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and that as to these matters defendant had | Currier v. Robinson's Est., 61 Vt. 196, 18 Atl. directed piaintiff not to proceed until the 147; Gove v. Downer, 59 Vt. 139, 7 Atl. stones were completed in all other respects 463; Wason v. Rowe, 16 Vt. 525; Mixer v. ready for inspection; that, when the stones Williams, 17 Vt. 457. These two letters exwere completed except in these particulars, pressly state that the defendant will positiveplaintiff notified defendant, whereupon de ly not accept the "base"; hence in that re. fendant's managers inspected the stones; gard they were properly construed by the that defendant refused to accept the stones, court. If the stock was such as the plaintiff claiming certain defects, which the plaintiff's was required to furnish, and the work to be evidence tended to show did not exist; that done upon it by him was completed according by reason of this refusal plaintiff suspended to contract, except the cutting of the three work on the stones; that the stones still re links and the lettering, when he received main in plaintiff's yard; and that plaintiff these letters, the plaintiff was justified in has always stood and still stands ready to stopping work. The contract set forth in the complete the work, and would have done so conditions of the mortgage was an entire conat that time but for the defendant's refusal | tract, and incapable of severance. When to accept. Letters written by the parties, the plaintiff received notice from the defendwhich had a bearing upon the question ant that it would not accept the base to the whether the plaintiff had satisfied the con monument, a part of the entire contract, it dition of the mortgage by performing his was, in effect, a notice that the defendant contract, were introduced in evidence. Of would not accept the stones specified in the the letters so introduced there were two from conditions of the mortgage according to conthe defendant to the plaintiff-one dated July | tract. This shows that the noncompletion of 10, 1894, and the other July 14, 1894. The the contract was not the fault of the plaincourt charged the jury in part that the con tiff, and that he was disposed and able to tract imposed in the condition of the mort complete it had not the act of the defend.' gage was the entire contract, and the plain ant prevented. In that part of the charge tiff could not satisfy the condition of the excepted to there was no error, for such mortgage without fully completing the con fault by the defendant should be removed tract, unless he was excused from the full before he can charge the plaintiff with a completion by some act of the defendant; failure to perform. Cort v. The Ambergate, but, if the stock furnished by the plaintiff etc., Ry. Co., 17 Q. B. 127; Raynay v. Alex. was in accordance with the contract, and if ander, Yelverton, 76. the work to be done upon it was completed It is urged, however, that it was the plainin accordance with the contract, except the tiff's duty to have fulfilled the contract by cutting of the three links and the lettering, completing the job and tendering it to the the positive declaration of the defendant in defendant. But, if the defendant refused to its letters of July 10tb and July 14th, above accept the stones according to the contract, referred to, that it would not accept the the law did not require of the plaintiff the "base," would excuse the plaintiff from fur useless ceremony of thus making a tender. ther cutting and lettering the stone; so his Hard v. Brown, 18 Vt. 87; Cobb v. Hall, 33 failure to do this would not justify the fore Vt. 233. closure of the mortgage, nor prevent the The defendant requested the court to plaintiff's recovering in this suit. To this charge that the burden of proof was upon the portion of the charge the defendant except- plaintiff to show that the work was completed, claiming that, as there was nothing am ed according to the terms of the contract. biguous about the letters, it was for the jury, This request was not complied with, but inand not for the court, to say whether the stead thereof the court charged that the plaintiff was warranted from those letters burden of proof was upon the defendant to in neglecting to complete the job; that, as show there was a breach of the conditions there was nothing ambiguous about them, it of the mortgage. An exception was taken to was a question of fact for the jury, and not the neglect to charge as requested and to the one of law for the court, and that, inasmuch charge as given in this beball. To make out as it was an entire contract, the plaintiff his case the plaintiff need show no more than. must have completed it; that the evidence that the defendant committed the act which, was conflicting, but it tended to show that in the absence of excuse or justification, conthe defendant only told the plaintiff that, stituted in law a tort to him. If facts existed if he proceeded, he must proceed at his own which would justify the defendant in his act, risk. The fact that these letters contained even though they would show that he had no ambiguity did not make them for the jury committed no tort, such facts would constito construe. It is a general rule that the tute an affirmative defense, and the burden interpretation or construction of written in was upon the defendant to allege and prove struments drawn in language so plain as not them. Hence in the refusal thus to charge to require the aid of extrinsic evidence is a and in the charge as given there was no error. question for the court, and to submit such a Bosworth V. Bancroft, 74 Vt 451, 52 Atl. question to the jury is error. 1 Thomp. on 1050. Trials, § 1065. See, also, Smith Woolen Ma. No other exceptions being relied on in chine Co. v. Holden, 73 Vt. 396, 51 Atl. 2; the defendant's brief, judgment is affirmed.

