author: Green, V. C.

text:
    Joseph E. Tynan v. Richard Warren et ux.
    1. The rule that a court of equity will enforce a trust, created by parol, in ;a suit brought for that purpose,'where the answer to the bill alleging the trust/ admits the same, but does not claim the benefit of the statute of frauds, will be ■applied, although the answer is in no way signed by the defendant.
    2. A, holding the legal title to a tract of land, but, as to a moiety thereof, ■in trust for B, cannot acquire B’s equitable interest therein through a parol agreement that B would relinquish the same on A’s paying certain claims against both.
    3. The rule that laches in bringing suit will deprive one of his remedy is not applied, unless such neglect has so prejudiced the other party, by loss of ■testimony, or means of proof, or changed relations, that it would be unjust to mow permit him to enforce his rights.
    •On bill, answer, replication and proofs.

      Mr. George S. Hilton, for the complainant.

      Mr. Michael Dunn, for the defendants.
   Green, V. C.

This bill is to establish a trust.

The complainant Tynan and defendant Warren were sureties on ,an administrator’s bond, dated February 8th, 1876, in the penalty of $16,000, filed in the Passaic county surrogate’s office.

On a rumor that the administrators were mismanaging the-estate, one o-f them, on May 6th, 1876, assigned to Tynan and Warren as indemnity in respect of their liability, all his interest: in a mortgage of $7,000, on property in Paterson, which - mortgage, at the time of such assignment, was held by the PassaicCounty Savings Bank as collateral for a note for $5,000, on which there was $3,400 due.

The mortgage was afterwards foreclosed by the savings bank and the property sold by the sheriff to Tynan and Warren on their bid of $3,400. The costs, interest and fees were paid by Tynan and Warren, each advancing one-half thereof. They then agreed to raise $3,500 by mortgage on the property, to pay the debt of the savings bank and other expenses.

The bill alleges that then it was agreed between Tynan and Warren that the deed should be made by the sheriff to Warren that Warren should execute a new bond and mortgage for such loan, pay the amount due the savings bank out of the loan, and apply the remainder thereof to the payment of other claims, including past-due taxes, expenses &c., “ and to hold the premises-for the joint and equal benefit of himself and complainant, until the reason for the arrangement stated should cease to exist.”

The answer of defendant admits that the property was sold by the sheriff to Tynan and Warren ; that each advanced one-half of the amount paid on the sale; that it was arranged between-complainant and defendant that they should procure a loan of $3,500 from the Paterson Savings Institution on the property to-pay the balance of the purchase-money and other expenses; that the deed was made out in defendant’s name at the suggestion of the complainant, and that it was agreed that he, the defendant,

“should hold the title to said land in trust for the equal benefit of himself and the complainant, subject to the said mortgage for S3,500, * * * until" a purchaser could be found for it.”

The defendant thus does not deny the allegation of the bill that the title was put in his name, to be held by him in trust for himself and complainant, but expressly admits that he did agree to take the title and hold the same in trust, for the equal benefit. of himself and complainant, until a purchaser could be found for it.

This is an express trust. It is not one raised by law from the circumstances of the case, but created, and its terms and conditions fixed, by the express agreement of the parties. 1 Perry Trusts § 73. It was not necessary that it be created by writing(Jamison v. Miller, 12 C. E. Gr. 586), but resting in parol, the complainant, under the statute of frauds, could not enforce it by suit if properly contested, and this is all that is meant by the quotation from Baldwin v. Campfield, 4 Halst. Ch. 891 (at p. 292), “an express trust must be in writing.” If a trust has-been created by and rests in parol, and the defendant either does not answer (Smith v. Howell, 3 Stock. 349), or if, by his answer,, denies the trust, it cannot be enforced against him, for it cannot be legally proved (Walker v. Hill, 6 C. E. Gr. 191, affirmed 7 C. E. Gr. 513; Wakeman v. Dodd, 12 C. E. Gr. 564); or, if he-admits the creation of the trust, he may successfully invoke the protection of the statute. This was at one time doubted, but is-now indisputably established. Van Dyne v. Vreeland, 3 Stock. 370; S. C., 1 Beas. 143; Dean v. Dean, 1 Stock. 425; Ashmore v. Evans, 3 Stock. 151; 1 Perry Trusts § 85. On the-other hand, the rule that if the defendant, by his answer, admits-the alleged trust and does not claim the benefit of the statute, equity will enforce the trust, if continuing (Flagg v. Mann, 2 Sumn. 486), is recognized as long ago as Hampton v. Spencer, 2 Vern. 288; Nab v. Nab, 10 Mod. 404; Ryall v. Ryall, 1 Atk. 59; Cottington v. Fletcher, 2 Atk. 155.

When this last rule originated, the answer of the defendant was taken under oath, and was required to be signed by the defendant. This latter requirement was so often disregarded that Lord Hardwicke (April 27th, 1748) promulgated a rule of court, making it obligatory. 2 Atk. 290; Hind. Pr. 199; Dan. Ch. Pr. 745.

The practice of the defendant signing the answer has not obtained in this state, the signature of counsel only being required (Dickerson v. Hodges, 16 Stew. Eq. 45), but the signature of the defendant was, of course, subscribed to the affidavit, and in this-way became part of the answer when it was verified.. The fact that bills now generally waive answer under oath, results in the answers being rarely signed in ány way by the defendant, and the answer filed in this suit is not in any place signed by. the defendant.

Does this fact take the case out of the rule stated, that where the bill charges a trust, and the answer admits it, it will be enforced; if subsisting, unless the defendant claims the benefit of the statute? The solution of this question must depend largely on the reason of the rule.

