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marital relations and about continuing the, that it was impossible. That while in Colohome in Camden. That he did not succeed in rado he recalled a conversation that they had seeing her at that time. That he was in had on the subject of moving to Swarthmore, formed that his wife was “not at home." and that he wrote her that while he would do That within the next two years following he anything in his power for her happiness and made six or more trips to Swarthmore to see the happiness of the children, he could not his wife, for the purpose of arranging a home move to Swarthmore, and that such a thing in the city of Camden, and for her to return was impossible. That at one time, prior to and live with him, but that he did not suc- June, 1906, his wife told him that if he did ceed. That whenever he went there he was not like the house in which they were then told that she was not at home, although up- living in Camden, he could get out. During on some occasions he believed that she was, in Atlantic City, he regularly supplied her but would not see him. That during the next the summer of 1906, when the defendant was four years he went to Swarthmore many with money, and that she had a personal intimes and saw his children, but on no occa- come of between $50 and $75 a month, which sion was he able to, nor did he, see his wife. she was receiving. While she was in AtlanThat he had never had any conversation with tic City, he did not suspect that she had deher since she had left for Swarthmore. That serted him, but later he concluded that she his wife had never written to him or com- must have intended to desert him from the municated with him in any way whatsoever time she left to go to Atlantic City. At that since that time. That he has never had inter- time he was sending her $25 a week, and course with his wife after she left him in now sending her $32.50 a week for the supJune, 1906, and that he believed that she left port of the children. That his wife was livhim because of extreme jealousy. That he ing in Swarthmore "without his assent or knew of no other reason for her leaving him, consent.” and that in fact there was no ground for her Testimony was given by two colored servsuspicion and jealousy. That he had sup- ants of the petitioner, his stenographer, and plied money for the support and education of a plumber employed by him to do work at his children, but whether any of the money the Swarthmore house. One of the servants sent for the support and education of the chil- said that he heard Mrs. Jones say that she dren was used by the wife he did not know. would not live in Camden; that she was going That when he went to Swarthmore it was for to Swarthmore to live. The other, that whenthe purpose of talking with his wife and hav- ever the petitioner called at the Swarthmore ing her return to their home in Camden, house, the defendant would seem to know it where he had provided a home, or to provide and on several occasions told him, "Mr. Jones such other place as might be agreed upon be- is coming; I am going to Philadelphia"; and tween them. That his wife knew that he was that the defendant told him on two or three calling upon her children, and she must have occasions that she would never live in Camknown that he endeavored to see her a num. den again. The stenographer testified that ber of times, because he was at the house so Mrs. Jones wanted to move to Swarthmore on many times, but she at no time allowed him account of her daughter going to college, and to see her, nor did she offer to see him. That, that in the spring of 1906 the defendant was therefore, he was unable to talk with her or at the petitioner's office to talk about the purmake any provision in accordance with her chase of the Graham house. Mr. Jones told wish, if she had any to express. That he did her that he was perfectly willing to do anynot write to his wife, because he thought he thing that would add to her happiness and could make himself better understood by see- make her comfortable, but that she knew ing her personally. That they could have ar- he could not live in Swarthmore, and that ranged the matter between them and by con- the defendant said that that was the house versing with her he thought they could ar- she wanted, and that she intended gorange about her returning to Camden to live ing there, and that "her tone conveyed the with him, and, knowing the disposition of his idea that she was determined to go to Swarthwife, he thought that writing to her would be more to live, and it did not make any differfutile, when she constantly avoided seeing him ence whether he intended to go or not, or when he went to her house to see her and the whether he could go. She did not say those children. That as early as the spring of words, but that was her tone of voice." The 1905, the defendant had a conversation with plumber related that on one occasion when him, in which she wanted to move from Cam- the petitioner telephoned to his daughter, he den and go to Swarthmore to live, and that heard the defendant say to the daughter that he always protested, because his profession if her father came she would lock herself in required him to live in this state. That be- a room so that he could not see her, and that tween the time of this first conversation and at different times when he was working there, when he went to Colorado in the spring of he noticed that the defendant seemed to avoid 1906, he had two or three conversations on her husband. the subject. One was held in the office, and The corroborating testimony is fragmenthat she still persisted and urged that they tary and equivocal, and was evidently molded move to Swarthmore, and that he replied to give color to the petitioner's story. In the further discussion it need not be commented he moved to a room in his office building on upon, except as the history of the case ex- Market street. Before me, he insisted that plains the true meaning of the defendant's during that period he slept in the Seventh action and of what the witnesses said Mrs. street house. The defendant testified that Jones, from time to time, stated to them. when she came up from Atlantic City, in the

