liability they assumed. Thereupon Palmer, a friend of Walsh, was approached by Walsh and his friends about the matter and informed of the situation; and in order, as he states, to help Walsh out of the trouble with the bank, Palmer assigned the mortgage in question to complainant as trustee, to secure him and his codirectors for any money they paid in settling the bank's claim against Walsh.

Palmer now claims this was not his intention when he made the assignment; that he understood Walsh was in some trouble with the bank and was called upon to pay or secure the payment of money which he owed the bank, and

Edwin B. & Philip Goodell, of Montclair, for appellants.

N. R. Leavitt, of Elizabeth, for respondent.

PER CURIAM. The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chancellor Foster.

DIVORCE

SHAW v. SHAW.

May 3, 1918.)

(89 N. J. Eq. 214)

37(8) EVIDENCE AUTHORIZING DIVORCE FOR DESERTION.

A wife was entitled to divorce for desertion, as against defense of living apart by tacit consent, although, after her husband said to her he had no place to take her and no home for her, she lived in her daughter's house and did not make any effort to induce her husband to provide a home, he being able to do so, where the husband made no effort to induce her to live with him, the duty to make the effort lying chiefly on the husband.

that he intended by the assignment to secure (Court of Errors and Appeals of New Jersey. the bank, and not the directors, for the money owing by Walsh. Palmer claims he had only the most vague idea of the trouble between Walsh and the directors of the bank. He was suspicious that Walsh might be prosecuted, or might be discharged from his position as cashier, and was anxious to help him out of his trouble. It appears, however, that when Palmer executed the assignment to complainant he asked for whom Krouse was acting as trustee, and was told that he was acting for himself and other directors of the bank, and he knew that he was giving security for $3,600 due on the St. James loan. I am satisfied, although he does not now recall the matter, that he was fully acquainted with the situation when he made the assignment. To secure Palmer in the matter, Walsh assigned to him the Napa Company bonds, and two years later Palmer found they were worthless. On the same day Palmer assigned the mortgage to complainant, Walsh also gave complainant, as trustee, his note for $3,600, payable in three months, and at or about this time the directors paid the balance due the bank.

Summarized, the situation presented by these facts is that Walsh acknowledged he had made an improper and unwarranted use of the bank's funds, and in consequence was obliged to save the bank from loss; that he personally was unable to do so, and requested complainant and his codirectors to do it for him, promising to secure them against loss, and to repay them what they had paid on his account; that Palmer, with full knowledge of the situation, furnished this security at Walsh's request and for Walsh's accommodation and benefit, and delivered it to complainant as the promised security for the money paid by him and his codirectors at Walsh's request and for his benefit.

In view of Palmer's knowledge of the facts when he executed the assignment of the mortgage, and of the debt owing by Walsh to the directors at the time for the liability they had assumed and the money they paid at his request to keep him out of trouble, I am satisfied there was an actual valuable consideration for the assignment of the mortgage by Palmer to complainant, although the consideration did not move directly from complainant to Palmer or to the mortgagor, and it was not necessary that it should. Perkins v. Fidelity Realty Co., 69 N. J. Eq. 723, 61 Atl. 167, affirmed 71 N. J. Eq. 304, 71 Atl. 1135.

The decree asked for will be advised.

Appeal from Court of Chancery.

Bill by Laura B. Shaw against Thomas F. Shaw. Decree for plaintiff, and defendant appeals. Affirmed.

The following is the opinion of the Vice Chancellor:

My doubt in this cause has been whether the parties were not living apart by tacit consent. The testimony of the wife is that on her return from Europe in September, 1912, her husband, on the steamship wharf, said to her: "I have no plans for your future. I have no place to take you and I have no home for you." In this she is corroborated by her daughter and sonin-law. She has lived in her daughter's house ever since. She does not appear to have made any considerable effort to induce her husband to provide a home, although he has been able to do so. On the other hand, it is proved that the defendant has made no effort to induce her to live with him. In view of Sargent v. Sargent, 36 N. J. Eq. 644, a case which decides that the duty to make the effort lies chiefly on the husband, and which is in some respects not unlike the present, I am inclined to think the evidence sufficient to establish the desertion alleged.

Mulligan & Koenig, of Newark, for appel

lant.

Harry N. Reeves, of Newark, for respond

ent.

PER CURIAM. The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chancellor Stevens.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

LIFE ESTATE WITH POWER OF DISPOSAL DUR-
ING LIFE.

A will leaving an estate to another for life "with full power and authority to sell or otherwise dispose of, mortgage or in any way incumber the whole or any part of said property as he shall see fit," gave only a life estate with power of disposal during life.

