executrix to pay his debts, the second be- again determined upon changes, for the draft queaths the business to his son-in-law of a new will when produced shows an obLow, and the third devises and bequeaths literation by the same character of marks the house and contents to his daughter Mrs. across the bequest of his business to his sonLow. One line of the third item is left un-in-law and the gift of a house and its contouched on the second page, and the fourth tents to his daughter, as appears on the origitem is a gift of the residue of his estate to inal will. The draft being found in the his wife. The fifth authorizes the executrix drawer of his desk after his death with the to sell real estate, and the sixth constitutes pencil marks upon it is prima facie evidence his wife executrix. Mr. Dodd says that one that the marks were made by him (Hilyard v. clause in the draft did not suit Mr. Froth- Wood, ubi supra), and would indicate that ingham, which one we are not informed, but, he was still in a state of dubiety as to what when the draft is produced, we find three disposition he would make of his property. items erased. If anything were wanting to show the inconLet us look again at the language used by clusive character of the marks made upon the testator at the time he made the pencil the face of the original will, it is supplied by marks upon his will. Mr. Dodd says that, the testimony of Mr. Dodd, who said that the in a conversation with him, the testator will was to be redrawn on the lines as he said that he had almost no estate left, and had proposed to make the changes and as inthought he ought to change his will, and dicated by the lead pencil marks, and those asked the witness to call his attention to the lead pencil marks were for the instruction of matter the next day so he could get the will the draftsman as well as the ones put on by out of the safe and make the changes. These him. Now, according to this testimony, the expressions, read in connection with the tes- testator did not change, but proposed to make tator's direction to the witness to take the changes, in his will, and the pencil marks will to the scrivener to make a new draft ac- made both by the testator and the witness cording to directions, one direction admitted- were intended for the draftsman, and those ly being that the third item, which was more pencil marks, and nothing more, would have effectually canceled by pencil marks than any indicated that the draftsman was to omit enof the other provisions, should be incorporat- tirely from the new draft the third item ed into the new draft, leads my mind to the which contained a bequest of the business, conclusion that the pencil marks upon the but, when the draft came back, it contained will were not made animo revocandi, but the clause giving the business to Mr. Low, inwere made as a guide and by way of instruc- stead of Mr. Dodd, just as Mr. Dodd says tion to the scrivener, concerning the drawing Mr. Frothingham intended. This shows conof a new will which the testator proposed to clusively that that intent, with reference to execute in substitution for the one upon the second item, was to be gathered from the which he had made the marks. My judgment pencil marks plus the verbal instructions, is that there was a verbal direction given and therefore there was no cancellation of to the scrivener which Mr. Dodd forgot to the second item by the drawing of the pencil tell about when he was examined as a wit- marks upon it because of a want of intent on ness, and that was concerning the fourth the part of the testator thereby to revoke that item of the original will, which devised and portion of his will. The testimony shows bequeathed a house and lot to Mrs. Low. that the tract in Passaic and Bergen counties though effectually canceled by a lead pencil devised to his wife had been sold by the tesmark, if canceled at all, this item appears in tator between the date of making his will the new draft as item 3. In my opinion the and the time of making the lead pencil marks scrivener was instructed by Mr. Dodd to re- upon it. The testimony does not disclose any write this item into the new draft, or it sale of the property in East Orange, which would not have appeared in it. Without he bequeathed to his daughter. The learned directions to incorporate that item in the judge in the court below stated that, although new draft, the scrivener could hardly have not in proof, it was stated by counsel at the made the mistake of renumbering and rewrit-hearing that the real estate devised by the ing it, for, as he copied it word for word and testator to his daughter Lillian Low in the line for line from the old will into the new fourth item of his will and to his wife in the draft, his eyes would have beheld at every fifth item of his will had been sold prior to glance the mark of obliteration. He must making the pencil marks in December. If have been instructed to rewrite that item not- this be so, it is somewhat singular that he withstanding the erasure. I am aware that should have written the word "Sold" only there is no direct testimony to the effect that upon the description of the tract in the counthe testator sent word to the scrivener to re- ties of Passaic and Bergen, and not upon embody the fourth item of the will into the the description of the house and land on West draft notwithstanding the pencil erasure Seventy-Seventh street, New York, and the mark upon it, but it is reasonably to be pre-house and land at Deal Beach, N. J., which sumed that such instruction was sent. In no tracts he devised to his wife in the fifth other way can I account for the presence of item, and that he should not have so written item 3 in the new draft. the word "Sold" upon the description of the