In ascertaining this reason we may obtain much light from cases brought for the specific performance of parol agreements for the sale of lands, of which there are very many (see Pom. Spec. Perf. § 140 note 6), for the terms of the statute of frauds with reference to trusts and agreements for the sale of lands, ^re, so.far as the requirement of a writing signed by the party is concerned, so similar that the application of the statute and the reasoning with reference thereto, in one case, must undoubtedly apply to the other, a conclusion recognized in Story Eq. PL § 76, in Mitf. Eq. Pl. 267, 268; Dean v. Dean, supra; Brown St. F. § 113. .Our statute relating to trusts (Rev. p. § 3) is an almost exact copy of 29 Car. II. c. 3 §§ 7, 8, and the fifth section of our act relating to agreements for the sale of lands is taken from section 4 of the English act (Appendix to Brown St. F).

Professor Pomeroy,’speaking of the enforcement, by decree of the court, of a contract within the statute of frauds when a verbal contract is .alleged by the plaintiff, and the defendant admits it' in his answer, without, at the same time, interposing the statute of frauds as a defence in his pleadings (Pom. Spec. Perf. § 140), says :

“Although this rule is firmly established, the oases and text-writers are not agreed, as to the reasons for its, adoption. Three principal ones Have been suggested — First. It has been said that such an admission by the- defendant obviates all the dangers which the statute was intended to prevent; that the object of the legislature was to remove all the opportunity and occasioh for'frauds and perjuries which are furnished by mere parol testimony, and the written statements by both the parties in their pleadings, as to the terms of their agreement, leave no possible room for any fraud or perjury. Secondly,. It has been suggested, and especially by Judge Story, that the answer signed by the defendant, or by his attorney, and admitting the contract as set forth by the plaintiff, technically and literally satisfies the very demands of the statute, since it is a note or memorandum in writing signed by the party to be charged, or by his agent duly authorized. Thirdly. It is argued that an admission of the contract, without at the same time setting up its invalidity, or the impossibility of enforcing it resulting from the statute, is a deliberate and formal waiver of all benefit which the defendant might have derived from the legislation — this benefit being personal, and therefore capable of being waived. Both the first and second of these reasons are open to an objection fatal to each of them. If sound, they should apply with equal force to the case where the defendant sets up and relies on the statute after admitting the contract, and to that where he does not set up the statute. If an admission of the agreement obviates the dangers of perjury, or constitutes itself a memorandum, this would be none the less true if defendant should add to such admission a plea of the statute as a defence. The rule cannot be accounted for on either of these grounds; its explanation must be found in the third reason, which alone is consistent with either doctrine.”

Story Eq. Pl. § 763 states the ground as being that the defendant has, by not claiming the benefit of the statute, thereby renounced its benefit; although in Story Eq. Jur. § 755, he suggests that the answer being signed by the defendant is a compliance with the statute.

Chancellor Vroom, in Hutchinson v. Tindall, 2 Gr. Ch. 357, in which he refused to follow Hampton v. Spencer, 2 Vern. 288, in that it executed a trust set up in the answer, although not charged in the bill, says: “lam inclined to believe that, if the present complainant had filed a bill claiming this deed to be a deed of trust, and praying that it might be so decreed according to the original intention of the parties, the answer of the defendant admitting the trust would have been good evidence of it. It would have amounted to a sufficient declaration of the trust.”

Chancellor Williamson, while he does say, in Dean v. Dean, 1 Stock. 425 (at pp. 427, 428), that the reason why the court will execute a parol trust admitted by the answer, is because it takes the answer as the writing by which the trust, in the language of the statute, is manifested and proved ” (at p. 429), says: “ It appears to me that the answer contains such an admission of the trust alleged in the bill, that the court can exe•cute it without the assistance of parol testimony; and that, therefore, the defendants, not having insisted on the statute for their protection, they must be considered as having renounced the benefit of it.”

In Jamison v. Miller, supra, some significance would seem to be attached to the fact that the answer is signed by the defendant.

As the result of authorities cited, Perry Trusts § 81/. says:

'“In all cases, however, the defendant may answer, and if, in his answer, he •confesses the trust without insisting upon a statute of frauds, he will be held to have waived the benefit of the statute, and his answer may be used as a written declaration and proof of the trust, on the ground that the plaintiff is not called upon to introduce evidence, and the trust appears upon the written answer before the court."

Hill Trust, p. 95 note 1. If defendant, by answer, admits the parol trust, but does not set up the statute of frauds, he will be seemed to have waived it; so, also,.Tiff. & B. Trusts and Trustees p. 15 and 8 Am. & Eng. Encycl. L. p. 747, tit. “Statute of Frauds.” 2 Reed on Statute of Frauds p. 529 says:

“Not pleading the statute waives it, not because the answer is such a memorandum as the statute requires, but because the latter is waived by not ’being set up.”

In Whiting v. Gould, 2 Wis. 552 (at p. 594), Judge Crawford says: “ On this subject, from an examination of the authorities, we believe the rule may be stated thus : If a defendant admits an agreement or trust, but insists on the statute of frauds as a •defence, the court will not permit his admission to override the positive provision of law, unless the statute is sought to be made a cover for fraud, and will not decree against the defendant ; and if, after admitting the agreement or trust, he does not rely, by plea or answer, on the statute, a decree may be rendered against him, because he may be deemed to have renounced the benefit of the statute, and no objection to the nature of the proof cau be offered, because the agreement or trust is admitted, and no proof of any kind is required.”