The evidence given by the petitioner before summer, she missed the certificate and telthe master was a bald perversion of the ephoned her husband about it, and that he truth, that his wife left him, moved to, and replied that he had taken it for safe-keeping was living at, Swarthmore without his assent He admits having such a conversation, and or consent,” and that he endeavored to se- I believe that he took it before the family cure her return to him, is absolute fabrica- moved to Swarthmore. For why should the tion. It will be observed that the petitioner defendant, if she had spurningly left it bealtogether suppressed the purport of the let- hind with a lot of rubbish, be so solicitous ter to his wife of January 22, 1906, in which about it as to telephone? he consented to her moving to Swarthmore,

But, aside from this, it is quite clear to me and the fact that he there bought and fur- that the petitioner's explanation of this metnished a house which he was maintaining for amorphosis of a temporary separation (if it his family-and the motive is obvious. The was that) to a permanent desertion is an abletter and the petitioner's operation in con- surd prevarication. Domestic discord of a resequence establish incontrovertibly that he pressed character prevailed for some time was anxious for and consented to a separa- before the separation. There were no violent tion. In fact, in his testimony at this hear-contentions or outbreaks of passion; on the ing, with these circumstances confronting contrary, the manner of the two towards each him, he confessed, as he was compelled to other was gentle

gentle and polite, but cool. that he consented to his wife's going to Some six months previous she had left his Swarthmore, but he endeavored to amelio- bed, because of an indignity, with which siturate the gravity of the situation in which ation he was apparently content. Had he he found himself-only to involve himself made the least advance, she doubtless would further—by the claim that the consent was to have rejoined him. He was generous in his a temporary residence, until the daughter money affairs and considerate of his wife's graduated, and that that was the understand comfort and welfare. She, on the other hand, ing he had had with his wife. This avoid was complacent and hopeful. Their demeanance is disingenuous. Why, if this were the or towards each other was an absolute conarrangement should he, as he testified before tradiction of their sentiments. It is the the master. immediately after he found his familiar story of the husband tiring of his wife had gone to Swarthmore, try to see her wife. She had lost her charms for him. Her to get her to come back to Camden? The personality and presence became intolerable. purchase of a high-priced house and large He was willing to provide, but not to embrace. outlays for improvements speak permanency. Whether he had found solace elsewhere is not The failure of the petitioner to seek a ter- clearly shown, but it does appear that later mination of the separation when his daughter he lived in Overbrook, Pa., much of his time, graduated, and the fact that in 1910 he in a family in which there was a daughter, bought two additional lots of land adjacent to whom he did not deny he paid attention. to his wife's home, for her use, add to his Before going West in June of 1906, he told confusion, and utterly rout his pretentions. his wife that he would never return to the

Although the defendant had gone to the Seventh street house. He virtually abandonhome her husband had provided for her, the ed her then. He had previously threatened petitioner, without relating this important to procure a divorce. To a letter which she fact to the master, averred, as he did at the wrote to him while he was desperately ill, present trial, that it was not until then that offering to nurse him, he made no reply. He he knew that she had deserted him. He pre- claims to have not received it, but I think he tends to have based this belief, principally, did. To his son, who had told him that the upon what he asserts to be the fact that defendant still loved him, he replied, with a his wife took with her everything, leaving laugh: "That's too bad; I am sorry. Of only rubbish and the marriage certificate course, you know it can't be helped now”– hạnging on the wall. A disdainful abandon- and that it was impossible for them to live ment of this token of their union might be together again because his wife was irresponsignificant, if there were not