"Third. All the residue of my estate, if any, I give, devise and bequeath to my three children, Harold Zimmerman, Emily McDermott and Arthur A. Zimmerman, equally to be divided among them, share and share alike."

By the codicil to his will, which Mr.. Zimmerman executed after the death of his wife, he

2. WILLS 616(3)-WHAT EXERCISE OF POW- made some slight reductions in some of the be

ER OF DISPOSAL DURING LIFE ESTATE.

quests. The defendant Arthur A. Zimmerman was named and has qualified as executor of both wills.

One to whom an estate was left for life with power of disposal during his life as he saw fit, On March 2, 1912, he filed an inventory of did not, by a mere demand for and receipt of Mrs. Zimmerman's estate showing that it contestator's estate and collection of several small sisted of household effects and bonds and mortmortgages, thereby exercise his power of dispos-gages amounting to $15,750.22, and on the same

al and in consequence enlarge testator's bequest of a life estate into an absolute gift.

Appeal from Court of Chancery.

Bill by Emily McDermott and others against Arthur A. Zimmerman, executor, etc., and others. Decree for complainants, and defendants appeal. Affirmed.

The following is the opinion of the Vice Chancellor:

The bill seeks an accounting from defendant as executor of Theodore A. Zimmerman, deceased, for certain property claimed to be part of the estate of Annie M. Zimmerman, deceased.

In March, 1917, defendant, as executor of Annie M. Zimmerman, made a final accounting in the orphans' court of Monmouth county, to which complainants filed exceptions, which after hearing were dismissed because the questions raised could not be considered and disposed of in such proceeding. Thereupon this bill was filed, and it was stipulated that the testimony taken and exhibits used in the orphans' court on the hearing of the exceptions should be used in these proceedings to determine the questions at issue without any further testimony being taken.

From this record it appears that on January 7, 1908, Theodore A. Zimmerman and Annie M. Zimmerman, husband and wife, made mutual wills. Mrs. Zimmerman died February, 1912. In November, 1915, Mr. Zimmerman made a codicil to his will, and in August, 1916, he died. The complainant Emily McDermott is their daughter, and the complainant Carl McDermott is her son.

Both wills contained provisions similar to the following, which was copied from Mrs. Zimmerman's will:

"First. I hereby give, devise and bequeath unto my beloved husband Theodore A. Zimmerman, all my estate, both real and personal, of whatsoever kind or wheresoever same may be situate to have and to hold unto my said husband for and during the term of his natural life, with full power and authority to sell or otherwise dispose of, mortgage, or in any way encumber the whole or any part of said property. as he shall see fit.

day, at the request of Theodore A. Zimmerman, the executor delivered to him all the property constituting Mrs. Zimmerman's estate, and in his accounting, filed on March 12, 1917, the executor prays allowance for "all personal property delivered to Theodore A. Zimmerman, sole legatee or beneficiary under the will of Annie M. Zimmerman, deceased," for the above-men

tioned value of the estate.

In January, 1917, defendant, as executor of Theodore A. Zimmerman, filed an inventory of his personal estate showing it to be valued at $16,053.56.

This controversy arises because complainants, who are entitled to the same interests in the estate of Mr. Zimmerman that they are in that of his wife, who had no creditors, are fearful that the creditors of Mr. Zimmerman, including the defendant Arthur A. Zimmerman, maj claim that the assets received by Mr. Zimmer man from his wife's estate are part of his estate, and that they will resort to and possibly exhaust such assets in the settlement of their claims against his estate.

It is conceded that Mr. Zimmerman's interest in his wife's estate was expressly limited to a life estate with power to sell or dispose of the whole or any part of it as he saw fit, and complainants claim that under the rule of Borden v. Downey, 35 N. J. Law, 74, Id., 36 N. J. Law, 460, Pratt v. Douglas, 38 N. J. Eq. 516, and Wooster v. Cooper, 53 N. J. Eq. 682, 33 Atl. 1050, that the annexing of the power of disposal to the certain and express words of the will limiting Mr. Zimmerman's estate for his life only will not enlarge his interest so that he will receive the estate absolutely. Defendant insists, however, that the circumstances present in this case except it from the general rule, because he claims that Mr. Zimmern.an exercised the power of disposal given him by the will, by demanding and receiving as the life beneficiary the entire estate of his wife; and Robeson v. Shotwell, 55 N. J. Eq. 318, 36 Atl 780, affirmed 55 N. J. Eq. at page 824, 41 Atl 1115, is relied on to support this contention But I do not find this case to support this con tention, or the facts to establish the exception claimed.