The rationale of the rule would seem to be this: The statute offers protection to a defendant against a parol trust or agreement for the sale of land, by providing a rule of evidence which prevents its proof, if he denies the alleged trust or agreement, or if, admitting the one or the other, he claims the benefit of the statute; if, however, he admits the trust or agreement, but does not vouch the statute, no rule of evidence is brought into operation, as there is no issue on that point to be tried, and the benefit of the statute is waived. In such ease, the court proceeds to ■enforce the trust or agreement if it can establish the one or the other from the admissions made by the answer -without report to parol proof to ascertain its terms and conditions.

In this point of view, the fact that the answer is in no way ■sigued by the defendant, does not prevent the application of the rule, and the defendant, having by his answer admitted the trust, and set out its terms, conditions and limitations, and not having ■claimed the benefit of the statute, the same being an express trust with reference to the land, must be held to its terms and conditions/unless he has been in some way effectively relieved from the obligation of the trust.

The defendant claims by his answer that the trust is no longer j subsisting because the complainant relinquished his interest in i the property in consideration of the defendant’s assumption of 1 certain claims. These allegations of the answer are put in issue by a general replication, and the parties as witnesses tell different stories. It is, however, admitted that the agreement, whatever it was, was a verbal one — could it, if it was even as stated in the answer, have the effect defendant claims for it? It being admitted that the defendant took the title to the whole property on an agreement to hold it for the joint benefit of himself and complainant, he was the legal owner, subject, as to an undivided half, to a trust in favor of the complainant. As to this half, then, there was a legal estate in the defendant and an equitable estate in the complainant. The latter might not be able to enforce it, •as has been shown, and this was probably what Mr. Williams meant by saying no papers were necessary. But defendant could ’ not acquire complainant’s equitable interest, as he claims to have :l( ■done by his answer, through a parol agreement. This would be j a transfer of a trust estate, and section 4 of the statute of frauds | provides that

all grants and assignments of any trust or confidence shall be in writing signed by the party granting or assigning the same, or by his or her last will in writing, or else shall be utterly void and of no effect.”

This is substantially section 9 of the English act. Chief-Justice-Marshall, in Hughes v. Moore, 7 Cr. 176 (at p. 191), says : The court can perceive no distinction between the sale of land to-which a man has only an equitable title, and a sale of land to which he has a legal title. They are equally within the-statute.”

In Darling v. Butler, 45 Fed. Rep. 332, plaintiff had executed and delivered to defendant a deed of certain land, but it was intended by both parties that the deed should not take effect until the defendant made a sale of the land for the plaintiff, it was held the legal title passed, but the equitable title still remained in the plaintiff and a subsequent oral sale thereof to the-defendant was within the statute of frauds and void, and in an action for the balance of the purchase-money a demurrer to the-complaint was properly sustained. Mr. Justice Wallace (at p. 335) says: “ Nevertheless, the equitable interest could not be transferred by parol; and without a new deed, or a formal assignment or release of the plaintiff’s equitable title, the plaintiff could acquire no better title to the lands than he had before (viz., the legal title subject to the others’ equitable title). An oral agreement for the transfer of an equitable interest in lands is as-inoperative under the statute of frauds as one for the transfer of a legal title.” Dougherty v. Catlett, 129 Ill. 431; Clitus v. Langford (Tex.), 24 S. W. Rep. 325; Richards v. Richards, 9 Gray 313; Smith v. Burnham, 3 Sumn. 435; West v. Randall, 2 Mas. 203.

It is unnecessary, therefore, to ascertain which version of thisparol agreement is correct, as it, whatever it was, was inoperative-to transfer complainant’s equitable title to defendant.

The defendant next claims that complainant has forfeited any rights he may have had in equity by his delay in prosecuting the same. Mr. Justice Story, in Oliver v. Platt, 3 How. 333, thus expresses a well-established rule; “ The mere lapse of time constitutes of itself no bar to the enforcement of a subsisting trust,”' which, of course, refers to express trusts.

This trust- was recognized as an active subsisting one at the time of the alleged agreement at Mr. Williams’ office. If the acts of the defendant since that time amounted to a renunciation of the trust, the rule that this court acts by analogy to the statute of limitations, does not apply because the statutory period has not elapsed, it being only twelve years prior to the filing of the bill.

This defence, if available, must come under the rule either of acquiescence or laches. I do not see how the first applies. The distinction between the two is pointed out in Hall v. Otterson, 7 Dick. Ch. Rep. 522. The complainant does not now object to the acts of defendant in which he has acquiesced; he does not challenge his collecting the rents or placing a mortgage on the property. The rule as to laches is well defined and is clearly stated in Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 384, and in McCartin v. Traphagen, 16 Stew. Eq. 323, and in the citations in Hall v. Otterson, supra.

I do not understand that mere delay in bringing a suit will deprive a party of his remedy, unless such neglect has so prejudiced the other party by loss of testimony or means of proof, or changed relations that it would be unjust to now permit him to exercise his right.

Applying this test, how has the defendant been injured by delay? There is no substantial dispute as to the terms of the trust. Some witnesses are dead, but if alive, their testimony could only relate to the oral agreement as to the relinquishment of the equitable interest, which would be of no benefit. Defendant has collected the rents and paid the expenses, and there is nothing to prevent his accounting — he still holds the title, so that the trust can be executed, and if he had sold the property, he presumably would have the price or what represented it. Of course, the interests of the mortgagee cannot be affected. I see no reason why, under the authorities, the doctrine of laches should be applied.