were not other and sive and uneducated. To a message which controlling circumstances which were not the daughter carried to him, he made a simbrought to the master's attention. The wife ilar response. denies the charge, and I am inclined to disbe- That when the Swarthmore proposition lieve the petitioner as to the incident, and was first broached, the petitioner refused to for this reason: In his testimony before the go there with his family, and that he told master he said that when he returned from his wife, as he says, it would be impossible Denver on July 2d, to remain until August because of his profession, may be true, but 28th, he found his family had gone to Atlan- that he was willing, if not anxious, that tic City (he forgot to say that it was the an- they should go is also true. Vainly did he nual custom), and, having no place to sleep, try to explain away the significance of the

purchase and furnishing of the house. He stood by seeing his wife personally stretches protested vigorously and emphatically, he one's patience to the breaking point. says, but nevertheless bought, because his The enforced absence of seclusion of the wife, unknown to him, had entered into nego- defendant whenever her husband appeared tiations with the owner, who threatened suit, at the Swarthmore house accounts for the and that he completed the bargain to, avoid testimony of the plumber and the colored trouble, or as counsel argued, out of self-re- servant. If she ever stated that she would spect. How impossible of belief this is, never live in Camden again, as both colored when we consider that the petitioner admit- servants say she did, but which the defendted on the hearing that by the letter of Janu- ant denied, her declarations were perfectly ary 22d he intended that his wife should se- consistent with her apprehensions that her lect a house at Swarthmore for her home; husband was permanently estranged. that by her reply letter she informed him [2] Process was served upon the defendant that she had looked at the Graham house; while she was summering at Atlantic City. that she had spoken to him about purchasing The surprise and shock made her ill. The it, at his office in the presence of his stenog- next day the son went to see his father, and rapher; and that he bargained with Gra- informed him of his mother's condition. He ham and obtained it for $12,000, instead of returned with a message to his mother that $15,000.

he had seen his father; that he was sorry The petitioner's testimony before the mas- that the matter had upset her so, and that ter that he sought his wife with a view to a he had said she should not worry any more; reconciliation, and that she evaded his ef- that she could tear up the papers; and that forts, is even more reprehensible. Upon his she didn't have to go to Trenton. In the return from Denver, in July, 1906, he knew afternoon of the same day the petitioner that his family was on its annual summer met his daughter at the ladies' waitingroom outing. He neither called upon, nor com- of the Pennsylvania Station in Philadelphia. municated with, his wife, and his reason for She wrote to her mother from Evanston, Ill., this, as given to the master that he be- where she had gone on a trip, that she had lieved that she had gone away in one of her seen her father, and that he was very much fits of anger, and that it was best to leave worried at her condition, and that he had her alone, and that she would get over it told her to tell the defendant “she needn't and would return to her home all right in worry, that everything would be all right, the fall—in the light of the circumstances and that it wasn't necessary for her to go as they were developed at this hearing, was to Trenton.” As a result of these communimanufactured to suit the occasion.

After cations, the defendant, although she was adthe family moved to Swarthmore, he visited vised by her niece to consult counsel, refrainhis children there, only upon condition that ed from putting in a defense, because, as his wife should be out of the house. Later she says, she trusted Mr. Jones and believed on, he modified this, so that she might re- in him, and that thereafter she thought that main in the house, but must be invisible to the case had been dropped, and that she had him. When a visit was projected, he com

no information to the contrary until her municated by telephone, or otherwise, to his marriage anniversary on October 27, 1913, son or daughter, notifying them of his com- when the news was broken to her by her

niece. ing, with a strict injunction that the mother must be absent. This we have, not only from