(65 N. J. E. 384)

MULLANEY V. MULLANEY et al. (Court of Errors and Appeals of New Jersey.

March 11, 1903.) ADMINISTRATION-WIFE'S RIGHT TO APPOINT

MENT-MARRIAGE-RELEASE OF INTERESTFRAUD IN PROCUREMENT-ORPHANS' COURT - ADMINISTRATION – RES JUDICATA - EVI. DENCE-SUFFICIENCY.

1. Evidence on an issue of marriage held to show that the parties were actually married, and lived together as husband and wife, though no marriage ceremony was performed.

2. The orphans' court has no jurisdiction to determine whether a wife's release of her interest in her husband's estate was obtained by fraud, and its decision is not res judicata.

3. In a proceeding by a wife for appointment as her husband's administratrix, under a statute providing that administration shall be committed to the widow or next of kin, the issue whether her release of her interest in the estate was procured by fraud is only incidentally cognizable, and the decision thereon is therefore not res judicata.

4. Evidence in a suit by a widow to set aside, as procured by fraud, her release of all interest in her husband's estate, examined, and held to sustain complainant's contention, and to show that the person perpetrating the fraud, though previously her agent, was at the time acting for heirs adversely interested.

Appeal from Court of Chancery.

Suit by Pauline E. Mullaney against George W. Mullaney and others. Decree for complainant, and defendants appeal. Af. firmed.

The following is the opinion of the court below (Stevens, V. C.):

“This is a suit to set aside a release given by the complainant, who claims to be the widow of Michael Mullaney, to defendants, who are his next of kin and heirs at law. That the case may be understood, it will be necessary to state the situation as it was prior to the giving of the release: Michael Mullaney died intestate at Bayonne December 2, 1899. He left personal property estimated at $7,297.29, and real estate estimated at $6,400. At the time of his death, Mrs. Mullaney was not living with him. She says that on July 4, 1862, it was agreed, in the city of New York, that they should become man and wife. There was no marriage ceremony, but the undisputed fact is that after that time they lived together for about twenty years, and most of the time in Bayonne. Then she left him, as she alleges, because of his cruel treatment, and she went to Newark, where she has since resided. For nearly twenty years she has been supporting herself at domestic service, or by working out by the day. When Michael died she applied for letters of administration. This was resisted by Michael's next of kin on the ground that she was not in fact his widow. The case was heard by the Hudson county orphans' court. A large number of witnesses were sworn on both sides. On February 2, 1900, the last witnesses were called, and the case summed up. The court reserved its decision. Three days thereafter the release in controversy was procured. On February 9tb

application was made to the orphans' court to open the case, in order that the release might be put in, for the purpose of showing that Mrs. Mullaney had no further interest in the estate, and that consequently she was not a proper person to administer. The paper did not, in terms, contain any waiver of her right to do so. It only released her right, title, and interest in and to the estate, real and personal, of her late husband. The application was resisted, but the court granted it, and then counsel for the widow asked to be permitted to show that the release was obtained by fraud. The court granted the request, and thereupon evidence was given on both sides on this new issue. The decision, as appears by the judge's opinion, but not by the order or decree, was that there was no fraud, and that, this being so, it was unnecessary to decide any ouer question. The order was that the prayer of the petitioner, asking for administration, be denied. Then Mrs. Nullaney filed this bill, and, the case coming on to be heard, it was stipulated that the evidence taken in the orphans' court should be used here. No additional evidence, either on the question of marriage or of fraud in procuring the release, was taken in this court.