I-will advise a decree for complainant in accordance with the prayer of the bill.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    Philip N. Jackson v. The Mayor and Common Council of the City of Newark.
    1. On a bill filed by a taxpayer for injunction to restrain the city of Newark from constructing a disinfecting station and sterilizing plant on lands owned by the city in an adjoining township, and from awarding any contract for ■such construction — Held, that the complainant’s remedy against the city is by certiorari; and inasmuch as the pecuniary interest of the complainant as a taxpayer — the sole basis of his equitable standing — is insignificant in comparison with the protection of the health of the city, a court of equity should leave him to his legal remedy.
    2. The supreme court, in exercising its jurisdiction, acts on rules and principles, equitable as well as legal, specially applicable to the review of municipal proceedings and adopted and enforced with special reference to a preservation of the rights of municipalities as well as of taxpayers.
    .3. Where the object of the writ of certiorari is to review municipal action, «specially if that action is said to be beyond the corporate power, the writ may issue while yet the final step that completes the injury is but threatened.
    On bill for injunction and demurrer.

      Mr. J. Frank Fort, for the complainant.

      Mr. Sherrerd Depue, for the demurrant.
   Emery, V. C.

The complainant in this case files a bill to restrain the city of Newark from constructing a disinfecting station and sterilizing plant on lands owned by the city in the township of Clinton, which' adjoins the city, and from awarding any contract for such construction until the further order of this court. No further relief of any kind is prayed for in the bill. The defendant demurs for want of equity, and because the complainant has a remedy at law. The complainant’s bill bases his right to this equitable relief solely on his status as a taxpayer of the city, and the proceedings of the city authorities, which, as he claims, invade his rights, are stated in the bill to be the purchase of lands outside the city limits for the purpose of making such erections, without express statutory authority, and also the proceedings of the public buildings committee of the common council in'adopting plans for these erections upon the lands and advertising for bids for the same.

The bill alleges that the’ common council, by resolution dated .August 17th, 1894, created a fund known as the special building .-account, to be used for the purchase of land and the erection of •buildings for the care and abatement of infectious diseases, but that the resolution gave no further directions in reference to the -selection or purchase of the land. The land was selected under -•the authority of the public buildings committee, August 31st, .1894, on the recommendation of the board of health, and the buildings committee selected a tract containing twenty-four acres in the township of Clinton, Essex county. By resolution of this committee of the same date, the chairman of the committee, ■the chairman of the board of health committee, the mayor of ;the city, and the city counsel were empowered to take all neces-sary steps for the purchase of the property selected and its conveyance to the city. In pursuance of this action of the public •buildings committee, the city received a deed for these lands on September 10th, 1894, for the consideration of $15,000, which ■ deed was recorded on September 11th, 1894. The public buildings committee, on November 23d, 1894, commenced consideration of the plans for the disinfecting station and sterilizing .plant to be erected on the lands, and the complainant’s bill was filed -on December 11th, 1894.

The bill challenges the legality of the purchase of the land -outside of the city for the purposes mentioned, and also challenges the acts of the building committee in proceeding to erect buildings thereon, as beyond the authority of the resolution of the common council, which did not expressly authorize the pur•chase of lands outside of the city limits.

Upon the filing of the bill, an application for a preliminary ■injunction was made to the late Yice-Chancellor Van Fleet upon bill and affidavits, and the application was heard by him upon these and the answering affidavits, filed by the defendant. The preliminary injunction was denied, one ground being that for the wrong complained of, the complainant’s remedy for relief against the city was by certiorari, and inasmuch as the pecuniary interest of the complainant as a taxpayer, the sole basis of his equitable standing, was insignificant in comparison with the protection of the health of the city, a court of equity would leave him to his legal remedy. The opinion on this ground reaches to the whole equity of the complainant’s bill, and as the question was directly involved in the application, I consider myself bound by this decision as to the complainant’s rights under this bill. Moreover, in this decision of the learned vice-chancellor, I fully concur-The jurisdiction of the supreme court, on the application of a taxpayer, to review the proceedings of municipal officers, is sowed established and so constantly exercised that it has passed beyond the necessity of citation of authority to support it. In-exercising its jurisdiction, it has long since established and acted on a series of rules and principles, equitable as well as legal,, specially applicable to the review of municipal proceedings, and adopted and enforced with special reference to a preservation of' the rights of municipalities as well as of taxpayers. Its action-on such review by certiorari is in the name of the state, and’ reaches directly to the proceedings themselves, which it adjudicates upon by a judgment validating them or making them void. No such result could be reached in equity by a decree on the personal bill of an individual complainant. This general rule as to the review of municipal proceedings was not denied at the argument, but it was contended that under the supreme court practice, only the resolutions of the common council could be taken up, and not the proceedings of the buildings committee-after the resolution, which were claimed to be merely ministerial.. It was said that no fault could be found with the resolutions of the common council, which did not appear to contemplate the purchase of land beyond the city limits, but that the real complaint was the action of the building committee in assuming that the resolution of the common council authorized such purchase and in proceeding to act upon this construction. It was also ■suggested that this view of the complainant’s case was not urged upon the motion for preliminary injunction, and should now be ■considered and weighed on the hearing of the demurrer.

The bill does expressly attack the validity of the purchase made by the city, and the authority of the common council to make it, but I have considered the suggestion as to the review of the proceedings of the buildings committee by the supreme court, and, in my judgment, there is no support for the contention that the action of this committee, when it proceeds as far as an actual contract, binding the city, or perhaps before (see State, Hoxey, pros., v. Paterson, 10 Vr. 489, 493), may not be subject to review upon certiorari, if the supreme court, under its rules which govern such application, chooses to allow the writ to issue. The contracts of municipal bodies are constantly made the subject of review under certiorari proceedings, and in the latest case, Brady v. City of Bayonne, 30 Atl. Rep. 968, not only was the resolution of a municipality taken up by certiorari, but also a contract professedly made under authority of the resolution, •and the contract was attacked upon grounds which, if sustained, would have set aside the contract while allowing the resolution to stand.

