that he then had any disease. She remained in Paterson until December 3d. During the interval between the wedding on November 12th and December 3d the defendant gave up farming and hired a flat in Brooklyn, where, his wife refusing to return to him, he began to keep house with his mother. During that interval two important letters were written, one by defendant to complainant, suggesting that he might, because of the separation, commit suicide, and the other by defendant's brother Edward, a New York attorney, to Irving Dey, a brother of complainant, threatening that, if complainant did not return, a disclosure of certain disgraceful conduct on the part of complainant's father might be made. The complainant says that she was so far operated on by these two letters and by her destitute condition that she resolved to return. Defendant says that she gave as her reason for returning that he had sent her, with an imploring letter, the child's winter coat. On her way to his Brooklyn residence she stopped at the home of defendant's brother-in-law, Dr. Northrop, a practicing physician. Dr. Northrop says, and in this all parties agree, that she expressly stipulated for two conditions. One was that if he ever had anything to do with any other women she would leave him, and the other was that they should sleep in different rooms. She remained at her husband's flat from December 3d to December 31st, and then left him. Her reason was, as she says, that he kept asking her to resume marital relations, and that her situation be came unendurable.

In an

Do these facts show condonation? In Bernstein v. Bernstein, Pro. Div. (1893) 302, it is said: "Condonation is a conclusion of fact, not of law, and means the complete forgiveness and blotting out of the conjugal offense, followed by cohabitation." earlier case (Dance v. Dance, 1 Hagg. Ec. 794) Lord Stowell had used language very pertinent to the case in hand. "The parties had separate beds. They never, as far as appears, bedded together afterwards, and therefore what has been said of condonation is quite of the question. There must be something of a matrimonial intercourse presumed in order to found it. It does not rest merely on the wife's not withdrawing herself. But the court does not hold condonation so strictly against the wife from whom it looks for a long-suffering and patience, not to be expected nor tolerated in the husband." In Goeger v. Goeger, 59 N. J. Eq. 15, 45 Atl. 349, V. C. Emery used the following language: "Forgiveness of the offense, whether it be evidenced by words or acts, is not necessarily legal condonation, which requires the forgive

ness to be followed in fact by a reconciliation, in which the wife is reinstated to such conjugal cohabitation or connubial intercourse as may be adapted to the circumstances of the parties." It has been often held that remaining in the same house after knowledge of the offense does not constitute condonation. Westmeath v. Westmeath, 2 Hagg. Ec. Supp. 1, 118; Jacobs v. Tobelman, 36 La. Ann. 842; Harnett v. Harnett, 59 Iowa, 401, 13 N. W. 408.

These expositions of the meaning of condonation show clearly that it is something more than forgiveness, in the sense of ceasing to harbor resentment. It is not only a blotting out of the offense from the mind and heart of the person forgiving, but a restoration of the offender to his former position. If the wife says: "I will cease to entertain feelings of resentment against you for the wrong you have done me. I will go back and be your housekeeper, but I will not maintain wifely relations with you"-it is manifest that the condonation is not complete. Great stress was laid by counsel upon a letter written by the complainant to Charles Taber on the day she finally left her husband's home. She says: "Every one supposed that wifely relations were not to be thought of, at least for the present;" and further on: "If your brother had acted like a man about things, instead of making such numerous propositions or any proposition at all, for the present at least, yes at all-for I was the one propositions should have come from—it would have changed things." This letter, fairly interpreted, seems to me to militate against counsel's position. It shows very plainly, first, that there were to have been no wifely relations for the present; and, secondly, and this is the important point, that the complainant had reserved to herself, and to herself alone, the decision whether there should be any in the future. It is this explicit reservation on her part which precludes the idea of condonation. It might perhaps be open to argument whether it must be shown that there has been an actual resumption of sexual intercourse; whether the condonation might not be complete where, the parties being apart, there was forgiveness coupled with an agreement to live together again and to resume sexual intercourse when, for example, the family physician should pronounce all danger of infection over, and where the parties actually came together again in pursuance of such an agreement. No such question is to be dealt with here, and I express no opinion about it. There was no agreement for the resumption of intercourse, present or future. On the contrary, the agree ment was that there should be no "wifely relations, at least for the present," and that whether there would be in the future would rest entirely with the wife.

I think the decree must be in favor of complainant.