Al

In other words, if all of these properties | the deceased delivered his will to his execuhad been sold at the time he made the pen- tor, and requested him to make certain alcil marks upon the will, and if the word terations in it, which he did in pencil, draw"Sold" was written with any idea of signifi- ing it through the signature at the bottom of cance at all, it would seem that it would have the will. The deceased expressed his apbeen written upon the descriptions of all probation of the alterations, and said he the properties similarly situated. Surely would make a copy of the instrument and the word "Sold" written alone across the de- execute it. He afterwards wrote a paper scription of one of the properties would in- in substance the same as the will, but did dicate that it alone had been sold, and the not execute it. The court held that the sigrest still remained to the testator. Assum- nature on the will being struck through was ing that the statement of counsel just advert- to be regarded as preparatory to the deceas ed to has the same force as evidence, the facts ed making a new will, which he did not do, stated can have no controlling effect. On this and that must be construed as only a conscore the remarks of Skillman, Surrogate, in ditional cancellation, and consequently not Matter of Raisbeck, 52 Misc. Rep. 279, 284, a revocation. If, as held in the case just 102 N. Y. Supp. 967, are pertinent. He mentioned, the cancellation of an entire will said that some point was made that certain will not be established when the signature provisions of the paper propounded as a will of the testator is struck out, because the canin that case were invalid and that others cellation was only done with a view to the were impossible of execution, but he remark- substitution of a new testament to be exeed that with those questions he had no con- cuted, then surely the striking out of only cern when dealing with the sole question as parts of a will made with the same intento what was in the testator's mind when he tion to substitute for the document a new made the pencil marks upon the will. The testament will not, in the absence of the application is that, although certain gifts execution of such new testament, operate as made by Mr. Frothingham are inoperative a revocation of the parts of the will which because of his altered circumstances, that are thus tentatively canceled. In Powell v. cannot be urged as a reason for holding that Powell, 14 L. T. Rep. 800, the question was, the erasures on his will were made animo whether a will made in 1862 was revived by revocandi. I do not say that the fact can- the destruction of a will made in 1864, which not be considered with other facts as in- revoked the first one. The deceased intenddicative of such intention, but I do say that, ed by the destruction of the second will to standing alone, it is entirely without con- revive the first, but the second will was protrolling effect. bated as it was revoked only with intent to revive the first, which it was inefficacious to do. A draft of the second will was admitted to probate as and for the testament which had been destroyed. Speaking to the doctrine of dependent relative revocation, the court said that if the act of destruction be done with the sole intention of setting up and establishing some other testamentary paper for which the destruction of the paper in question was only designed to make way, it was clear that in such case the animo revocandi had only a conditional existence; the condition being the validity of the paper intended to be substituted. Upon principle, the doctrine of this case is pertinently applicable to the case in hand; for, just as surely as a prior will is not revoked by the destruction of a later will which in terms revokes the first one, erasures made upon the face of an existing will, when made with a view to the execution of a new testament to give effect to the intentions of the testator as expressed in the original will modified

Now, as the new draft contained a devise of the East Orange house to his daughter, the same as in the original will, it may be that the reason the testator drew the pencil mark through that item of the new draft was that he had sold the East Orange property between the date of making erasures upon the face of the original will and his examination of the new draft. In the absence of a precise statement by counsel giving the dates of the sales of his various tracts of land by the testator and the exact dates of the markings upon the original will and upon the new draft, it may be presumed that the sale of the East Orange property was effected during the interval just mentioned. In the Matter of the Will of Kirkpatrick, 22 N. J. Eq. 463, two legacies were canceled by lines drawn by the pen across and upon the words. Besides this, there were memoranda in the margin, one opposite each canceled part signed by the testatrix in the one case and by her initials in the other, stating she wished to erase those parts. The to the extent of the erasures made, will not canceling was clearly done by her, and there was no evidence to overcome the presumption that the cancellations were made animo revocandi. In Theobald on Wills (6th Ed.) p. 44, it is laid down that, if a will is shown to have been canceled for the purpose of making a fresh will, the original will is not revoked if no fresh will is made. In the

operate as a cancellation of the clauses in the will thus obliterated, and especially is this so when, as in this case, the erasures upon the will do not discover all of the testator's intentions with reference to alterations, part of which reside in parol instructions to the scrivener. The case under consideration, as I view it, is essentially a fact

REILLEY et al. v. CURLEY et al. (Court of Chancery of New Jersey. Dec. 15, of. The answering affidavits are mainly di

the engine a proper one to be used with no unnecessary noise in this business. There is some slight attempt to show that it does not make much noise, but there is no direct denial of the allegations of the witnesses for the complainants that much noise does result from the operation. An opportunity was afforded the defendant Curley to experiment with a muffler and in such other way as he might think fit to adopt, but the proofs show that he did not succeed in minimizing the volume of noise, which was as great as theretofore.

