and that as to these matters defendant had directed plaintiff not to proceed until the stones were completed in all other respects ready for inspection; that, when the stones were completed except in these particulars, plaintiff notified defendant, whereupon defendant's managers inspected the stones; that defendant refused to accept the stones, claiming certain defects, which the plaintiff's evidence tended to show did not exist; that by reason of this refusal plaintiff suspended work on the stones; that the stones still remain in plaintiff's yard; and that plaintiff has always stood and still stands ready to complete the work, and would have done so at that time but for the defendant's refusal to accept. Letters written by the parties, which had a bearing upon the question whether the plaintiff had satisfied the condition of the mortgage by performing his contract, were introduced in evidence. Of the letters so introduced there were two from the defendant to the plaintiff-one dated July 10, 1894, and the other July 14, 1894. The court charged the jury in part that the contract imposed in the condition of the mortgage was the entire contract, and the plaintiff could not satisfy the condition of the mortgage without fully completing the contract, unless he was excused from the full completion by some act of the defendant; but, if the stock furnished by the plaintiff was in accordance with the contract, and if the work to be done upon it was completed in accordance with the contract, except the cutting of the three links and the lettering, the positive declaration of the defendant in Its letters of July 10th and July 14th, above referred to, that it would not accept the "base," would excuse the plaintiff from further cutting and lettering the stone; so his failure to do this would not justify the foreclosure of the mortgage, nor prevent the plaintiff's recovering in this suit. To this portion of the charge the defendant except-❘ ed, claiming that, as there was nothing ambiguous about the letters, it was for the jury, and not for the court, to say whether the plaintiff was warranted from those letters in neglecting to complete the job; that, as there was nothing ambiguous about them, it was a question of fact for the jury, and not one of law for the court, and that, inasmuch as it was an entire contract, the plaintiff must have completed it; that the evidence was conflicting, but it tended to show that the defendant only told the plaintiff that, if he proceeded, he must proceed at his own risk. The fact that these letters contained no ambiguity did not make them for the jury to construe. It is a general rule that the interpretation or construction of written instruments drawn in language so plain as not to require the aid of extrinsic evidence is a question for the court, and to submit such a question to the jury is error. 1 Thomp. on Trials, 1065. See, also, Smith Woolen Machine Co. v. Holden, 73 Vt. 396, 51 Atl. 2; Currier v. Robinson's Est., 61 Vt. 196, 18 Atl. 147; Gove v. Downer, 59 Vt. 139, 7 Atl. 463; Wason v. Rowe, 16 Vt. 525; Mixer v. Williams, 17 Vt. 457. These two letters expressly state that the defendant will positively not accept the "base"; hence in that regard they were properly construed by the court. If the stock was such as the plaintiff was required to furnish, and the work to be done upon it by him was completed according to contract, except the cutting of the three links and the lettering, when he received these letters, the plaintiff was justified in stopping work. The contract set forth in the conditions of the mortgage was an entire contract, and incapable of severance. When the plaintiff received notice from the defendant that it would not accept the base to the monument, a part of the entire contract, it was, in effect, a notice that the defendant would not accept the stones specified in the conditions of the mortgage according to contract. This shows that the noncompletion of the contract was not the fault of the plaintiff, and that he was disposed and able to complete it had not the act of the defendant prevented. In that part of the charge excepted to there was no error, for such fault by the defendant should be removed before he can charge the plaintiff with a failure to perform. Cort v. The Ambergate, etc., Ry. Co., 17 Q. B. 127; Raynay v. Alexander, Yelverton, 76. It is urged, however, that it was the plaintiff's duty to have fulfilled the contract by completing the job and tendering it to the defendant. But, if the defendant refused to accept the stones according to the contract, the law did not require of the plaintiff the useless ceremony of thus making a tender. Hard v. Brown, 18 Vt. 87; Cobb v. Hall, 33 Vt. 233. The defendant requested the court to charge that the burden of proof was upon the plaintiff to show that the work was completed according to the terms of the contract. This request was not complied with, but instead thereof the court charged that the burden of proof was upon the defendant to show there was a breach of the conditions of the mortgage. An exception was taken to the neglect to charge as requested and to the charge as given in this behalf. To make out his case the plaintiff need show no more than. that the defendant committed the act which, in the absence of excuse or justification, constituted in law a tort to him. If facts existed which would justify the defendant in his act. even though they would show that he had committed no tort, such facts would constitute an affirmative defense, and the burden was upon the defendant to allege and prove them. Hence in the refusal thus to charge and in the charge as given there was no error. Bosworth v. Bancroft, 74 Vt. 451, 52 Atl. 1050. No other exceptions being relied on in the defendant's brief, judgment is affirmed. 