Mr. James R. Nugent and Mr. Samuel F. Bigelow, for the complainant.

Mr. Elwood C. Harris, for the defendants.

STEVENS, V. C.

On September 22d, 1882, the Newark Savings Institution conveyed to Frederick R. Wolters a house and lot fronting on Parkhurst street, Newark. The grantee, wherever named, is designated in the deed, "Trustee for Rosa Mary Wolters." The habendum clause is as follows:

"To have and to hold the above-described land and premises, with the appurtenances, unto the said party of the second part (Frederick R. Wolters), his heirs and assigns, to the only proper use, benefit and behoof of Mary Rosa Wolters aforesaid, her heirs and assigns forever."

Mary Rosa was born in 1868. She had lost both father and mother before she attained the age of nine years. She was committed to the care of an orphanage in Brooklyn, and when ten years old was given by the mother superior of that institution to Frederick R. Wolters and his wife, who were childless. The evidence demonstrates that Mr. and Mrs. Wolters treated her in all respects as their child, giving her their own name. She lived with them up to the time of her marriage to Robert Shraft in April, 1895, a period of sixteen years. There can be no doubt but that they stood to her in loco parentis. Brinkerhoff and Wife v. Merselis' Executors, 24 N. J. Law (4 Zab.) 680, 683; Powys v. Mansfield, 3 Myl. & C. 367; Roberts' Appeal, 85 Pa. St. 84. Frederick R. Wolters died in 1900. He gave all his property, then consisting of an estate of about $100,000, to his widow. He made Robert Shraft one of his executors, and calls. him "my son-in-law."

The bill is filed by the widow, who prays that it may be decreed that she has, as against Mary Rosa, a perfect title to the premises deeded by the savings institution.

The complainant produces no evidence showing mistake or misapprehension at the time of the making of the deed. She bases her right on the following train of reasoning: She says that under the operation of the statute of uses, the legal title

was, at the time the deed was made, transferred instanter from Wolters, the trustee, to Mary Rosa, the cestui que use; and that thereupon, because the consideration proceeded from Frederick Wolters, she became his trustee under the doctrine of resulting trusts. This argument will not bear a moment's consideration, even if we assume, as I think without warrant from the authorities, that although Wolters stood in loco parentis, the principle of advancement, applied to a wife or child, (2 Pom. Eq. Jur. § 1039; Dyer v. Dyer, 1 Lead. Cas. Eq. *177; Sayre v. Hughes, L. R. 5 Eq. 380; Read v. Huff, 40 N. J. Eq. (13 Stew.) 234; Hallenback v. Rogers, 57 N. J. Eq. (12 Dick.) 221; 58 N. J. Eq. (13 Dick.) 580) would not have applied to him, had the conveyance of the legal title been directly and in terms to Rosa.

The statute of frauds requires declarations of trust to be manifested and proved by some writing signed by the party, the exception being of those cases in which the trust arises or results by implication of law. It is obvious that while a trust may result in the absence of express declaration, it cannot, under the operation of this rule, prevail against such a declaration. "It will not be raised," says the author of the American note to Dyer v. Dyer (1 Lead. Cas. Eq. 278, 3d Am. ed.), "in opposition to the declaration of the person who advances the money, nor in opposition to the agreement of the parties on which the conveyance is founded, or the obvious purpose and design of the transaction." This would seem to be so obvious as not to require a citation of authority for its support.

In the case at bar the conveyance of the legal title is made, not to Rosa, but to Wolters. The use or trust is expressly declared to be for her benefit. Because under the statute of uses it may have been executed in Rosa, even at law, Melick v. Pidcock, 44 N. J. Eq. (17 Stew.) 538, is this court, without anything in the deed to warrant it, to raise up another trust, the exact opposite of that declared? Should it say that, although the deed declared Wolters to be the trustee and Rosa the beneficiary, Rosa was, in fact, the trustee and Wolters the beneficiary? Such a conclusion would be unsupported by authority and contrary to legal principle.

I think the bill should be dismissed.

1. In a suit for divorce from bed and board, a motion for leave to file a cross-bill charging adultery, and praying for an absolute divorce, made more than six months after issue joined, and after final hearing had been moved and a witness sworn for complainant, should be denied, where adultery was not pleaded as a recriminatory charge to the bill or supplemental bill, and no facts were shown excusing the delay in presenting the cross-bill.