"I shall deal with the first of these ques. tions very briefly. It seems to me very plain that, while there was no ceremonial marriage, the connection was matrimonial, and not meretricious. In addition to the evidence of Mrs. Mullaney that there was a verbal agreement of marriage, the following facts appear:

Michael Mullaney kept a grocery and liquor store in Bayonne. He was also for many years postmaster. During the twenty years that he and Mrs. Mulla ney lived together, they regarded each other, and were treated by their customers and by their friends and relatives, as man and wife. In their correspondence, some of which is in evidence, they recognized each other as such. There was one child born to them-a son, who died when about eight years old. The inscription over his grave was as follows:

“ 'Our Little Simey. “ 'Simon K. son of Michael & Pauline Mullaney died March 23, '73, age 8 years,

3 mos. & 10 days.
'Sleep on my Babe and take thy rest.
“ 'God called thee home.
'He thought it best.

“ 'Selected by his grandmother.' “After the separation he told the witness Frank Hovell that he could not sell the lots because he could not get his wife to sign off. The defendants' witnesses, in so far as they do not corroborate complainant's witnesses, apparently draw their conclusion that the cohabitation was illicit only from the admitted fact that there was no ceremonial marriage. The evidence shows that there was an interchange of consent, and that this was followed by cohabitation, accompanied with matrimonial habit and repute.

or

“The important question to be determined have assumed that the release was valid, un. is whether this court should avoid the re til it was decreed by this court to be lease for fraud. An objection was made in fraudulent and void. It was proper for it to limine that this question, having been de have received the release as a valid instru. cided by the orphans' court, became res ment, and to have given it such weight as it adjudicata, and not re-examinable here. I was entitled to, in determining the question think there are two answers to this objec- of administration. The orphans' court had tion: First, the orphans' court had no juris before it the evidence on which to decide diction to decide the question; second, if it whether Mrs. Mullaney was was not had, its decision thereon was not conclusive, Michael's widow. It had proof of who were for the reason that the point decided was next of kin. It had, too, Mrs. Mullaney's only incidentally cognizable.

release. It was therefore in a position to "The jurisdiction of the orphans! court is decide to whom, under the then existing cirlimited to those matters which have by stat cumstances, administration should be comute been confided to it. It has no inherent mitted. It is true that subsequent litigation jurisdiction to decide whether a release of in another tribunal might have varied the lands or personal property is voidable for rights of the parties as they then appeared fraud. The utmost that can be claimed is, to be, but this was only a not uncommon inthat it may determine questions of law and stance of a right ascertained by one tribunal, equity, the decision of which is necessary to acting withiu its sphere, being subsequently the decision of some other matter expressly modified hy the decision of another tribunal committed to it (Dunbam v. Marsh, 52 N. J. acting also within its sphere. In other Eq. 261, 30 Atl. 473), just as this court may words, the mischief, if mischief it was, arose decide legal questions when they arise in out of the fact that-such is the complexity cidentally and collaterally in a suit rightly of human affairs—it has been found conveninstituted for equitable relief (Kean v. Union ient, if not necessary, to apportion the ju. Water Co., 52 V. J. Eq. 813, 31 Atl. 282, 46 dicial work of the state among the several Am. St. Rep. 538). The orphans' court bad courts, instead of giving to any one unpower to decide the question whether Mrs. limited jurisdiction to deal with every phase Mullaney was in fact the widow of Michael of every subject that might come before it. Mullaney, for letters of administration could The proceeding to determine the fraudulent only be granted to her on this foundation; character of the release was therefore coram and, if the question were in doubt, it would non judice, and the determination worked no necessarily hear proof on the subject. But estoppel. if that court could perform its statutory duty "If I had come to the conclusion that the without trying questions properly cognizable court had jurisdiction to determine the quesby some other tribunal, it would be without | tion of fraud, I should still have thought that jurisdiction to pass upon them. Thus it has its determination would not have been conbeen held in several cases that when an ad clusive. Lord Chief Justice De Grey thus ministrator makes application to sell lands expresses himself in the leading case of the to pay debts, the estate not being insolvent, Duchess of Kingston: 'From the variety of the orphans' court has no power to determine cases relative to judgments being given in the validity of the claims in respect of which evidence in civil suits, these two deductions the administrator bases his application. The seem to follow as generally true: First, determination, under our system, belongs that the judgment of a court of concurrent to other courts. Miller V. Pettit, 16 N. J. jurisdiction directly upon the point is, as Law, 421; Vreeland v. Schoonmaker, 16 N. a plea, a bar, and, as evidence, conclusive J. Eq. 512; Smith v. Smith's Administrator, between the same parties upon the same 27 N. J. Eq. 445; Middleton v. Middleton, | matter directly in question in another court; 35 N. J. Eq. 115. It has also been held, where secondly, that the judgment of a court of exthe estate is not insolvent, the orphans' court clusive jurisdiction directly upon the point has no power to adjudge that a creditor has, is in like manner conclusive upon the same by inequitable conduct, discharged it from question between the same parties coming liability to lim. Partridge v. Partridge, 46 | incidentally in question in another court for N. J. Eq. 434, 19 Atl. 662; Id., 47 N. J. Eq. a different purpose.