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. Affirmed. 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 9th 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. Mullaney 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 questions 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. Mullaney 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 Mul- "Sleep on my Babe and take thy rest. "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. "The important question to be determined is whether this court should avoid the release for fraud. An objection was made in limine that this question, having been decided by the orphans' court, became res adjudicata, and not re-examinable here. I think there are two answers to this objection: First, the orphans' court had no jurisdiction to decide the question; second, if it had, its decision thereon was not conclusive, for the reason that the point decided was only incidentally cognizable. But have assumed that the release was valid, until it was decreed by this court to be fraudulent and void. It was proper for it to have received the release as a valid instrument, and to have given it such weight as it was entitled to, in determining the question of administration. The orphans' court had before it the evidence on which to decide whether Mrs. Mullaney was or was not Michael's widow. It had proof of who were next of kin. It had, too, Mrs. Mullaney's release. It was therefore in a position to decide to whom, under the then existing circumstances, administration should be committed. It is true that subsequent litigation in another tribunal might have varied the rights of the parties as they then appeared to be, but this was only a not uncommon instance of a right ascertained by one tribunal, acting within its sphere, being subsequently modified by the decision of another tribunal acting also within its sphere. In other words, the mischief, if mischief it was, arose out of the fact that-such is the complexity of human affairs-it has been found convenient, if not necessary, to apportion the judicial work of the state among the several courts, instead of giving to any one unlimited jurisdiction to deal with every phase of every subject that might come before it. The proceeding to determine the fraudulent character of the release was therefore coram non judice, and the determination worked no estoppel. "If I had come to the conclusion that the court had jurisdiction to determine the question of fraud, I should still have thought that its determination would not have been conclusive. Lord Chief Justice De Grey thus expresses himself in the leading case of the Duchess of Kingston: 'From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent "The jurisdiction of the orphans' court is limited to those matters which have by statute been confided to it. It has no inherent jurisdiction to decide whether a release of lands or personal property is voidable for fraud. The utmost that can be claimed is, that it may determine questions of law and equity, the decision of which is necessary to the decision of some other matter expressly committed to it (Dunham v. Marsh, 52 N. J. Eq. 261, 30 Atl. 473), just as this court may decide legal questions when they arise incidentally and collaterally in a suit rightly instituted for equitable relief (Kean v. Union Water Co., 52 N. J. Eq. 813, 31 Atl. 282, 46 Am. St. Rep. 538). The orphans' court had power to decide the question whether Mrs. Mullaney was in fact the widow of Michael Mullaney, for letters of administration could only be granted to her on this foundation; and, if the question were in doubt, it would necessarily hear proof on the subject. if that court could perform its statutory duty without trying questions properly cognizable by some other tribunal, it would be without jurisdiction to pass upon them. Thus it has been held in several cases that when an administrator makes application to sell lands to pay debts, the estate not being insolvent, the orphans' court has no power to determine the validity of the claims in respect of which the administrator bases his application. The determination, under our system, belongs to other courts. Miller v. Pettit, 16 N. J. | jurisdiction directly upon the point is, as Law, 421; Vreeland v. Schoonmaker, 16 N. J. Eq. 512; Smith v. Smith's Administrator, 27 N. J. Eq. 445; Middleton v. Middleton, 35 N. J. Eq. 115. It has also been held, where the estate is not insolvent, the orphans' court has no power to adjudge that a creditor has, by inequitable conduct, discharged it from liability to him. Partridge v. Partridge, 46 N. J. Eq. 434, 19 Atl. 662; Id., 47 N. J. Eq. 601, 22 Atl. 1075. Now, there is no more reason why the orphans' court should have assumed jurisdiction to try the validity of the release under consideration than there would be for a court of law, in an action of ejectment, to adjudge whether the deed under which grantee claimed was obtained by fraudulent misrepresentation. The law court would adjudge in accordance with the legal title, and would leave the grantor, in the case supposed, to his remedy in equity; and so, in like manner, the orphans' court should a plea, a bar, and, as evidence, conclusive between the same parties upon the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point is in like manner conclusive upon the same question between the same parties coming incidentally in question in another court for a different purpose. But the judgment of a concurrent or exclusive jurisdiction is neither evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.' "It seems to me that the question resolved by the orphans' court, if cognizable at all, was only incidentally cognizable, and only to be inferred by argument from the order actually made. The statute says the administration shall be committed to the wid ow or next of kin of the intestate.' Under ordinary circumstances, it is usually confided to the widow. Wms. Ex'rs *363. Had the question been only whether Mrs. Mullaney was the lawful wife of Michael Mullaney, its adjudication would, according to most of the cases, have bound this court. Lord Lyndhurst so held in Barrs v. Jackson, 1 Phill. 