(108 A.) ders of the railroad company who had made Ridgewood, was invited in the morning upon a contract with the defendant by which the her return to her home at East Orange to latter supplied the necessary labor. He occupy a seat with defendant and others, in worked under the immediate orders of the defendant's automobile, which was driven captain and engineer. The question is wheth- by her son, a competent licensed driver. On er this evidence conclusively shows that the Great Notch or Valley Road, the car the captain submitted himself to the con- skidded and ran into a telegraph pole, severetrol of another person (the railroad company) ly injuring plaintiff, to recover for which inthan his proper master (the defendant), and juries she brought this suit, and obtained either expressly or impliedly consented to a verdict for $7,000, damages, which is beaccept the railroad company as his master. fore us upon this rule, upon the ground of We think, to say the least, that a jury might the absence of any proven negligence on the properly infer that the captain had not part of plaintiff, and the excessiveness of the consented. The law cannot be better stated damages. than in D., L. & W. R. R. v. Hardy, 59 N. J. Law, 35, 34 Atl. 986, approved by this court in 59 N. J. Law, 562, 39 Atl. 637. In a very similar case recently decided, we have held that the evidence conclusively showed that the servant had not consented to the change of master. Drago v. Central R. Co., 106 Atl. 803. The only errors complained of are the refusal to nonsuit and the refusal to direct a verdict for the defendant. As we think the evidence justified the submission of the case to the jury, the judgment is affirmed, with costs. (94 N. J. Law, 66) MACKENZIE v. OAKLEY. (Supreme Court of New Jersey. Jan. 19, 1920.) 1. NEGLIGENCE 2-AUTOMOBILE OWNER'S GUEST INVITEE ENTITLED TO CARE. A guest who is invited to occupy seat in a motorcar is an invitee to whom the owner owes duty of care. 2. NEGLIGENCE 136(12) AUTOMOBILE OWNER'S NEGLIGENCE AS TO GUEST QUESTION FOR JURY. Where automobile in which plaintiff was a guest skidded on a highway which defendant owner claimed was made slick because of a sudden shower, the question whether the defendant's explanation was sufficient under the doc trine of res ipsa loquitur was one for the jury. Action by Marie C. Mackenzie against Jeannette M. Oakley, in which there was a verdict for plaintiff. On rule to show cause. Rule discharged in event plaintiff consent to reduction of the verdict, otherwise made absolute. Argued June Term, 1919, before the CHIEF JUSTICE and MINTURN and BLACK, JJ. Abner Kalisch, of Newark, for plaintiff. McDermott & Enright, of Jersey City, for defendant. MINTURN, J. The plaintiff, who was a guest overnight at defendant's home at The skidding of the machine was apparently due to the fact that a shower of rain had come up unexpectedly, which made the road slippery and dangerous, while the automobile was proceeding over a high-crowned road, at a speed not to exceed from 18 to 30 miles per hour, accordingly as one may view the credibility of the witnesses. [1] The legal status thus created was that of an invitee, to whom the duty of due care was owing. Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478. [2] In this respect the case was properly submitted to the jury as one of fact. The situation presented is within the rule applicable to an accident, which suddenly and for no apparent cause happens, and yet from the very fact of its occurrence an abnormal situation is presented which bespeaks negligence in operation, under the rule of res ipsa loquitur, which calls upon the defendant for an explanation to exculpate herself from the legal inference or presumption of negligence arising therefrom. Cases of that general character in which this principle of liability was applied in this Court and in the Court of Errors and Appeals are presented by Sheridan v. Foley, 58 N. J. Law, 230, 33 Atl. 484, Higgins v. GoerkeKrich Co., 91 N. J. Law, 464, 103 Atl. 37, and the cases therein referred to. The situation thus presented evolved an issue of fact for the jury as to whether the defendant's explanation was sufficiently exculpatory. The jury having found for the plaintiff, the legal inference results that the explanation offered was not sufficient, and verdict upon the principle of legal liability we are not therefore inclined to disturb the verdict upon the principle of legal liability upon which it was submitted. We are of the opinion however, upon a re view of the testimony, that the verdict is excessive, and that it should be reduced to $3,500. Should the plaintiff accede to this reduction, the rule before us will be discharged. In the event of her declination, the rule will be made absolute upon the question of damages only, and a venire de novo may issue, limited to that inquiry. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (91 N. J. Eq. 17) DAVIS v. GREEN. (No. 44/531.) live in that way." No child was born of the unlawful marriage. The foregoing facts were specifically found (Court of Chancery of New Jersey. Oct. 6, by the learned master, but a decree for pe 1919.) titioner was by him denied because of the 1. ACTION 4-RULE DENYING RELIEF TO awarded to one who comes into court with equitable maxim that relief should not be PARTIES IN PARI DELICTO IS SUBORDINATE TO PUBLIC POLICY. The general rule that where the parties are in pari delicto no affirmative relief of any kind will be given to one as against the other is always regarded by courts of equity as without controlling force in all cases in which public policy is considered as advanced by allowing either party to sue for relief against the transaction. 2. MARRIAGE 59-PETITIONER FOR ANNULMENT OF MARRIAGE BECAUSE HAVING A FORMER HUSBAND LIVING NOT DENIED RELIEF BECAUSE IN PARI DELICTO. Petitioner, seeking a decree annulling her marriage to defendant because at the time of such marriage she was the lawful wife of another man, who was then living, which fact, and that their marriage was consequently void, was known to her and to defendant, would not be denied relief as being in pari delicto, as, though the marriage was void without any decree, the decree sought would merely operate to establish for all time the status of the parties, and would be granted in view of public policy, as in its absence the remarriage of petitioner after the death of her present husband or the remarriage of defendant might otherwise put in doubt the validity of lawful marriages and the legitimacy of lawful children. Petition by Sadie R. Davis against Howard Green for a decree annulling petitioner's marriage to defendant. Case heard on exceptions to master's report denying relief, and decree advised in accordance with the prayer of the petition. Petitioner seeks a decree annulling her marriage to defendant on the ground that at the time of her marriage to defendant she was the lawful wife of another man. No defense has been made. The testimony taken before the special master fully established the fact of petitioner's ceremonial marriage to defendant, and also the fact of her prior lawful marriage to another, and that her lawful husband was still alive at the time of her marriage to defendant, and also at the time of the hearing, and that he had not been divorced from petitioner. It was further established that at the time of the marriage of petitioner and defendant both parties well knew that petitioner was the lawful wife of another person, and that their marriage was, in consequence, void; that petitioner and defendant cohabited for about one year, during all of which time petitioner knew that her conduct was criminal; that at the end of that time she left defendant because she "felt that it wasn't right to unclean hands. Exceptions have been filed in behalf of petitioner upon the ground that the facts established by the evidence entitled petitioner to a decree. D. T. Stackhouse, of Camden, for petitioner. LEAMING, V. C. (after stating the facts as above). as above). In Rooney v. Rooney, 54 N. J. Eq. 231, 34 Atl. 682, the learned vice chancellor denied a decree of annulment of a void marriage because of the established equitable maxim that relief would not be granted to a suitor who should come into a court of equity with unclean hands. In that case the husband, who sought the decree of annulment, had fraudulently concealed from his innocent victim the fact that he had a lawful wife; other circumstances of that case also appealed with extraordinary force to the enforcement of the equitable maxim to the enforcement of the equitable maxim there made the basis of the decree. The present case differs from the Rooney Case by the circumstance that neither party was guilty of fraudulent concealment from the other, since both parties to the unlawful marriage knew that the wife, petitioner herein, had a husband who was alive at the time, and both parties knew that their marriage was unlawful by reason of that fact; they were in pari delicto. Our Divorce Act (2 Comp. St. 1910, p. 2021) provides: "Decrees of nullity of marriage may be rendered in all cases when-1. Either of the parties has another wife or husband living at the time of a second or other marriage." Assuming, as I do, that the Court of Chancery of this state in the exercise of its statutory jurisdiction in cases of nullity and divorce should give due recognition and force to the established principles which are applied in ordinary suits in equity, I am yet unable to conclude that the petitioner herein should be denied a decree. [1, 2] The equitable maxim that he who comes into equity must come with clean hands is subject to well-defined limitations. While the general rule is that where the parties are in pari delicto no affirmative relief of any kind will be given to one against the other, that rule has always been regarded by courts of equity as without controlling force in all cases in which public policy is considered as advanced by allowing either party to sue for relief against the transac (108 A.) tion. 2 Pom. Eq. Jur. § 941. That vital [ that the real character of these domestic con-. public interests are involved in a case of nections should be ascertained and known." this nature is obvious. The marriage here These cited cases were all suits for deunder consideration