In my judgment there is no reason for questioning the correctness or the application of the principle declared as the law in this case, by the late vice-chancellor, that the complainant’s ■remedy, if it exist at all, must be sought at law, and I shall therefore advise that the demurrer be sustained, with costs.


text:
    George C. Ludlow, receiver, et al. v. Woodbridge Strong et al.
    1. A stakeholder or custodian of a fund who makes a contract with a claimant to the fund for a payment to the claimant of a portion thereof, in consideration of retaining the balance for himself, cannot, in a suit on the contract and in the absence of express provisions therein, require the complainant ta-bring in other claimants t,o the fund or require an adjudication upon the rights, of these claimants, or other possible claimants to the fund, as precedent to a. right of recovery under the contract.
    2. The contract in this case held not to contain such provisions for adjudicating upon the rights of other claimants to the fund.
    S. The stakeholder cannot impose additional terms or conditions by his-agreement with another claimant to the fund, made subsequent to the contract, and without the consent of the claimant with whom he has contracted.
    On final hearing on bill, answer of defendants Strong & Sons,, replication and decree pro eonfesso against defendant Skirm,. receiver.

      Mr. John 8. Voorhees, for the complainants.

      Mr. Alan H. Strong, for the defendants Strong & Sons.
   Emery, V. C.

The bill in this case is filed to compel the performance of am agreement in writing made by Strong & Sons, three of the defendants, with the People’s National Bank of New Brunswick, one of the complainants, dated May 27th, 1890, and relating to-the assignment of a judgment owned by the bank to Strong &. Sons, for certain uses and purposes specified in the agreement.. The general purpose of the agreement was the application of a sum of money ($526.38) in Strong & Sons’ hands to the payment of the judgment held by the bank, and to carry out this-purpose, the agreement provided, among other things, that the-bank should assign the judgment to Strong & Sons, whereupon the latter were to apply the moneys on account of the judgment and then at once commence supplementary proceedings on the judgment to make the application “ legal and safe; ” and when this was done the agreement provided that Strong & Sons would reassign the judgment to the bank and pay them sixty per cent, of the moneys, retaining forty per cent, for their compensation.

The bank now files this bill to obtain the payment of the money and the reassignment of the judgment, joining with it, as complainant, the receiver who was appointed under the supplementary proceedings on the judgment taken on the application of Strong & Sons, who are still the holders of the'legal title to the judgment.

Strong & Sons had received this money on April 15th, 1890,. as the attorneys of one Travers and his judgment creditor, and as to the claims of these persons to the money, the agreement expressly provided that, in order to carry out the agreement between the bank and Strong & Sons, “it will be proper to-secure an abandonment of said claim of John Travers and his judgment creditor.” This abandonment was procured, all parties being satisfied that Travers and his creditor had no right to the money. The money had been received by Strong & Sons from one Daly, as the judgment debtor primarily liable to John Taylor (the bank’s debtor), upon judgments which Taylor had obtained in 1880 against Daly as primarily liable and Travers as secondarily liable. Travers, supposing that these judgments had been paid by him through sales of his property on execution, employed Strong & Sons to collect the amount from Daly by proceedings under the Practice act, section 36, for obtaining the benefit of the judgments as against Daly. Daly, the person primarily liable to Taylor, who did not deny his liability on the judgments, paid the amount of the judgments to Strong & Sons, as attorneys of Travers and his assignee, and the proceedings on behalf of Travers were not prosecuted. While still holding the money in their hands, Strong & Sons ascertained that Travers was mistaken in supposing that the judgments had been paid by the sale of his lands.

Taylor, the judgment creditor of Daly and Travers, had become embarrassed since the recovery of his judgments against Daly, and the fund in Strong & Sons’ hands was liable to be made the subject of claims by Taylor’s judgment creditors. So far as appears, no claims had actually been made by any persons to the fund up to the date of the agreement in suit. In this posture of affairs and on August 28th, 1890, Strong & Sons made with the bank this agreement now in question. This agreement recited that Strong & Sons had in hand $526.48, as the proceeds of two judgments recovered many years previous by Taylor against Travers and Daly, and that it was collected by them for Travers, on his claim that he, as secondarily liable, was entitled under the statute to collect this money from Daly, who was primarily liable, and that Travers was mistaken, so that this money would appear to belong to Taylor and to be liable to be taken by his creditors. The agreement then provided that the bank should assign their judgment against Taylor to Strong & Sons, and thereupon Strong & Sons should apply said moneys on account of the judgment; “that supplementary proceedings be then at once commenced against John Taylor by the counsel of the bank to make said proceedings legal and safe,” and that when this is done,

“said Strong & Sons will reassign said judgment to the bank and pay said bank sixty per cent, of said moneys, retaining forty per cent, for their compensation, the judgment being paid to the extent of the whole amount realized against Taylor.”

It was then stated in the agreement “ that to accomplish this it will be proper to secure an abandonment of said claim of said John Travers and his judgment creditor.” No specific mention of Daly, who paid the money to Strong, or of Taylor’s creditors, or any other claimants than Travers and his creditors, to the fund, is made in the agreement, but, in reference to other claims, a provision is next added in the agreement,

“that if at any time said money shall be required by any party having a superior right thereto, said bank will return so much thereof as it shall have received, to said Strong & Sons, with legal interest thereon from the time said bank shall receive said money,”

and the agreement concludes with the provision that in case said proceedings to secure said moneys in the hands of said Strong & Sons shall be unsuccessful, said Strong & Sons will at •once reassign said judgment to said bank.”