582, with respect to the analogous question of who was next of kin, revising the contrary decision of Vice Chancellor Knight Bruce, reported in 1 Y. & Coll. 587. The weight of English and American authority is said to be in favor of the view taken by Lord Lyndhurst. Duchess of Kingston's Case, 2 Smith, Lead. Cas. (6th Am. Ed.) *681. The present case does not call for a decision on the point. The question whether Mrs. Mullaney was or was not Michael Mullaney's wife would under ordinary circumstances have gone to the very heart of the controversy. An issue could have been framed upon it. But the question of release or no release could never have become an issue, in the proper sense of that term. If her allegation was, 'I am widow,' and this was proved, then the allegation by way of confession and avoidance would be, not, 'You have executed a release,' but, 'You, though widow, are without interest,' and so not entitled to your statutory right. Want of interest would be the issue, and of this the release would be evidence. It would have been quite beyond the power of the orphans' court to have decreed that the release should be avoided for fraud. The judgment in the case at bar was only 'that the application of Pauline E. Mullaney for her appointment as administratrix * be, and the same is, denied, and her petition be dismissed, with costs.' "It seems to me clear, therefore, that the question of fraud or no fraud, had the court been competent to try it, would have been collateral. It would be strange indeed if this court could be estopped by the inference of an adjudication which the court neither actually made, nor was competent to make. Hibshman v. Dulleban, 4 Watts, 183, is a case in point. It was there held that a decision by the Orphans' Court that a legatee was precluded from excepting to an account filed by an executor by a release of the legacy did not debar him from proving that the release was procured by fraud, in a suit for the legacy. A judgment is not conclusive and is no evidence as to facts not in issue in the action, but proof of which is given therein to establish facts in issue. Belden v. State, 103 N. Y. 1, 8 N. E. 363. "Suppose Mrs. Mullaney, instead of assigning her interest to the heirs and next of kin, who happened to be parties to the orphans' court proceeding and to the present proceeding, had assigned to a stranger. Her lack of interest would be the same. Could the question of fraud have been tried by the orphans' court in the absence of the assignee? Certainly it would not be asserted that that court could have brought him in by process, and made a decree which would have bound him. "I now proceed to a consideration of the merits. On this branch of the case the material facts are these: On the day of Mr. Mullaney's funeral, at which his wife attended, she had a conversation with one Alexander Martin, who describes himself as a general auctioneer and collector. As the result of it, he took her to William Salter, an attorney practicing in Jersey City. Salter made application in her behalf for letters of administration, and conducted the proceedings on the caveat. Evidence was taken in open court on January 5, 1900, and on several days thereafter, up to and including February 2d. Great diligence in procuring witnesses seems to have been displayed on both sides, and during all this time Martin acted as a messenger and process server for Salter, and appears to have had, by arrangement with him, a contingent interest in the result. Salter himself, it is said, was to have had one-half the proceeds of the recovery. The case was argued and submitted to the court on the 2d of February. Mrs. Mullaney was present. Now, I think that all who heard the evidence must have been greatly impressed with the strength of Mrs. Mullaney's case. That Martin must have great confidence in it cannot be doubted, and in fact he himself admits it. Notwithstanding, what he did was this: The argument had taken place on Friday. On Sunday afternoon he started for Newark to see a man named Erwin, who wanted to buy a horse. I shall give his version of what took place in some detail, for I think its inherent improbability will be apparent from his own statements. After he reached Newark it occurred to him, as he testifies, that it was his duty to go and see Mrs. Mullaney. Somewhat incongruously, he adds, 'I went to see her for no purpose whatever.' As the trolley car had carried him one or two blocks from Erwin's place, he decided not to go there, although he had expected to make money by the trade he was contemplating, but to go direct to Mrs. Mullaney's. He went there and found her in a horrible condition.' She told him that the neighbors were shouting at her; that a Mrs. Brown was telling her that she was trying to be a white man's wife; that the Farrell people were round the streets nights, trying to get evidence; that she wanted to move; and that she said to him: 'Aleck, you have got me in all this trouble. Get me $100, and you will never hear from me again.' He says that he told her he did not see how he could get any money for her, but that she kept at him all that afternoon so that he neglected to see Erwin about the horse. Then he says, 'I made up my mind before I left the house that I would settle the case, no matter what I got; and I told her I would go over to Bayonne, and ask a man named