is absolutely void without the aid of any judicial decree to that ef-which the statute declared operative to rencrees declaring marriages void for causes fect; the decree here sought is merely op der marriages null and void ab initio, such erative to establish for all time the status of as precontract and the like. the parties, whereas, without such decree But in cases where the marriages were voidable only, the same courts appear to have discerned no such public interests, and to have been accordingly free to deny relief to the wrongdoer, since the status of the parties in such circumstances, in the absence of a decree, was regarded as already fixed by their marriage. Thus in Norton v. Seaton, 3 Phill. Rep. 147, the libelant sought a decree of annulment of his marriage because of his own impotency, such marriages being deemed voidable only. The court found as a fact that at the time of his marriage he knew he was impotent. In the reported opinion it is recognized that the public has an interest that the real status of the parties should be ascertained and declared where the marriage is absolutely void under the marriage act, but the view is adopted that no such public interest exists in cases of marriages voidable only; relief was accordingly denied to libelant because of his own wrongdoing. lapse of time will render it more difficult, if not impossible, for their status to be ascertained by reason of the loss of evidence. It is in that office of the decree that vital public interests arise, since the remarriage of petitioner after the decease of her present husband or the remarriage of defendant may, in the absence of a decree at this time, expose to doubt the validity of lawful marriages and the legitimacy of lawful children. In Freda v. Bergman, 77 N. J. Eq. 46, 76 Atl. 460, Vice Chancellor Stevenson points out with clearness and force the paramount interests of the public which are involved in a case of this nature. Those public interests appeal to me as of such impelling force that the equitable maxim relied upon by the learned master must be deemed inapplicable in the situation here presented. See Szlauzis v. Szlauzis, 255 Ill. 314, 99 N. E. 640, L. R. A. 1916C, 741, Ann. Cas. 1913D, 454. In the English ecclesiastical courts, in suits for decrees of nullity of marriages which the statute declared absolutely void, it appears to have been uniformly recognized that the efficacy and importance of a judicial declaration of nullity was "to prevent the consequences which might in future take place from death of witnesses, or other occurrences rendering proofs difficult or uncertain" (Shelford on Marriage and Divorce, *p. 565, title, Nullity), and an examination of the reported cases will disclose that the fundamental reason for awarding decrees of 1. WILLS 822 GENERAL LEGACIES A I am constrained to advise a decree in ac cordance with the prayer of the petition. SHANNON v. RYAN et al. (91 N. J. Eq. 46) (No. 44/761.) (Court of Chancery of New Jersey. Oct. 4, 1919.) CHARGE ON RESIDUARY PROPERTY. nullity in those courts at the instance of either party was the protection of those public In the absence of anything to the contrary, interests, and not because of any inability or the mere giving of general legacies, and the hesitancy on the part of those courts to rec- passing of real and personal property in a reognize and apply the equitable maxim al-siduary clause, makes the legacies a charge on such property. ready referred to in all appropriate cases. Thus in Watts v. Watts, Phillimore's Rep. 43, the court says: "It is a duty this court owes to the public to declare the situation of the parties." In Roy v. Sherwood, 1 Curtie's Rep. 193, 226, 227, it is said: "Either party may bring suit to have his marriage declared null and void. It is on the ground that it is material for their own sakes, and that of the public, that their status should be known." In Pertreis v. Toudear, 1 Hagg. Cons. Rep. 136, 138, it is said: "It may be necessary, for the convenience and happiness of families, and the public likewise, 2. WILLS 487(2)-EXTRINSIC FACTS CONSIDERED IN DETERMINING WHETHER LEGACIES ARE CHARGED ON RESIDUE. To determine whether general legacies are chargeable on real property included in the residuary clause of testatrix's will, the point being debatable, the chancery court must sense up the will in its entirety, and give effect to testatrix's intention, with the aid of extrinsic evidence as to the condition of the estate and the objects of her bounty. 