But the judgment of 601, 22 Atl. 1075. Now, there is no more concurrent or exclusive jurisdiction is reason why the orphans' court should have neither evidence of any matter which came assumed jurisdiction to try the validity of collaterally in question, though within their the release under consideration than there jurisdiction, nor of any matter incidentally would be for a court of law, in an action of cognizable, nor of any matter to be inferred ejectment, to adjudge whether the deed un by argument from the judgment.' der which grantee claimed was obtained by "It seems to me that the question resolved fraudulent misrepresentation. The law court by the orphans' court, if cognizable at all, would adjudge in accordance with the legal was only incidentally cognizable, and only title, and would leave the grantor, in the to be inferred by argument from the order case supposed, to his remedy in equity; and actually made. The statute says the adso, in like manner, the orphans' court should ministration shall be committed to the wid.

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The pres

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ow or next of kin of the intestate. Under court could have brought him in by process, ordinary circumstances, it is usually confided and made a decree which would have bound to the widow. Wms. Ex'rs *363. Had the him. question been only whether Mrs. Mullaney "I now proceed to a consideration of the was the lawful wife of Michael Mullaney, its merits. On this branch of the case the mate. adjudication would, according to most of the rial facts are these: On the day of Mr. Mulcases, have bound this court. Lord Lynd- laney's funeral, at which his wife attended, hurst so held in Barrs v. Jackson, 1 Phill. she had a conversation with one Alexander 582, with respect to the analogous question of Martin, who describes himself as a general who was next of kin, revising the contrary auctioneer and collector. As the result of it, decision of Vice Chancellor Knight Bruce, he took her to William Salter, an attorney reported in 1 Y. & Coll. 587. The weight of practicing in Jersey City. Salter made apEnglish and American authority is said to be plication in her behalf for letters of adminin favor of the view taken by Lord Lynd istration, and conducted the proceedings on hurst. Duchess of Kingston's Case, 2 Smith, the caveat. Evidence was taken in open Lead. Cas. (6th Am. Ed.) *681.