The petitioner himself interpreted the the two children, but also from the family meaning of these messages as carrying an asphysician, who carried some of the messages but he denies the assertions of his son and

surance that the suit would be withdrawn, to the son and daughter. The defendant daughter that he initiated them. To his son, silently and uncomplainingly complied. She whom he admits asked him whether the dealways vanished. At the time of the com- fendant would have to go to Trenton, he said mencement exercises, when his daughter

he replied: graduated, in 1910, the petitioner sent word

"It isn't for me to say what she has to do. by this same physician that he would not Your mother has two courses open for her; attend if his wife intended going, and, being one is to secure counsel, file an answer and assured that she did not, he went. He was fight the case; and the other is to refuse to besides himself with rage when he saw her do anything, and, if she wishes, throw the pain the audience. Furthermore, in his testi- pers in the fire. It is immaterial to me what

. mony at this hearing, he asserted that he

And to his daughter, who was very much ceased to love his wife when he found she agitated, he claims to have said: had gone to Swarthmore. Is it likely that

“Don't you worry; you can't help this. he would thereafter seek her? He also ad- It is not your fault. You go on your trip and mitted that he never asked for her when he enjoy yourself.” called at the house, or ever wrote to her or The petitioner is supported in this statecommunicated with her by telephone (they ment by his stenographer as to what he had the facilities). His statement before claims to have said to his son. But her exthe master that he did not write because he quisite recollection of what occurred a year thought he could make himself better under and a half before, and which she described in the precise language used by her employer, This argument is incongruous. It necessarily impressed me at the trial that she had been assumes that the defendant should have encoached. I believe the two children. I am tirely disregarded her husband's promise to convinced that they told the truth. What withdraw the suit, or should have regarded possible motive could they have had to bear him as unworthy of belief, an assumption false information, which they must have real- which is entirely inadmissible and comes ized would deceive their mother and aid in with ill grace from the petitioner. the wrongful purpose of their father? Why The enrollment will be vacated and the deshould the daughter, when informed by her crees opened. On this hearing the main father that he had procured the decree nisi, cause was retried. Both parties presented all as she did, express astonishment and repeat of the evidence available on final hearing; to him his broken pledge? It may seem odd and, having reached the conclusion that the that the wife should have rested entirely up-defendant was not guilty of desertion, the on her husband's assurances, but she says petition of divorce will be dismissed, with that he always had been truthful to her; costs, unless the petitioner, on the settling of that she had confidence in him; that she the decree, shall represent that he has furtrusted him, and then still loved him; and ther testimony, to be offered on final hearing. that she thought he would not proceed with the suit and her manner on the witness

(83 N. J. Eq. 334) stand suggested that she was of a confiding,

PIERSON V. GARRISON et al. (No. 25.) pliable, and dependent nature. In her despair there still flickered hope of a renewed love. (Court of Errors and Appeals of New Jersey.

May 4, 1914.) I think she was fully warranted in relying upon his representation, and the weekly re- 1. FRAUDULENT CONVEYANCES ($ 104*)—SERV

ICES OF DEBTOR-GIFT TO WIFE. mittances, which he he thereafter regularly

A judgment creditor of a husband may not made, reassured her that he had abandoned compel him to work, or to charge for services the proceedings. He thereafter acted as he he renders to others, nor can the creditor comhad before, as the executor and trustee of plain if the debtor works for his wife without

pay, provided the business in which the debtor her mother's estate, until May of 1913, and is employed really belongs to the wife. was acting as her agent in the collection of

[Ed. Note.–For other cases, see Fraudulent rents and other moneys, even to the time of Conveyances, Cent. Dig. 88 337-344; Dec. Dig. this hearing. In November, after the petition 8 104.*] for divorce was filed, he procured from the 2. FRAUDULENT CONVEYANCES (8 104*)—JUDGdefendant (the children acted for her) a mort


Where money standing to the credit of a gage which she held on Camden property, for judgment debtor's wife in a bank deposit is in the purpose of foreclosing it. These were all fact his, he cannot make a gift of a portion acts which naturally gave her the impression thereof to her in order that she might pay for that he was not proceeding adversely, and prevent the husband's creditor from subjecting

real property taken in her own name, and thus that he had not abused her confidence. The the same to the payment of the judgment. defendant has not had her day in court. Of [Ed. Note. For other cases, see Fraudulent this she was deprived by the deceitful and Conveyances, Cent. Dig. 88 337-344; Dec. Dig.