3. WILLS 822 GENERAL LEGACIES HELD CHARGEABLE ON RESIDUARY REALTY. In view of testatrix's entire will, general legacies to her nephew and executor and others held chargeable on realty mentioned in the residuary clause, despite the provision that, should the personal estate be insufficient to pay pe For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes WHO DREW WILL INADMISSIBLE. In suit to determine whether general legacies are chargeable on real property included in residuary clause of will, letter of scrivener who drew the will, offered to have same force as if he had been called and testified, held inadmissible on the ground that evidence of what testatrix told him to do and what he omitted to tell her was inadmissible. to sell either all or so much of my land at Spuyten Duyvil, in the state of New York, as may be necessary, in such manner as in his judgment is deemed best, to produce funds to supply the deficiency." New Jersey, this clause would weaken the If the Spuyten Duyvil property was in view that the property in the residuary clause was charged. The Spuyten Duyvil property is not devised; it passes by the residuary clause, subject to the whole or part of it being taken and used for the payment of the legacies. Counsel for the general legatees, however, say that, under the decisions of the Court of Appeals of the state of New York (which, by stipulation, the parties agree may be considered without formal proof), the rule of construction is different from ours; that there the rule is that the mere giving of general legacies, followed by a residuary clause passing real and personal property, in David F. Edwards and Theodore Rurode. the absence of a contrary intention, is not sufficient to charge the residue with the payboth of Jersey City, for complainant. ment of legacies (Brill v. Wright, 112 N. Y. Edwards & Smith, of Jersey City, for de 129, 19 N. E. 628, 8 Am. St. Rep. 717, and fendant Ryan. Bill between Joseph G. Shannon, executor of the will of Ellen J. B. Shea, deceased, and John Ryan and others, to determine whether legacies are chargeable on the land. Decree advised, charging general legacies in a paragraph on the property mentioned in the residuary clause. the later case of Carley v. Harper, 219 N. Y. Treacy & Milton, of Jersey City, for gen- 295, 114 N. E. 351); and, as there is a preeral legatees. GRIFFIN, V. C. In this case, were it not for the Thirteenth paragraph of the will, the legacies would be clearly charged on the land. Corwine v. Corwine, 24 N. J. Eq. 579; Johnson v. Poulson, 32 N. J. Eq. 390. [1] In Johnson v. Poulson, supra, after stating that the personal property is the primary fund for the payment of legacies, Judge Dodd says: "The real estate is not charged with the payment of legacies unless the testator intended it should be, and that intention must be either expressly declared or fairly and satisfactorily inferred from the language and dispositions of the will. This rule was held, in Corwine V. Corwine, to be met and its requirements satisfied by giving to the word 'residue' its natural and proper force and effect. It signifies what is left of a number or a quantity after something has been abstracted. *** The rule itself, being a judicial interpretation of words used with reference to the other conditions of the will, is subservient, as rules of construction in all cases are, to the cardinal and predominant one which seeks the purpose of the testator from all parts and provisions of the instrument considered together." It is therefore apparent from this ruling, in the absence of anything to the contrary, that the mere giving of general legacies and then passing real and personal property in a residuary clause makes the legacies a charge. The thirteenth paragraph of the will is as follows: "Thirteenth. Should my personal estate be insufficient to enable the foregoing pecuniary legacies to be paid, then I direct my executor sumption that the testatrix knew the law, it will be presumed that the will was drawn in compliance therewith (Walker v. Walker, 283 Ill. 11, 118 N. E. 1014); and therefore, in order that the Spuyten Duyvil property might be placed on a parity with the residue in New Jersey, she also designated this residuary property for sale to pay the legacies. There is some force in this argument. It is a circumstance tending to disclose her motive. The case, however, may be decided without determining this question. The residuary legatees, however, citing Johnson v. Poulson, supra, contend that, under the doctrine "expressio unius est exclusio alterius," a mere direction to resort to the Spuyten Duyvil property to pay the deficiency, without further expression in the event of the proceeds of the Spuyten Duyvil property being insufficient, is a circumstance unfavorable to the charge, and must, under such circumstances, operate as an expression of her intent that the remaining deficiency should not be paid out of the residue, but the legacies should abate ratably. [2] In this situation of affairs the court must sense up the will in its entirety, and give effect to the intention of the testatrix, with the aid of extrinsic evidence as to the condition of the estate and the objects of her bounty. [3] It is quite plain that the testatrix intended that the legacies in the twelfth paragraph should be paid. After giving a number of specific legacies and a devise of the house and lot where she resided, in the twelfth paragraph she gave legacies aggre (108 A.) The question, therefore, presents itself, Did the testatrix mean that this residue, consisting of real estate alone, should, in all events, pass to the residuary legatees? She knew what this real estate consisted of; and I am rather inclined to the view that, if she meant in any event to give the same to these three legatees, she would have done