1 Robbins.

Watkinson v. Watkinson.

of his, but by reason of the fact that he has again married. But no act on the part of the complainant is shown upon which the second spouse acted in going through the ceremony of marriage with the defendant herein. There is no proof that the complainant herein had the least knowledge or notice that her husband was about to marry again. She is not even guilty of standing by in silence. She was not present at the marriage. In fact, the existence of the new relation with the second spouse was not set up as a defence or directly proven. It was only mentioned incidentally in the production of the evidence. The date of the marriage or the circumstances attending it were not given.

I think at this day, with the light of common knowledge on the subject of obtaining divorces, based on unsubstantial residence and extraterritorial service of process, that the wholesome rule should be and is that a person who proposes to intermarry with another who has been divorced, should be held to be bound to inquire fully into the decree of divorce, and when it is based upon extraterritorial service of process to inquire carefully into the necessary basic fact of domicile on the part of the complaining spouse and require strict proof on that subject.

That burthen imposes no greater hardship on the proposed. new spouse than is imposed on every person who proposes to make a purchase of land. Many of our titles to land depend entirely upon facts not appearing upon the record-matters strictly in pais, into which the purchaser is bound to inquireand it is no greater hardship to put the same sort of burden on the person proposing to marry a divorced person.

Counsel for defendant, in his argument, relies on two cases in New Jersey, namely, first, Nichols v. Nichols, 25 N. J. Eq. (10 C. E. Gr.) 60. That was an action by the wife against her husband for a divorce from the bond of matrimony on the ground of adultery, and for alimony. The defendant set up in defence a decree of divorce of a court in Indiana. The allegation against the validity of this decree was that the court had no jurisdiction, and that it was fraudulent and void.

Watkinson v. Watkinson.

67 Eq.

The fact was that the suit was commenced there by the husband and process served on the wife in Massachusetts, and she appeared to the suit by attorney. That fact was found by the court against the denial of the wife. The chancellor held the decree valid, although collusive. Whether such ruling will stand the test of more modern cases, like McGowan v. McGowan, 57 N. J. Eq. (12 Dick.) 322, and other cases of that sort, may well be doubted.

But the chancellor put it distinctly on the ground that the parties to a collusive divorce are bound thereby.

In that case the husband married again immediately after the divorce, and had a child, and the first wife, with full knowledge of that, rested without action for about ten years. The distinction between that case and this is that the divorce was held, in the first case, absolutely valid between the parties. The next case is Yorston v. Yorston, 32 N. J. Eq. (5 Stew.) 495.

There the circumstances were somewhat similar to those in Nichols v. Nichols. The husband, before obtaining the divorce, made a provision for the support of his wife, and, after obtaining it, married again, with what amounted to a consent on her behalf, and continued to support her for several years, and the occasion of the present suit was that she feared he was going to withdraw the support which he had been giving her directly and indirectly.

The chancellor there stated, distinctly, that the bill of the former wife did not charge any lack of validity in the decree, and he says: "Had the complainant desired to attack the decree she might have done so in her bill as originally filed, or she might have amended her bill after answer so as to question the decree, but she did neither." And he held that her action amounted to connivance with the adultery which she charged and to condonation of it.

Several other cases cited by counsel for complainant sustain the view which I have hereinbefore taken.

The result is that I am of the opinion that the complainant

had no domicile or residence in the State of New Jersey at the time of the filing of the bill, which resulted in the decree herein attacked, or during the pendency of that suit; that the adultery on the part of the wife, the complainant herein, upon which the decree therein was based, had been thoroughly condoned by the husband; and the allegation of condonation pending that suit and before the decree therein, is sustained by the weight of the evidence; and that the complainant's delay in asserting her rights has not been such as to bar her from relief. I will advise a decree accordingly.

GRACE L. FURNISS and WILLIAM P. FURNISS

V.

WILLIAM H. LEUPP, trustee.

[Decided June 22d, 1904. Filed December 23d, 1904.]