$ 104.*] fraudulent machinations of the petitioner, From the foregoing review of the evidence,


DEPOSIT-OWNERSHIP OF FUNDS. it is manifest that the defendant has abun

Where a bank deposit was in the name of dantly shown merits, as well as surprise, and a judgment debtor's wife, the fact that he had that she is entitled to be protected by opening a power of attorney from her to draw checks the decree, in order to admit her defence. against the deposit and deposited to the ac

count funds received by him from a business Miller v. Rushforth, 4 N. J. Eq. (3 H. W. which he operated as her agent was insufficient Green) 174; Brinkerhoff v. Franklin, 21 N. to establish that the money deposited in the acJ. Eq. (6 C. E. Green) 334; Day v. Allaire, count belonged to him, so as to entitle his cred31 N. J. Eq. (4 Stewart) 303; Richardson v. purchased by her from funds drawn from the

itors to subject to their claims real property Richardson, 67 N. J. Eq. (1 Robbins) 437, 58 account. Atl. 820; White v. Smith, 72 N. J. Eq. (2 (Ed. Note. For other cases, see Fraudulent Buchanan) 697, 65 Atl. 1017.

Conveyances, Cent. Dig. $$ 337-344; Dec. Dig. [3] There is another consideration which

§ 104.*] requires that this decree be vacated. The Appeal from Court of Chancery. state is an interested party to the suit. Its Suit by Alfred M. Pierson as administrainterests have been imposed upon by the tor, etc., against Emma F. Garrison and malevolent conduct of the petitioner, and others. From a decree in favor of defendpublic policy demands that its rights be vin- ants, complainant appeals. Affirmed on the dicated.

opinion of Vice Chancellor Leaming, which It is urged that the defendant is in laches, was as follows: because as it is argued she was careless in re- I do not believe I will ever be more nearly lying upon her husband's promise, and that able to correctly dispose of the facts here in

volved than I am now. slight investigation would have put her in ence between my present ability to solve the

If there is any differposition to have timely defended herself. I issue and that which would exist at some future *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes time, should I take the case under advisement, | He has undertaken to get order out of chaos in it is that I know more about the case now than the partnership affairs, and seems to have sucI ever will again. If there is any just criticism ceeded fairly well. He inaugurated a series of that can be extended to my effort to determine hearings, in which he had brought before him the exact truth touching this partnership, wheth- as receiver all parties in interest, except the er that effort is made now or at some future judgment creditor with whom he was not contime, it is that the ascertainment of the exact cerned, and had the claim of Mr. Nichols and truth is probably impossible, so that whatever the claims of the representative and widow of course I take will in all probability not be over the deceased partner presented, and appears to satisfactory to myself and less satisfactory to have done everything in his power to ascertain counsel.

the real situation and to have that situation My own view of the situation is that the reduced to writing and to figures. human intellect, limited as it is in its capacity, It is impossible for me to reach the conis really unable to fully penetrate into such clusion, and I think no one assumes to sugmatters as we have presented here to-day with gest, that what the receiver has done has not that degree of accuracy and certainty that car- been done to the best of his ability and with ries with it entire and abiding confidence. That absolute integrity on his part. He clearly had may not be true of all intellects, but it is un- no interest in the matter other than to ascerdoubtedly true of mine. There are circumstanc- tain the truth, and the very laborious investies in this case that necessarily cause one to gation which he instituted and the tedious and hesitate and wonder whether certain inferences troublesome hearings which he had were manishould not be drawn or treated as facts, or festly with a view to ascertain the truth as whether the contrary is the truth, and I doubt nearly, as it could be ascertained, without any whether any judicial investigation could be interest to conserve for himself one way or the made in this case that would serve as a basis other. for what one may call a confident, positive, ex- As receiver he was representative of one act, and certain determination of the facts be party as much as he was of another. The priyond possibility of error.