Zeigener & Lane, for complainants. Tumulty & Cutley, for defendants.

GARRISON, V. C. (after stating the facts as above). It will be useful to consider several questions of law before dealing directly with the case at bar. Since the defendant Curley is not engaged in improving the land on which he is piling the stone, but is merely using the land as a storage place for the stone, there is no occasion for the application of the principle that neighbors must endure the usual and customary discomforts arising out of the improvement by one of his property.

The first question relates to the principle to be applied to the rights of the respective parties, and this has been well summed up in a recent case in this court as follows: "While defendant is entitled to the enjoyment of its property in the pursuit of a lawful business, that business must be conducted with due regard to the well-recognized rights of surrounding property owners. When such business becomes creative of conditions which clearly render the appropriate enjoyment of surrounding properties impossible, the rights of others are invaded, and equity will restrain the persistent pursuit of such injury." First M. E. Church of Cape May v. Cape May Grain & Coal Company (N. J. Err. & App.) 67 Atl. 613, 614 (Leaming, V. C., 1907).

Sanitary Co. (N. J. Ch.) 67 Atl. 389 (Pitney. Adv. M., 1907); First M. E. Church v. Cape May Grain & Coal Co., supra; Powell v. Bentley & Gerwig Furniture Co., 34 W. Va. 804, 12 S. E. 1085, 12 L. R. A. 53 (with numerous cases in the notes); Hill v. McBurney Oil & Fertilizer Co., 112 Ga. 788, 38 S. E. 42, 52 L. R. A. 398; Froelicher v. Oswald Iron Works, 111 La. 705, 35 South. 821, 64 L. R. A. 228, and note; Herring v. Wilton, 106 Va. 171, 55 S. E. 546, 7 L. R. A. (N. S.) 349, 117 Am. St. Rep. 997; 2 Wood, Nuisances (3d Ed.) § 611.

The defendant Curley placed the stress of his argument, so far as the law applicable to the case is concerned, upon the distinction suggested by the Vice Chancellor in the case of Hennessey v. Carmony, 50 N. J. Eq. 616, 25 Atl. 374 (Pitney, V. C.). The court in that case drew a distinction between that class of nuisances which affected air and light merely by way of noise and disagreeable gases and obstruction of light, and those which directly affected the land itself or structures upon it. The only pertinence of the distinction relates to the degree of the alleged nuisance; the Vice Chancellor suggesting that in the former class of cases a much greater degree is required to entitle the party to relief than in the latter, but the whole matter is in my view set at rest by the most recent decision of the Court of Errors and Appeals upon this subject. The case of Roessler & Hasslacher Chemical Company v. Doyle, in the Supreme Court. reported in 73 N. J. Law, 521, 64 Atl. 156 (1906), was affirmed in the Court of Appeals (74 N. J. Law, 850, 67 Atl. 1102 [1907]) by the unanimous vote of that court for the reasons set forth in the Supreme Court. In the Supreme Court attention is called to the distinction above referred to, which apparently was first suggested by Lord Westbury in St. Helen's Smelting Co. v. Tipping, 11 H. L Cas. 642; and Judge Reed, in writing the The next question is whether noise alone opinion, said (73 N. J. Law, 528, 64 Atl. 159): may constitute such a nuisance as to subject "These observations of Lord Westbury seem the one creating the same to restraint in eq- to have suggested the form of the requests uity. That such is the case I am convinced on the trial of the present case. The court from the authorities not only in our state, was asked to charge that the undisputed evibut in many other jurisdictions. Of course, dence was that the odors and noise merely the character and volume of the noise, and affected the air and plaintiff's personal comthe time and duration of its occurrence, and fort, that the plaintiff's residence is not (sic) the place where it occurs, and the surround-in a manufacturing locality, and that the ings thereof, are the important and deter-odors were incident to the proper conduct of minative features. Davidson v. Isham, 9 N. defendant's business. Therefore the plainJ. Eq. 189 (Williamson, Ch., 1852); Wolcott tiff could not recover. But it is apparent v. Melick, 11 N. J. Eq. 207, 66 Am. Dec. 790 that, if the odors and noises existed as tes(Williamson, Ch., 1856); Ross v. Butler, 19 tified to by the plaintiff and his witnesses, N. J. Eq. 294, 302, 97 Am. Dec. 654 (Zabris- they diminished the enjoyment, habitableness, kie, Ch., 1868); Cleveland v. Citizens' Gas and value of his dwelling, and so injured Light Co., 20 N. J. Eq. 201, 205 (Zabriskie, his property. The request was properly reCh., 1869); Demarest v. Hardman, 34 N. J. fused. All the requests to charge which are Eq. 470 (Van Fleet, V. C., 1881); Cronin v. grounded upon. a distinction between perBloemecke, 58 N. J. Eq. 313, 43 Atl. 605 (Em-sonal discomfort and injury to plaintiff's ery, V. C., 1899); Gilbough v. West Side habitation were based upon a difference Amusement Co., 64 N. J. Eq. 31, 53 Atl. 289 which in this case did not exist. Indeed no