The assignment of the judgment by the bank to Strong & Sons was executed and delivered simultaneously with the agreement, and Strong & Sons, by the agreement itself, acknowledged the receipt of the assignment of the judgment for the uses and purposes mentioned in the agreement.

About the same time, Travers and his assignee (Ellen Mitchell), by writing dated May 27th, 1890 (one day previous to the date •of the agreement), formally renounced their right to the money in Strong & Sons’ hands, and consented that they might appropriate it as they deemed might be legal and proper.

Immediately after, and on August 29th, 1890, the defendants, 'Strong & Sons, as the assignees and judgment creditors of John Taylor, under the bank’s judgment, presented a petition under the Supplementary Proceedings act (John S. Voorhees, Esq., the counsel of the bank, being named as attorney), and procured ■an order of that date, for discovery &c., and an injunction order restraining Daly from paying the judgments against him to Taylor or any other person, and also restraining the petitioners ■(Strong & Sons) from paying the money in their hands to Daly. On this petition, and after the examination of witnesses, an order was made by Chief-Justice Beasley, on May 17th, 1892, appointing the complainant George C. Ludlow the receiver of the property and things in action of the defendants John Taylor and William Brandt, belonging to or held in trust for them or ■either of them, on the 6th day of October, 1888, being the date ■of the issuing of the execution in the cause. The complainants, ■claiming that by this appointment of the receiver all the conditions which Strong & Sons were entitled to require under the contract, had been fulfilled, demanded of Strong & Sons the payment of the amount due to them under the contract. Strong •& Sons demanded of the bank indemnity against the claim of ■one Skirm, who had, in 1888, been also appointed a receiver of 'Taylor, upon proceedings taken by creditors of Taylor on other judgments (one prior and one subsequent to the bank’s judgment), and who had, in October, 1890, notified Strong & Sons-that he claimed the money in their hands as such receiver.. There is no evidence that, at the time of the making of this-agreement, either Strong & Sons or the bank knew of Skirm’sappointment as receiver, and, upon receiving this notice, Strong & Sons informed the bank thereof. The bank were willing to-give this indemnity against Skirm’s ■ claim on receiving the money, but on all the parties (including the receiver) meeting to-adjust the matter, a further demand was made by Strong & Sons, as a condition precedent to their payment of the money to the-receiver, that the receiver should agree to cancel the judgment obtained against Daly and Travers. The receiver declined to accept the money on this condition, and Strong & Sons then refused to pay over any of the money in their hands, either to-the receiver or complainant, and still hold the money.

They based this refusal upon an agreement which they had, made with Daly subsequent to the making of the contract with-the bank, by which, as they claim, they agreed with Daly that the judgment should be canceled, and received Daly’s consent: to the use of the money on that express condition. This agreement of Daly’s, which is attached to the bill, is not dated, but it is proved to have been made subsequent to the agreement with the bank, and the bank does not appear to have had any notice-of it before its execution.

This agreement, signed by Daly, recites the collection of the-money by Strong & Sons from Daly and the circumstances of the mistake of Travers, and then further proceeds:

‘ ‘ Whereas, it was and is my wish and intention that said moneys be appropri- ■ ated to the payment of said judgments [against Daly and Travers], to whomsoever the same may be lawfully owing or payable, now, therefore, I do hereby-request the said W. Strong & Sons to pay over the said money to the said John Taylor, or to apply the same as his moneys to their judgment against said Taylor, if they shall lawfully be entitled so to do, in the same manner as-though said payment had been originally made for the benefit of said John Taylor, the said John Taylor having consented that the money so placed in the hands of W. Strong & Sons shall be applied towards the payment of the-said judgment, and provided the said judgments against John Travers and me-shall be canceled of record.”

Daly does not appear to have made any demand upon Strong & Sons to cancel their judgment, or for a return of the money to him by reason of the failure to cancel it.

The complainants, the bank and the receiver having brought suit upon the contract, made Skirm as receiver a party defendant, and took a decree pro cor/esso against him, but did not makeDaly a defendant, nor the parties whom Skirm represented.

The defendants, by answer and at the hearing, claim that in this suit on this contract, the court should adjudicate upon the-respective claims of Skirm, receiver, and of Daly to the money that no decree should be given in the absence of Daly (the objection of his non-joinder being expressly raised in the answer),, and that they are entitled fairly to hold the money as against the complainants, until the adjudication of a competent court (made-in a suit wherein all parties interested in the application of said-money are made parties) that a payment of the moneys to the complainant would be a legal and safe payment. An objection was also raised to the jurisdiction of this court on the ground that if the suit is to be rested solely on the contract, it is an action for the payment of money, which should be prosecuted at law.

Upon the facts above stated, established by the admissions-in the pleadings and by the proofs, I reach the following conclusions:

First. This court has jurisdiction.

Part of the relief asked is the reassignment of the judgment, and the rights of all the parties under the contract could not be-justly or equitably settled, except in an action which the parties to the contract, as well as the receiver, are parties. As to the judgment, the agreement and the assignment of the judgment, constituted the defendants Strong & Sons trustees of the judgment, for the purposes and on the terms specified in the agreement, which trust is enforceable in equity.