2. Where a husband has lost his affection for his wife and has conceived a hatred for her, and there is no probability that his feelings will ever soften, and their further association as husband and wife might be dangerous, a permanent severance from bed and board will be awarded the wife on proof of his extreme cruelty to her.

On bill for divorce from bed and board. Answer thereto, supplemental bill and answer thereto, and proofs on final hearing.

Mr. Howard L. Miller and Mr. Frederick A. Rex, for the complainant.

Mr. William J. Kraft and Mr. Howard Carrow, for the defendant.

GREY, V. C.

The complainant is the wife of the defendant. They were married in 1875, and have always lived in this state. She brings her suit for a decree of separation from bed and board because of his extreme cruelty, and for alimony. The cause has been brought to a final hearing on the issues joined in the bill of complaint filed in January, 1899, and the supplemental bill filed in 1901, and the defendant's answers to those bills.

The accusation in the original bill of complaint and in the supplemental bill is extreme cruelty. The defence pleaded in the answers to the bill and supplemental bill is a denial of any cruelty. No recriminatory charge that the defendant was guilty of adultery appears in either of the answers to the bills of complaint.

A recriminatory charge that the complainant had committed adultery with one Pitman is set up as a defence to a petition for alimony pendente lite, but no such charge has been pleaded by the defendant, either to the original or supplemental bill of complaint.

No pleading of the defendant presents, as an issue to be tried on this hearing, the recriminatory defence that the complainant had been guilty of an adulterous breach of her marriage vows, and for that reason had no status to ask the aid of the court by granting her a limited divorce and compelling her husband to observe his marital obligation to provide for her.

After the final hearing of the cause had been moved, and a witness sworn for the complainant, the defendant, for the first time (more than six months after issue joined), asked leave to file a cross-bill charging the defendant with adultery, with prayer for an absolute divorce. Nothing was exhibited to the court by way of showing of cause for this proposed radical addition (after the cause had been moved) to the issues to be supported or refuted by the evidence. It was thought to be unfair and unjust to the complainant to oblige her to answer at once so serious a charge, without any notice or previous opportunity for preparation to meet it, unless some sufficient reason were exhibited by the defendant in justification of the making of his motion at so late a period in the litigation. No attempt was made by the defendant to support his motion by proving any facts which explained his delay, in presenting it to the court in time to enable the complainant to prepare for hearing on the new issue. For this reason the motion for leave to file a cross-bill charging adultery was refused.

As the cause progressed it appeared that the defendant sought (without any pleading charging the complainant with adultery) to bring that charge in evidence against her as a defence to his

alleged extreme cruelty upon the ground that her adultery was the occasion of his abandonment of her.

Such a defence ought probably to have been made by a recriminatory pleading, but upon the claim that her act of adultery was the reason the husband discarded the wife, evidence as to her alleged crime was admitted.

The testimony satisfies me that the defendant beat and abused his wife, turned her out of doors, and refused to provide for her or to harbor her, and that his conduct was so violent and persistent that it amounted to the extreme cruelty mentioned in the statute. I am strongly inclined to believe that to avoid a decree which would oblige him to pay her alimony, he arranged, after the original bill was filed, to have her again live in the same house with him-finally casting her off and refusing to provide for her.

The testimony presented by the witnesses offered on the part of the defendant in support of his denial of his cruel treatment of his wife did not impress me as truthful, or in any way reliable, when it was delivered on the stand. His witnesses appeared to be willing to deny everything which imputed to him any dereliction or misconduct of any sort or kind toward his wife, whether they had personal knowledge of the acts of cruelty proven or not.

It was claimed that the recriminatory testimony charging the wife with committing adultery with the men Pitman and Appley would show not only that she did commit that crime, but that her adultery was the occasion of her husband's abandonment of her.

The testimony offered on the part of the defendant seeks to prove that the complainant committed adultery with Pitman in the years 1896 and 1897. That testimony is evidently inspired by ill feeling and resentment, as in the case of Lillie Cramer, now Mrs. Rudolph, or is dependent upon the defendant's own evidence, or is utterly unreliable. Wherever any two witnesses attempted to narrate the same incident, their variances in essential particulars of date, place or actual happening, not only from each other, but from their own earlier affidavits, made their testimony unworthy of belief. I am satisfied that the husband