court on January 5, 1900, and on several ent case does not call for a decision on the days thereafter, up to and including Februpoint. The question whether Mrs. Mullaney ary 2d. Great diligence in procuring witwas was not Michael Mullaney's wife nesses seems to have been displayed on both would under ordinary circumstances have sides, and during all this time Martin acted gone to the very heart of the controversy. as a messenger and process server for Salter, An issue could have been framed upon it. and appears to have had, by arrangement But the question of release or no release with him, a contingent interest in the result. could never have become an issue, in the Salter himself, it is said, was to have had proper sense of that term. If her allegation one-half the proceeds of the recovery. The was, 'I am widow,' and this was proved, case was argued and submitted to the court then the allegation by way of confession and on the 2d of February. Mrs. Mullaney was avoidance would be, not, 'You have executed present. Now, I think that all who heard a release, but, 'You, though widow, are with the evidence must have been greatly im. out interest,' and so not entitled to your pressed with the strength of Mrs. Mullaney's statutory right. Want of interest would be case. That Martin must have great confithe issue, and of this the release would be dence in it cannot be doubted, and in fact evidence. It would have been quite beyond he himself admits it. Notwithstanding, what the power of the orphans' court to have de he did was this: The argument had taken creed that the release should be avoided for place on Friday. On Sunday afternoon he fraud. The judgment in the case at bar was started for Newark to see a man named Eronly that the application of Pauline E. Mul win, who wanted to buy a horse. I shall laney for her appointment as administratrix give his version of what took place in some

be, and the same is, denied, and detail, for I think its inherent improbability her petition be dismissed, with costs.' will be apparent from his own statements.

"It seems to me clear, therefore, that the After he reached Newark it occurred to him, question of fraud or no fraud, had the court as he testifies, that it was his duty to go and been competent to try it, would have been see Mrs. Mulla ney. Somewhat incongruouscollateral. It would be strange indeed if ly, he adds, 'I went to see her for no purthis court could be estopped by the inference pose whatever. As the trolley car had carof an adjudication which the court neither ried him one or two blocks from Erwin's actually made, nor was competent to make. place, he decided not to go there, although Hibshman v. Dulleban, 4 Watts, 183, is a he had expected to make money by the trade case in point. It was there held that a de he was contemplating, but to go direct to cision by the Orphans' Court that legatee Mrs. Mulla ney's. He went there and found was precluded from excepting to an account her 'in a horrible condition.' She told him filed by an executor by a release of the that the neighbors were shouting at her; legacy did not debar him from proving that that a Mrs. Brown was telling her that she the release was procured by fraud, in a suit was trying to be a white man's wife; that for the legacy. A judgment is not conclu the Farrell people were round the streets sive and is no evidence as to facts not in nights, trying to get evidence; that she wantissue in the action, but proof of which is ed to move; and that she said to him: given therein to establish facts in issue. 'Aleck, you have got me in all this trouble. Belden v. State, 103 N. Y. 1, 8 N. E. 363. Get me $100, and you will never hear from

“Suppose Mrs. Mullaney, instead of assign me again. He says that he told her he did ing her interest to the heirs and next of kin, not see low he could get any money for her, who happened to be parties to the orphans' but that she kept at him all that afternoon court proceeding and to the present proceed so that he neglected to see Erwin about the ing, had assigned to a stranger. Her lack of horse. Then he says, 'I made up my mind interest would be the same. Could the ques before I left the house that I would settle tion of fraud have been tried by the orphans' the case, no matter what I got; and I told court in the absence of the assignee? Cer. her I would go over to Bayonne, and ask a tainly it would not be asserted that that man named Smith, who is brother-in-law of