It appears from the record that at the time of his death Mr. Zimmerman was in possession of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the greater part of his wife's personal estate, with the exception of collecting the few small that he had received from her executor; that mortgages I have mentioned, and the proceeds when the executor delivered her estate to him of which can well be considered as part of his he did so by delivery merely, and did not for- inventoried estate. It also appears that he did merly execute and deliver to him any assign- not mortgage or in any way incumber the whole ments of the bonds and mortgages and other or any part of the property; and it also apsecurities constituting the valuable part of her pears that at the time of his death he was in estate. It also appears that a few mortgages possession of most, if not all, of her estate, in for small sums, and amounting to less than $1,- substantially the form in which he received it, 000, were paid to Mr. Zimmerman, and that and that the same is now in the possession of he had consented to the substitution of security the defendant as his executor; and I regard it for a bond and mortgage of $12,000 from one as significant that the inventoried value of his hotel property owned by one Mount to another personal estate is but a few hundred dollars in hotel property owned by the Zimmerman Hotel excess of the value of his wife's estate turned Company, and that defendant, individually, over to him by her executor, and this excess owns all but two shares of the stock of this can probably be accounted for as part of the uncompany, and that at the time defendant deliv- expended income received from her investments. ered his mother's estate to his father he obtain- I am satisfied that Mr. Zimmerman, instead of ed no receipt therefor and his father refused to intending or attempting to exercise the power give him any. of disposal granted him, exercised his control over his wife's estate to preserve it intact for the object of his wife's and his own bounty, and did not dispose of any part of it.

With the exception of the small mortgages he collected, I find Mr. Zimmerman did not exercise the power of disposal of her property given him by his wife's will, and that her declaration as expressed in her will can be carried into effect by holding that Mr. Zimmerman's estate in her property was not absolute, but was limited to his life, and that so much of her estate as remained undisposed of at his death should be distributed in accordance with the express provisions of her will.

A decree will be advised that the defendant individually and as executor of both wills account in this court for such undisposed portion of Mrs. Zimmerman's estate and make distribution thereof among those entitled thereto under the terms of her will.

Charles E. Cook, of Asbury Park, for ap

John S. Applegate & Son, of Red Bank, for respondents.

[1, 2] From these facts I have reached the conclusion that Mrs. Zimmerman did not intend to bequeath an absolute estate to her husband, but gave him a life estate only, with a power of disposal during his life as he saw fit, and I also find that Mr. Zimmerman did not by the mere demand for and the receipt of her estate thereby exercise his power of disposal and in consequence enlarge her bequest of a life estate into an absolute gift. This latter conclusion is based on these considerations: The transfer of Mrs. Zimmerman's estate by her executor to her husband was merely the delivery of the possession of her securities to him as the life beneficiary; this occurred before her estate was administered or settled, and Mr. Zimmerman, as the legatee for life with absolute power of disposal, was entitled to their possession, if he desired them, as the bequest was made by testatrix's will to him personally, and not to her executor or in trust for him. The defendant as her executor could under the statute have refused to deliver them to him, un-pellants. less he gave security for their return, but this he did not do. 3 Comp. Stat. p. 3089, § 8; Executors of Rowe v. White, 16 N. J. Eq. 411, 84 Am. Dec. 169; Courter v. Howell, 33 N. J. Eq. 80; In re Ryerson, 26 N. J. Eq. 43; Dodson v. Sevars, 52 N. J. Eq. 611, at page 617, 30 Atl. 477. The demand for and receipt of his wife's estate by Mr. Zimmerman was merely the exercise of his right to their possession as the legatee for life, independent of the power of disposal given him by her will; and, judging from the result, this demand for the possession of her assets was probably made with the intent to preserve instead of to dispose of them. Had his demand for possession of the assets of the estate been made with the intention of disposing of them, it is reasonable to assume that he would have demanded the formal assignment PRINCIPAL AND AGENT 1601⁄2-RIGHTS OF of them to him in order to have evidence of his title to them. Furthermore, I find that Mr. Zimmerman, except to a very limited extent, never attempted to exercise the power of disposal given him by her will. The terms of this power are that he is to enjoy her estate for life, "with full power and authority to sell, or otherwise dispose of, mortgage or in any way encumber the whole or any part of said property as he shall see fit."

From the proofs it appears he did not sell or otherwise dispose of the whole or any part of her property, or do any act in relation to it,

PER CURIAM. The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chancellor Foster.

(91 N. J. Eq. 10)

PIZZINI v. PIZZINI et al. (No. 43/687.) (Court of Chancery of New Jersey. July 19, 1919.)

ASSIGNEE OF MORTGAGE UNDER FORGED AS-
SIGNMENT BY AGENT.