so by specific devises, and then have put in a general residuary clause; and, when it is considered that she made large provision for Joseph and his family, and the same for Roberta, daughter of John, it would seem that she did not intend that their legacies should be cut down to enable Joseph and John to take in the residuary clause at the expense of such general legacies. gating $48,000. To Joseph G. Shannon, who the value of this property was, even for the is her nephew and executor, she gave specific use for which it was adapted and was likely legacies; to the son of Joseph she gave her to be taken. father's gold watch, and to the wife of Joseph she also gave specific legacies; and she devised her residence to her cousin Mary F. Ryan. By this twelfth paragraph, in which passes all of the general legacies, she gives to Joseph $5,000; she gives for the education of Joseph's son, $5,000; she gives to the Sisters of Charity of St. Elizabeth, where she was educated, $10,000 to found two scholarships, one of which was to be known, as the "Rita Scholarship," as she puts it, "in loving memory of my daughter, Rita Bosdevez Burke"; she also gives to Roberta Shannon, a daughter of John Hall Shannon (one of her residuary legatees) $5,000; and to her faithful servant, Margaret McAneny, she gives $2,500. She also gives $1,000 to erect two chapels in memory of her parents, and $1,000 for the perpetual care of the family cemetery plot. Another feature to be considered is, Did she intend that her will as to the Rita Scholarship in memory of her daughter, the Apparently her nearest kin were related as memorial chapels for her parents, and the nephews and cousins. Thus it appears that, in this paragraph twelve she was bountiful to Joseph Shannon, one residuary devisee and legatee, and his family; and John Hall Shannon, while receiving nothing, his daughter was given $5,000; and the last residuary legatee, her nephew Robert Shannon, is nowhere mentioned in the will, excepting in the residuary clause. The will was drawn on November 11, 1916, and testatrix died November 28th of the same year, without any change happening in her estate between the two dates. Her personal estate was inventoried at $30,827.37; the debts amounted to $1,000, leaving a net personal estate of approximately $29,827.37. The Spuyten Duyvil property was sold for about $3,500. The value of the New Jersey real estate, excluding that specifically devised, is approximately $14,750, leaving the total value of real and personal property, excluding the specific devises and bequests, about $48,000. The legacies amount to $48,000. It must be assumed that the testatrix knew what property she was possessed of at the time she made her will, and would hardly give legacies amounting to $48,000 with but $30,000 of personalty and the Spuyten Duyvil property, of the value of $3,500 to pay the same, with knowledge that she had some debts, and that there would be the expense of settling up her estate. But it is argued that she conceived the Spuyten Duyvil property to be of great value. The property did have a speculative value, and she had endeavored to sell it. It consisted of land under water, unattached to the upland; and it is conceivable that, if taken for the purpose testified to, it might bring sufficient to make up the deficiency of personalty. But there is no evidence as to what care of the family plot should fail for the benefit of the residuary legatees? The whole spirit and tenor of this will, prior to the thirteenth clause, seem to indicate clearly that the testatrix gave to every one whom she regarded as an object of her bounty, and for every purpose that she desired to have fulfilled. The specific bequests are 10 in number. The general legacies number 25. They run to relatives of the blood, a servant, and other persons strangers to the blood, and for various purposes. It seems almost inconceivable that, in this wide distribution of her bounty, she should not mention her nephews John and Robert personally, and yet intended that they should take in the residuary clause to the detriment of the general legatees. The whole will itself breathes an intimation that she intended that these legacies should be paid in full, even to the extent of taking the whole residue for the purpose. Carter v. Gray, 58 N. J. Eq. 411, 43 Atl. 711. There is another feature of the will which tends to negative the inference arising from the thirteenth paragraph, and leads strongly in the direction that she meant to have these legacies paid out of the residue, if necessary: By the first clause of her will she directs her executor to pay all her just debts and funeral expenses, and then proceeds: "I authorize and empower my said executor to sell any and all of my real estate, save my home in Jersey City on Fleet street where I reside, which is hereinafter disposed of, at public or private sale, and upon such terms as, in his judgment, may be advisable." This power of sale, according to the tenor of the will, could only apply to the residue, and this residue consisted of the Spuyten Duyvil property (or the balance of the proceeds of the sale thereof after paying the leg |