Seoond. The rights of the bank and of Strong & Sons to the money in the hands of the latter, must be settled upon the Basis of the contract between them, and according to its terms. So-far as it relates to the appropriation of the money in Strong & Sons’ hands to the complainants’ judgment and the claims of any parties thereto, the legal aspect of the contract is substantially that of an agreement between a stakeholder or custodian of the fund on one side, and a claimant to the fund on the other, for a division of the fund between them on certain terms, mutually agreed on. There was nothing unlawful in the making of such contract under the circumstances here proved, but by making such contract, Strong & Sons deprived themselves of the status of independent stakeholders, who would have a right to have all conflicting claims to the money settled in an inter-pleader suit, and on the other hand, the bank, by this contract, gave up its right to claim all of the money in Strong & Sons’ hands.

Strong & Sons must therefore rely solely on the contract for their protection against other claims to the money. Their agreement with one claimant for an interest in the fund deprived them of any right to compel any other claimants to interplead, nor have they now, as against the complainant, the right to insist that, iu this suit, they shall practically have such interpleader and adjudication for their protection under the contract. Travers having relinquished his claim, as provided by the contract, no other claimant was a necessary party to this suit on the contract. •Skirm, however, having been made party defendant without objection, and decree pro confesso having gone against him, complainants and defendants are entitled to whatever benefit the decree in this suit may give them.

Third. The defendants were not entitled to require from the receiver as a condition precedent to the payment of the money an agreement on his part that he would cancel the judgment against Daly, for the following reasons :

(1) The cancellation of the judgment by the receiver personally was a matter which, if he chose, he could submit to the adjudication of the court which appointed him and to whose orders he is made subject by the statute. Rev. 394 § 26.

Strong & Sons, if bound to pay the receiver at all, were bound to pay him without conditions, and the agreement in this suit, the assignment of the judgment under it and their supplementary proceedings estop them from setting up as against the receiver or the bank, that they were not bound to pay or that the money was not held by them in trust for Taylor and payable by themas such.

(2) Strong & Sons had no right, without the bank’s consent, to enter into a contract with Daly, which would or might compel the bank to litigate Daly’s claim to the money in a suit under the contract against Strong & Sons, nor was it the intention of this contract that, as to any other claimants to the fund than Travers and his creditor, Strong & Sons should have any adjudication of their rights in an action on the contract. The express provision in the contract for repayment of the money in case it should afterwards be required of the Strongs by any person having a superior right thereto, covered both Skirm’s and Daly’s claim if either made any. It was the only provision of the contract covering that subject, and its express provisions on this subject could not afterwards be extended without the consent of both parties.

The contention of defendants that the provision of the contract that “ supplementary proceedings be taken to make said proceedings legal and safe,” meant that the money should not be paid over unless the proceedings were legal and safe,” and that, therefore, in order to recover, the bank must, in a suit on the contract, bring in everybody who has made or may make a claim to the money, and that they are not entitled to any money until such adjudication that the payment to the complainant is legal and safe, seems to me to subvert the general intention of the contract by a phrase in it which was a mere statement of the-parties as to their object in taking the supplementary proceedings- and their opinion of its effect. This phrase has a full and complete effect by such interpretation of its meaning, and thus construed allows the contract to stand.

Equally without foundation is the claim that the supplementary proceedings have not been successful ” in securing the money in Strong & Sons’ hands under the last clause of the contract-. The money was secured by these proceedings to the extent the parties intended them to be used for that purpose, and they •did not intend, by the use of these words, to make the bank’s right of recovery under the contract, depend on the decision of a ■court as to the success of the proceedings in establishing the right ■of Strong & Sons to the money against other claimants.

Fourth. The defendants, under the terms of the contract, are liable to pay to the complainant bank sixty per cent, of the moneys in their hands and to reassign the judgment to the bank.

Fifth. The payment to the bank must be made through the receiver, who is entitled to receive from Strong & Sons the whole amount in their hands, with interest from the date of the order for injunction on Strong & Sons’ application in the supplementary proceedings. As against Strong & Sons, the receiver is entitled to interest from this date, and Taylor is entitled to the credit of this amount on the judgment of the bank. After settling his account with the court of his appointment, and deducting his fees, he will pay to Strong & Sons forty per cent, of the principal sum received by him from them with interest received by him on the whole principal sum to June 2d, 1892, the ■date when Strong & Sons refused to pay unless the judgment was canceled and interest on their forty per cent, from that date. Up to that time, Strong & Sons were entitled to act on the belief that the matter would be adjusted on the basis of the payment of the original amount in their hands, and as between them and the bank should not be charged with interest before that date. The balance the receiver will pay to the bank.

The costs of the complainant must be paid by Strong & Sons.


text:
    Washington Irving Adams v. Stephen W. Carey et ux. et al.
    Covenants relating to the management and sale of real estate contained in a declaration of trust, which was signed only by the trustee, cannot, in case of resulting trusts, be considered as covenants or limitations of their estates, •on the part of the other persons for whose benefit the trusts are declared, nor ■does their acceptance of the declaration of trust in such cases dispense with the necessity of their signatures under the statute of frauds, when the declaration is claimed to limit, or give an interest in, their equitable estates, "which arose independently of the declaration of trust.
    On bill for partition. Hearing on bill and answer.

      Mr. Robert M. Boyd, for the complainant.

      Mr. Edwin B. Goodell, for the defendant Carey.
   Emery, V. C.