mary difficulty before him was to ascertain There are two separate and independent as the exact condition of the accounts between pects of the case that are to be determined to the partners. That difficulty was a troubleday, and each is essentially independent of the someone, for the accounts involved not only other. The first aspect is that which relates to the transactions of the partners while both the status of the two partners. The other as- were alive, but the transactions of the survivpect is that which relates to the claim of the ing partner after the death of Mr. Garrison, complainant, who is a judgment creditor of Mr. and no adequate records existed. He seems Garrison, and seeks to impress the lien of the to have had no great difficulty in arriving at judgment upon certain real estate which stands the situation as it existed at the time of the in the name of the widow of Mr. Garrison, he death of Mr. Garrison, although, as stated in being admittedly one of the partners.

his report, it was done by a system of approxThis partnership appears to have been formed imation, but with what he thinks to have been in entirely good faith between Mr. Garrison and reasonable accuracy. Then taking up the acMr. Nichols, and I shall assume what counsel counts of Mr. Nichols as surviving partner the on both sides have assumed that there is no evidence discloses that he allowed all claims evidence that justifies the conclusion that Mr. presented by Mr. Nichols; this was done beGarrison was not acting in that partnership in cause he was not able to disprove them. Item his own behalf rather than as an agent of his by item was gone over and considered and diswife, for whom he had been acting in many cussed and allowed and, as I recall it now, other matters; so it will be assumed, at the none were rejected. If they were, they were outset, that Mr. Garrison and Mr. Nichols were rejected after mature consideration and by Mr. partners, each representing his individual self. Nichol's acquiescence. In making up the charg

After the death of Mr. Garrison, Mr. Nichols es against Mr. Nichols much the same course assumed the burden and the right, which the was pursued, that is, every item with which law gave him, of closing out the partnership he was charged was considered and discussed business as surviving partner. In doing that with Mr. Nichols and, as he states, finally ache essayed to go beyond the field of his privi- ceded to by Mr. Nichols. The methods which lege as surviving partner in closing out the he adopted to ascertain what adjustment should partnership business, and attempted to carry on be made by reason of the fact that Mr. Nichthe business for the benefit of himself and the ols conducted two businesses, one for the surwidow of his deceased partner, and also to car-viving partnership and one for himself, with ry on a like independent business of his own the same teams and paraphernalia, seem to at the same time, and there the trouble began. have been reasonable, so far as I can discern, A bill was filed by complainant herein as a cred- and on the whole I am satisfied that at the itor of Mr. Garrison, the deceased partner, time the final solution was reached it was bethrough which bill complainant sought to relieved by everybody in interest that a just and strain the conduct of this business by Mr. Nich- accurate solution had been arrived at, or that ols, and also sought to impress the lien of the as just and accurate a solution had been arjudgment, as I have already stated, upon cer- rived at as could be. tain real estate standing in the name of the de- The settlement included, however, some claim ceased partner's widow. Accordingly, when a made by the widow. Those claims are the hearing was had on an order to show cause, subject of a considerable testimony and the subMr. J. Spicer Leaming was appointed a receiv- ject of a great deal of uncertainty in my own er to supersede Mr. Nichols, as the surviving mind. Mrs. Garrison's claim of $500 indebtedpartạer, in closing out the partnership busi- ness due from the partnership to her, which ness. The showing made at that time was such was, as she claims, secured to her by the recthat it was manifest that it would have been ord' title of a tract of woodland and two lots improper to have permitted the surviving part- at Cape May courthouse being taken in her ner to have continued in the exercise of his name, is one claim that I should find great difrights as surviving partner.

ficulty in disposing of under the evidence which Mr. Leaming has filed a partial account and is now before me, if nothing had transpired beexceptions have been filed to portions of his fore the receiver; but it does appear that at report, and those exceptions ought to be dis- that time, with Mr. Nichols, the surviving posed of at this time so that we can have at partner present, that matter was taken up least that much of the situation made a final and considered fully and solved, and the soluity.

tion was consented to by Mr. Nichols as being Mr. Leaming as receiver has manifestly done correct, and a stipulation was then prepared a large amount of difficult and intricate work. I and signed, in which Mr. Nichols joined, stat

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