Smith, who is brother-in-law of I Mullaney's, for $300. She said, "The dentire Mullaney family has not $300.' said, 'I would just as leave ask them for $300 as I would for $100, and I'll do it.' And she says, 'If I get $300, I will give you one.' He then told her that if he got the money he would telegraph for her to meet him at the corner of Broad and Market streets, Newark, and she said: 'I will not go to Market and Broad streets. I don't want to meet those Farrells.' She then suggested the Central R. R. Depot, in Elizabeth, and he said 'All right,' as to the place, and that he would telegraph her. On cross-examination he says that he thinks that it was he who mentioned the Central Railroad Depot, and not she. He then went to Smith's house, in Bayonne, reaching there after eight that same Sunday evening. On the way, it occurred to him that he might as well ask Smith for $400. Accordingly he asked Smith for that amount, and said, 'I want the money early to-morrow morning.' Smith told him that they should go to George W. Mullaney, as he was an heir indirectly only, and Martin replied that he would not go to him. Then Martin said to Smith, 'I'll give you an hour and a half to let me know what you will do.' Smith thereupon proceeded to see Mullaney, and Mullaney at once agreed to the $400. After that Smith went to a Dr. Forman, who agreed to go to Elizabeth the next morning with the money. After seeing these two gentlemen, Smith went to Martin's house, and told him that they would pay $400. Less than two hours elapsed from the time Martin first saw Smith, to the time when the arrangement was completed. Next morning Martin went back to Mrs. Mullaney's without communicating with Mr. Salter, her solicitor, or Mr. Linn, her counsel. He reached her house between seven and eight o'clock, and took her from Newark to the Central Railroad Depot in Elizabeth. In the meantime Forman had received from Smith, at Bayonne, $400, $300 of which was made up of three $100 bills, and reached the Elizabeth Depot between nine and ten o'clock. From there, Forman, Martin, and Mrs. Mullaney proceeded to the office of Frederick Marsh. Mr. Marsh had had nothing whatever to do with the case, but under Dr. Forman's instructions he prepared a release, expressed to be for the consideration of one dollar, which Mrs. Mullaney signed. It may be remarked, in passing, that this release is noticeable not only because it fails to express the true consideration, but because it contains no less than fourteen grantees, whose names, including their middle names, are given in full, with their respective places of residence, in New Jersey and in different towns in the state of New York. Dr. Forman's version of how he executed his errand is that he received the $400 from Smith, who said that he was to go to Elizabeth and procure a good lawyer and get a release from the woman, and that he was to use the mon 54 A.-69 ey to get the job done. When asked to whom he was to give the $400, his reply was, 'I suppose, to whom it belonged.' When asked, 'Who was that?' he says, 'I suppose, this woman, for she signed that release.' Notwithstanding this supposition, he says he gave her $300, paid the fee of Mr. Marsh ($10), and gave Martin the balance ($90). 'I supposed, if the woman got that $300, Martin was entitled to the balance.' It does not appear that from the beginning to the close of this transaction Mrs. Mullaney was directly informed of the precise amount of the settlement. The paper which Mr. Marsh read over and explained the effect of to Mrs. Mullaney was delivered to Dr. Forman. It is a complete release of all Mrs. Mullaney's right, title, and interest in all her husband's lands and personal property, said to be worth over $13,000. One or two days afterwards Mr. Salter was notified that application would be made to reopen the case for the purpose of introducing it in evidence. This was the first notice that Mrs. Mullaney's counsel had of its execution. "Mrs. Mullaney's account of her meetings with Martin differs essentially from his. She says: That he came to her house on Sunday afternoon, and told her that he had good news for her; that the case had been settled; and that her lawyer, Salter, had sent word to her that she should go to Elizabeth and sign a paper. That she asked him how much she was to get, and that he said, 'About $300.' That her reply was that that was very little for her to get; that her lawyer had said that she would get ten times that. And that he answered that Salter had done the best he could, and she should be satisfied, that Mullaney had drunk up and used up his money with women; and that his relatives had robbed him to such an extent that the estate had all gone down. That he told her that the other heirs would only get $98 apiece. Mrs. Mullaney is corroborated in this version of the interview by a colored man named Holmes, who lives in the same house with her, and was present at the conversation. It is, on its face, so much more probable than Martin's version, that I have no doubt of its substantial accuracy. To suppose that Martin, a horse dealer and auctioneer, was so moved by Mrs. Mullaney's tears and entreaties that he was compelled to take a course which he knew was contrary to her pecuniary interest and his own, in a case which he admits he believed to be a good one, and, to take this action so hastily that he did not find time to consult her own counsel, who lived in the same town with him, quite transcends belief. There must be another explanation of his conduct. That he is unscrupulous appears from his own evidence. That he is unworthy of belief ap pears from the testimony of his neighbors. I have no doubt that he went to Newark that Sunday afternoon because of some understanding with some one representing the in |