comfort received by an owner of property
while residing therein would not afford a
ground of action." This case also reiterates
the well-settled principle which lies at the
foundation of all of this branch of the law,
and which has been heretofore stated, name-
ly, that the degree of personal discomfort is
the determinative feature, and, "in measur-
ing the degree,
all the surround-
ing circumstances must be taken into ac-
count in judging whether the degree is of
sufficient importance to confer a right of ac-
tion."

portion of the city. Under all of the circumstances of this case, I think that the complainants have proven a right requiring protection, and that the defendants have invaded that right so as to be restrained.

I will advise the issuance of a temporary injunction restraining the defendants from so operating the engine or any engine upon the premises in question as to cause noise of sufficient volume to penetrate the houses of the neighbors, and destroy the peace and comfort of those dwelling therein.

ARROWSMITH v. ARROWSMITH. (Court of Chancery of New Jersey. Jan. 7, 1909.)

1. DIVORCE (§ 99*) — DESERTION - ANSWER – SUFFICIENCY.

An answer to a bill for divorce for deser

tion, which gives specific instances of harsh treatment, and which alleges generally cruel treatment during a term of years, should characterize the treatment as extreme cruelty.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. § 99.*]

2. DIVORCE (§ 54*)-DESErtion-Defenses. guilty of numerous acts of cruelty towards his A husband who has for many years been wife, including one act of physical violence, thereby endangering the health of the wife, and rendering her life one of such extreme discomfort as to incapacitate her to discharge her duties, cannot, by establishing a new home and inviting his wife to live with him, obtain a divorce based on the wife's refusal to leave the home of

a son.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. § 54.*] 3. DIVORCE (§ 54*)-Grounds-Cruelty—De

FENSES.

This brings me to a consideration of the facts of the. case in hand. The only dispute which it may fairly be said the proofs disclose concerns the condition of the machinery in use; the complainant alleging that it is secondhand and defective, and the defendants denying this. There is practically no dispute of the complainants' testimony concerning the nature, extent, and effect of the noise created by the defendant Curley's operation of the engine and cable and the "boats." The testimony of numerous witnesses on behalf of the complainants, who all dwell in the neighborhood, is that from an early hour in the morning until 6 o'clock at night the noise of the engine and its operation practically precludes the possibility of conversing in the houses in the neighborhood when the windows of such houses are closed, and that the noise is such that the windows of the houses cannot be kept open. It seems to me clear, beyond possibility of successful refutation, that an occupant of a dwelling house in a strictly residential neighborhood, as this is, may be said to be deprived of the legitimate use of his property, or to have his property rights seriously invaded, if during all of the day so much noise penetrates his dwelling from the operation by a neighbor of machinery as to render it impossible for him to converse in or to use his premises for their customary purposes. I do not decide, because it is not necessary, that the defendant may not use these lots for the deposit of stone. I do not decide that a residential neighborhood is an improper place to store broken stone taken from excavations in other places. But it is important in the consideration to bear in mind that there are undoubtedly numerous places (where broken stone could be stored with the noise necessarily attendant on handling the same) which are so far removed from residences as not to seriously interfere with their use by their occupants. The fact that the use of these lots for this purpose is temporary does not aid the defendants at all, but rather makes in favor of the complainants. If the defendant's purpose is, as he stated, merely to use these lots temporarily for this purpose, it would seem as if his duty under the circumstances was to seek some other place for such tem- WALKER, V. C. The parties to this suit porary use than a thickly settled residential | were married in 1872, and lived together on a

A husband who has for many years been guilty of numerous acts of cruelty towards his wife, endangering her health and rendering her life one of extreme discomfort, cannot by establishing a new home, and inviting his wife to live with him, defeat the right of the wife refusing to live with him to obtain a divorce on the ground of his cruelty.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. § 54.*]

4. DIVORCE (§ 101*) - SUIT FOR DIVORCE — CROSS-BILL.

Where, in a suit by a husband for divorce on the ground of desertion, the wife alleged in the answer such acts of misconduct as would justify a divorce and the evidence established the answer, she could file a cross-bill praying for

the same.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. § 101.*]

Peti

Petition for divorce by William Arrow. smith against Susan B. Arrowsmith. tion dismissed, with leave to defendant to file a cross-bill for divorce from bed and

board.

John P. Lloyd and Alan H. Strong, for petitioner. Charles T. Cowenhoven, for defendant.