was

Mulla ney's, for $300.' She said, 'The d ey to get the job done. When asked to whom entire Mullaney family has not $300.' I he was to give the $400, bis reply was, 'I said, 'I would just as leave ask them for suppose, to whom it belonged.' When asked, $300 as I would for $100, and I'll do it.' 'Who was that? he says, 'I suppose, this And she says, 'If I get $300, I will give you woman, for she signed that release.' Notone.' He then told her that if he got the withstanding this supposition, he says he money he would telegraph for her to meet gave her $300, paid the fee of Mr. Marsh him at the corner of Broad and Market ($10), and gave Martin the balance ($90). 'I streets, Newark, and she said: 'I will not go supposed, if tbe woman got that $300, Marto Market and Broad streets. I don't want tin was entitled to the balance.' It does not to meet those Farrells.' She then suggested appear that from the beginning to the close the Central R. R. Depot, in Elizabeth, and he of this transaction Mrs. Mullaney was disaid 'All right,' as to the place, and that he rectly informed of the precise amount of the would telegraph her. On cross-examination settlement. The paper which Mr. Marsh he says that he thinks that it was he who read over and explained the effect of to Mrs. mentioned the Central Railroad Depot, and Mullaney was delivered to Dr. Forman. It not she. He then went to Smith's house, in is a complete release of all Mrs. Mullaney's Bayonne, reaching there after eight that right, title, and interest in all her husband's same Sunday evening. On the way, it occur lands and personal property, said to be worth red to him that he might as well ask Smith over $13,000. One or two days afterwards for $400. Accordingly he asked Smith for Mr. Salter notified that application that amount, and said, 'I want the money would be made to reopen the case for the early to-morrow morning. Smith told bim purpose of introducing it in evidence. This that they should go to George W. Mullaney, was the first notice that Mrs. Mullaney's as he was an heir indirectly only, and Mar counsel had of its execution. tin replied that he would not go to him. “Mrs. Mullaney's account of her meetings Then Martin said to Smith, 'I'll give you ad with Martin differs essentially from his. She bour and a half to let me know what you says: That he came to her house on Sunwill do.' Smith thereupon proceeded to see day afternoon, and told her that he had Mullaney, and Mullaney at once agreed to good news for her; that the case had been the $400. After that Smith went to a Dr. settled; and that her lawyer, Salter, had Forman, who agreed to go to Elizabeth the sent word to her that she should go to Elizanext morning with the money. After seeing beth and sign a paper. That she asked him these two gentlemen, Smith went to Martin's how much she was to get, and that he said, house, and told him that they would pay | 'About $300.' That her reply was that that $400. Less than two hours elapsed from the was very little for her to get; that her lawtime Martin first saw Smith, to the time yer had said that she would get ten times when the arrangement was completed. Next that. And that he answered that Salter had morning Martin went back to Mrs. Mul done the best he could, and she should be laney's without communicating with Mr. satisfied, that Mullaney had drunk up and Salter, her solicitor, or Mr. Linn, her coun. used up his money with women; and that sel. He reached her house between seven his relatives had robbed him to such an exand eight o'clock, and took her from Newark tent that the estate bad all gone down. That to the Central Railroad Depot in Elizabeth. he told her that the other heirs would only In the meantime Forman had received from get $98 apiece. Mrs. Mullaney is corroborSmith, at Bayonne, $400, $300 of which was ated in this version of the interview by a made up of three $100 bills, and reached the colored man named Holmes, who lives in the Elizabeth Depot between nine and ten same house with her, and was present at the o'clock. From there, Forman, Martin, and conversation. It is, on its face, so much more Mrs. Mullaney proceeded to the office of probable than Martin's version, that I have Frederick Marsh. Mr. Marsh had had potb no doubt of its substantial accuracy. To suping whatever to do with the case, but under pose that Martin, a horse dealer and aucDr. Forman's instructions he prepared a re tioneer, was so moved by Mrs. Mullaney's lease, expressed to be for the consideration tears and entreaties that he was compelled of one dollar, which Mrs. Mullaney signed. to take a course which he knew was contrary It may be remarked, in passing, that this re to her pecuniary interest and his own, in lease is noticeable not only because it fails a case which he admits he believed to be a to express the true consideration, but be. good oue, and, to take this action so bastily cause it contains no less than fourteen gran. that he did not find time to consult her own tees, whose names, including their middle counsel, who lived in the same town with names, are given in full, with their respective him, quite transcends belief. There must be places of residence, in New Jersey and in dif another explanation of his conduct. That he ferent towns in the state of New York. Dr. is unscrupulous appears from his own eri. Forman's version of how he executed his er dence. That he is unworthy of belief ab. rand is that he received the $400 from Smith, pears from the testimony of his neigbbors. who said that he was to go to Elizabeth and I have no doubt that he went to Newark that procure a good lawyer and get a release from Sunday afternoon because of some under. the woman, and that he was to use the mon. standing with some one representing the in

84 A.-60

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