Where complainant made her son her attorney in fact and authorized him to sign deeds, indorse checks, and receive any and all sums of money due, and the son forged complainant's name to a mortgage assignment, payment being made to him, held that, as complainant had made him her agent and he was authorized to dispose of the mortgage and receive payment, the assignee acquired at least an equitable title, and complainant was not entitled to have the assignment declared invalid.

(108 A.)

Suit by Anna G. Pizzini against William | mortgage and the bond it secured, two inB. Pizzini and others. Bill dismissed.

This son was accordingly clothed by his mother with power and authority to sell this The purchasers of the mortgage were rep- mortgage and to collect its proceeds of sale. resented in the transaction by the South The assignment of the mortgage which was Jersey Title & Finance Company, and Mr. accepted by the title company purported to Ernest A. Lord, as secretary of that com- be from complainant, and not from her son pany, had entire charge of the transaction for as her attorney in fact, although Mr. Lord, his company. All negotiations touching the who represented the title company, had been sale of the mortgage were with Wm. B. Piz- apprised in a former transaction of the existzini, a son of complainant, and were by cor- ence of a power of attorney held by the son respondence with him. March 18, 1914, he from his mother. The check given for the forwarded by letter to the title company the purchase price was made payable to com

RECTION OF VERDICT.

In a prosecution under indictment charging both a misdemeanor and a high misdemeanor (grand larceny), if the state was not satisfied aforesaid," it might have asked an instruction with verdict of "guilty of the misdemeanor that the jury find verdict on the count charging the more serious offense of grand larceny. 3. CRIMINAL LAW

1175-APPEAL-CURE OF

ERROR-FAILURE TO FIND ON ONLY SUSTAIN-
ABLE COUNTS.

"In a prosecution under an indictment charging both a misdemeanor and a high misdemeanor (grand larceny), failure of jury to find verdict of guilty on counts for high misdemeanor, verdict being "guilty of misdemeanor aforesaid," is not cured by fact that punishment imposed was justified under either count; prosecution for misdemeanor having been barred by statute

of limitations.

4. CRIMINAL LAW 147 - CONVICTION FOR BARRED CRIME-STATUTE OF LIMITATIONS.

plainant's order, and not to her son as at-,2. CRIMINAL LAW 889-INSTRUCTION-CORtorney in fact. Accordingly it may be said that the title company was not dealing with the son as an attorney in fact. But the son was nevertheless an attorney in fact, and was clothed by his mother with ample power to sell and deliver the mortgage and to receive the proceeds of sale whether the written assignment of the mortgage should be signed by him as attorney in fact or by his mother in person; much more then was he privileged by his mother to become the custodian of a check payable to her order. If, as an authorized custodian of that check he failed to apply it to his mother's use, the loss must fall upon her as against the purchaser of the mortgage. I think it immaterial that the trust company did not deal with the son under his power of attorney. It fully appears by the testimony that the son was in fact a lawful custodian of the mortgage; he in fact also enjoyed from his mother power to collect it or to sell it; he agreed to sell it, and in fact sold and delivered it; the purchaser in good faith delivered to the attorney in fact a check for the purchase price payable to the mother's order. If the powers of the attorney in fact included the right to receive the check in that form, it is clearly immaterial whether the person so delivering the check knew of or relied upon the power of attorney, since the check was from the moment of its delivery in the possession of an agent of complainant who had authority to receive it. Complainant's effort is to repudiate her son's act in selling the mortgage and receiving the proceeds, not because her son was not clothed by her with the power to sell and collect, but because the purchaser was not at that time fully aware of the fact that the son enjoyed those powers. It follows that if the instrument which was delivered by the attorney in fact as a valid, legal assignment of the mortgage was not effective as such, equitably the assignee must be deemed to have acquired, as against complainant, a title coextensive with that which the attorney in fact had power to confer.

It was error to pronounce sentence on conviction of an alleged crime for which the Legislature, by Criminal Procedure Act, § 152, the statute of limitations as to crimes, had said defendant should not be prosecuted, tried, or punished.

5. CRIMINAL LAW 1110(2)-ERROR TO SUPREME COURT-ALTERATION OF ITS RECORD.

On writ of error to review judgment of SuErrors and Appeals cannot undertake to alter preme Court in a criminal case, the Court of the record, as sent up by the Supreme Court, by correcting an alleged error of the clerk of the trial court in recording the verdict rendered by the jury.

Walker, Ch., and White and Williams, JJ., dissenting.

Error to Supreme Court.

Louis Levin was convicted on an indictment charging both a misdemeanor and a high misdemeanor, and he appealed to the Supreme Court, which reversed, and the State brings error. Judgment affirmed, and record remitted to the Supreme Court for further proceedings.

Martin P. Devlin, of Trenton (A. Dayton I will advise a decree dismissing the bill. Oliphant, of Trenton, of counsel), for the