VAN HOUTEN v. HALL et al.

jurisdiction; for, if the right to enforce this decree is not effected by the appeal, it would

1906.)

APPEAL-TRANSFER TO APPELLATE COURTPROCEEDINGS IN TRIAL COURT-JURISDIC

TION.

The Court of Chancery entering a final de cree of distribution in a suit construing a will and determining the rights of beneficiaries thereunder has no jurisdiction pending an appeal from a part of the decree to permit, on the petition of appellants, the enforcement of the other part of the decree, but an application therefor should be made to the Court of Errors and Appeals, which has jurisdiction of the subject-matter of the suit.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2210.]

Bill by Rachel Van Houten against Joseph C. Hall and others for distribution of the residue of the estate of Rachel Van Houten, deceased. From a decree of the Court of Chancery (64 Atl. 460) ordering distribution, certain of the parties appeal. Heard on petition to permit enforcement of a portion of the decree. Petition denied.

Preston Stevenson, for petitioner. Robert Williams, for respondents.

BERGEN, V. C. From the final decree of this court ordering the distribution of a legacy under the will of Rachel Van Houten to be made per stirpes, and not per capita, between the devisee of the child of her deceased son and the children of her daughter, the children have appealed. The appellants now petition this court to permit the enforcement of the decree in their favor to a substantial extent, consenting that the devisee of the child of the son may participate in such distribution, but only to the extent she will be entitled should the appellants succeed in the Court of Appeals. In support of their petition the petitioners argue that, in any event, they will be entitled to at least what has been decreed to them by this court, and that, in carrying out the decree, the status will not be changed to the prejudice of the appellees. I can find no precedent permitting such a partial execution of a decree in a cause removed to, and now within, the jurisdiction of the Appellate Court by the act of the party asking its partial enforcement in this court. The purpose of the proceeding in which the decree appealed from was made was to determine the rights of numerous parties to a fund, the distribution of which requires the construction of a last will and testament. What view the appellate court may adopt it would not be proper for me now to anticipate, for it might reach a conclusion, not only different from the views expressed in support of this decree, but also at variance with the claims of the appellants.

In addition to what I have stated, I am of the opinion that during the pendency of this appeal this court ought not to partially execute it in behalf of one who, by his own act, has removed the proceedings to another

part of it, and to execute the entire decree would manifestly destroy the subject of the appeal. Penna R. R. Co. v. Nat. Docks Ry. Co., 54 N. J. Eq. 647, 35 Atl. 433. That these petitioners are in great need of the money, the receipt of which they have postponed to a future time by their own appeal, is no reason why this court, if it has the power, should partially execute the decree in favor of those who complained of it. If the executors or trustees choose to act upon the decree made in this court, and to pay out part of the sum to the present applicants, on the ground that they will be entitled to at least that much on any decree which would be made in the Court of Appeals, they can do so taking that risk. The present application should be made to the Court of Appeals, which now has jurisdiction of the subject-matter, for any order that this court might make would itself be subject to appeal, thus creating a confusion that ought to be avoided, and I must decline to make any order for a partial distribution, except with the consent of all the parties interested in the fund.

(75 N. J. L. 82)

HART v. DENISE et al. (Supreme Court of New Jersey. June 10, 1907.) TRIAL-COMPROMISE-VERDICT.

In an action for services rendered, where the court instructed the jury that they could fix under the evidence what they thought was fair and right, that the plaintiff was allowed less than he sought, and more than the defendant claimed he should have received, was insufficient to show that the verdict was by way of compromise.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 740.]

Action by John Hart against Lewis A. Denise and others. Verdict for plaintiff. Rule to show cause discharged.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

John Sykes, for the rule. Barton B. Hutchinson, opposed.

FORT, J. This cause was tried at the Mercer circuit before the court and a jury, with a verdict for the plaintiff. The action was for compensation for services rendered to Louisa A. David, deceased, in her lifetime, by Martha Hart, as nurse and attendant. The plaintiff was the assignee of the claim of Martha Hart.

The proofs seem to show services, and the amount of the verdict was much less than the amount of the plaintiff's alleged claim. The record does not show any exceptions to evidence or to the charge, and but a single ground is relied upon in the brief of the counsel for the applicant for this rule, namely: "(7) The damages awarded by the verdict are not based on any sound reasoning or up