A trustee of a fund made an unauthorized investment of a portion of it, which his successor recovered, with interest, from his executors. The original trustee also made an unauthorized loan of a part of the fund, at their request, to the life tenants entitled to the income. The deed of settlement provided that the life tenants should have no power to encumber or anticipate income.-Held, that the application of the interest recovered from the executors of the original trustee to the payment of the debt of the life tenants did not amount to an anticipation of the income, but was proper.

On motion on petition and answer.

Mr. Randolph Perkins, for the petitioners.

Mr. Willard P. Voorhees, for the respondent.

Furniss v. Leupp.

67 Eq.

PITNEY, V. C.

The petitioners, Grace L. Furniss and William P. Furniss, are tenants for life of a fund of about $100,000 in the hands of the respondent, William H. Leupp, who was appointed trustee thereof by this court as successor to the original trustee, Solon Humphreys, deceased.

Among the assets of the estate was an obligation of one Crosby for $5,700, which had been taken by said Humphreys for money loaned by said Humphreys as trustee under circumstances which rendered Humphreys personally responsible for the same.

The respondent, Leupp, recovered from the executors of Humphreys the principal sum of $5,700 and interest thereon from December 21st, 1899, amounting to $1,316.92.

The object of the petition is to compel the trustee to pay and distribute that sum of $1,316.92 among the petitioners.

The defence set up by the trustee in his answer is that the petitioner Grace borrowed of the trustee, Humphreys, $1,500 in July, 1899, and secured it by a mortgage on property known as "Miacomet," on the island of Nantucket; that subsequently, in 1894, she conveyed "Miacomet," subject to the mortgage, to the petitioner William, who expressly assumed the payment of the mortgage; and subsequently, on September 30th, 1897, the petitioner William borrowed the sum of $350 of the funds of the estate from the trustee, Humphreys, and to secure the same executed to him a mortgage covering "Miacomet" and also another property in Nantucket, known as "Hertzruhe." Respondent further avers that these investments were entirely unwarranted and the securities quite insufficient and were such a misapplication of the funds of the estate as to render both Humphreys and the petitioners liable to replace the moneys in restoration of the estate. He further avers that, although these Nantucket mortgages were not specifically mentioned in the decree of this court, which decree is dated July 16th, 1901, which appointed him trustee, and were not accepted by him as available assets, yet they did in fact pass to him by virtue of one of the clauses of said order. And he asserts that it is his duty

to insist upon the application of the arrears of interest, $1,316.92, to the reduction of the Nantucket mortgages.

In this I think he is clearly right.

(In order that there may be no mistake it is proper to observe that the petitioner Grace obtained from the trustee, Humphreys, two separate loans upon separate properties in Nantucket, of which one was paid off by her in cash to said Humpreys and is mentioned in the above-mentioned order of July 16th, 1901. It was not suggested at the argument that the two mortgages herein first specifically mentioned were covered by the clause in the order of July 16th, 1901, which refers to the Nantucket mortgages.)

Respondent, in his answer, further sets out facts, which it is not worth while to recite here, tending to show that there are other parties interested in the disposition of the present fund and that the proceeding should have been by bill, not by petition.

The matter was brought on for hearing upon the petition and answer, and for the purposes of the hearing the facts set forth in the answer were admitted.

The reliance of the petitioners, in answer to the defence of the respondent, was rested upon a clause found in the original deed of settlement, dated July 31st, 1882, by which the fund was vested by the petitioners in Mr. Humphreys in these words:

"The said trustee, party of the second part, shall hold principal, increase and income of said fund, free from all claims, attachments. judgments, executions and liens of every nature by creditors against either of said parties of the first part, and the said parties of the first part shall not have, nor shall either of them have; any power to anticipate, charge or encumber the said principal fund or any part thereof, or the increase, interest or income thereof, or in any way defeat the intent of this instrument as herein expressed, which is to make provision for the support, maintenance and personal comfort of the parties of the first part, free from all liens and claims of creditors."

The question for determination is whether the fund now in immediate dispute comes within the scope of that language. The rule seems to be entirely settled that when a trustee makes an unauthorized investment of trust funds at the request of and