The bill in this case is filed for partition, by a complainant ■claiming an equitable estate in lands, against the defendant holding the legal estate, who is also admitted to be the equitable owner •of one-half interest in the lands, and against the other owners of the equitable interests. The existence of these equitable interests •or estates in the lands is not denied. The case was heard on the bill and the answer of the defendant Carey, the holder of the legal title, and the question to be decided is as to the effect upon the •complainant’s equitable interests, of a declaration of trust signed by the defendant Carey at or shortly after the date when the legal title was conveyed to him. It appears from the bill and answer, and from the express statements in the declaration of trust, that the land was purchased by the complainant, Adams, the defendant Carey and two others, Samuel Parker and Calvin H. Carter, ■each contributing equally to the payment of purchase-money, and that the conveyance was made to Carey for the joint and ■equal benefit of all. Considering simply this payment by four persons and a conveyance to one of the four, there can be no doubt that each of the four persons became at once, upon the payment and conveyance, an equitable owner of one-fourth interest, and that Carey held the legal title in trust for all and subject to the right of each owner of an equitable interest to call upon the trustee for a conveyance of the legal title to his share and consequently to the right to file a bill for a partition.

The dispute in the case arises upon the question whether the subsequent provisions of Carey’s declaration of trust change these equitable rights aud to what extent. A copy of the declaration of trust is annexed to the bill. It is signed only by Carey, and; after declaring that the conveyance was made to Carey in trust to and for the joint and equal use and benefit of Adams, Parker,. Carter and himself, and that each one of these had paid or agreed to pay the one equal fourth part of the consideration money for the premises conveyed to Carey, Carey covenants in the following words:

“And that in consideration of the above and of the sum of one dollar to me in-hand paid by each of the said W. Irving Adams, Samuel M. Porter and Calvin H. Carter, the receipt whereof is hereby acknowledged, I do hereby covenant- and agree to and with them and each of them, their and his executors, administrators and assigns that I, the said Stephen W. Carey, my heirs and assigns shall and will hold, use and manage, lease, sell, dispose of and convey the said, land and premises and every part thereof in such manner, and upon such, terms, and for such prices or considerations as may be from time to time fixed and determined upon,by any three of the aforesaid owners (including myself)the executor or administrators of any deceased owner representing his one-fourth share or interest, the same to be fully expressed to me in writing, and. shall and will account for and pay over to each of said owners or his heirs, executors, administrators or assigns the equal one-fourth part of all moneys which may be received by me or my heirs, executors, administrators or assigns for or on account of the said land and premises, whether by lease, sale or otherwise after deducting and paying all taxes, assessments and other necessary-charges or expenses imposed upon or incurred by reason of the same.”

After the execution of the declaration of trust dated October 30th, 1875, and in 1876, Parker, one of the purchasers, died' intestate in the city of New York, leaving a widow and two-children, all made defendants (one of the children being an infant), but no executor or administrator of his estate has been-made defendant, nor does it appear whether any has been appointed in New York or in this state. Carter, another of the-four purchasers, died in 1887, intestate, and the interest he held has since been purchased by the defendant Carey, who is now,, therefore, the equitable owner of one-half interest in the lands.. One of the owners of the Parker interest being an infant, and incapable of consenting to or requesting sale, and Carey being now the owner of one-half interest, the complainant files his bill' for a partition of the lands, alleging that Carey refuses to sell or-to name the price at which he would sell, and that it is now impossible equitably to enforce or comply with the conditions of the covenant in the declaration of trust. The complainant claims that the conditions specified in the declaration of trust as to the sale by Carey are no bar to the bill for partition, for the reasons (1) that the situation of the equitable owners has been substantially changed by the act of the trustee himself, in acquiring the additional interest, so that he actually now controls the sale adversely to the other eestuis que trust; (2) because no limitation of time or provision for termination of Carey’s right of .sale was fixed, and it was therefore void as violating the rule of law against perpetuities and illegally suspending the power of alienation ; (3) because no consent can be given as to the Parker share because of the infancy of one of the owners.

The defendant Carey, by his answer, admitting the facts above stated as to the payments of the purchase-money and the conveyance in trust, denies complainant’s right to a partition, and claims to'hold a legal title to the lands, subject to be divested only in the manner expressed in his covenant in the declaration of trust. This claim is based upon the contention that Carey, under his covenant, holds the lands as trustee under an active trust, prescribed by the declaration of trust, and that the entire rights of all the parties in the lands are fixed by the declaration of trust, so that the trustee has the right to insist upon a sale in this manner only.

The case upon both sides has been fully and ably argued upon the construction and effect of the provisions of this covenant in the declaration of trust, and upon the theory that this declaration of trust, signed by Carey alone and in which this covenant on his part is inserted, was equivalent to a declaration or grant signed by the other equitable owners, limiting their estates in the lands to the language or terms of Carey’s covenant. But, as it seems to me, this would be giving to Carey’s sole declaration and covenant a force against the other owners to which it is not entitled. The equitable estate of the complainant in the land resulted not from Carey’s declaration of trust, but from his payment of a portion of the purchase-money, and arose as soon as ■the money was paid, or agreed to be paid, and the deed was •taken in Carey’s name. It would have existed had no contemporaneous or subsequent evidence of it been signed by Carey. Carey’s written declaration that the money of the complainant was so paid, and that he held the legal title in trust, was sufficient evidence against him of the facts from which complainant’s equitable estate arose, but these facts might have been proved •otherwise, and even by parol. How, then, can the addition of a covenant by Carey to this declaration of trust, declaring how he will hold the property, be a sufficient writing under the statute of frauds against the other owners, to impose conditions on their equitable estate in the lands ?

The declaration of trust was not made by Carey dealing solely with lands which were legally and equitably his, and which he was conveying to the complainant, in which case he might have attached whatever conditions he chose, provided they were legal, in the instrument which conveyed an equitable estate in them to others ; but he was here only furnishing written evidence for the other owners and against himself, of the facts showing that he ■held as trustee and admitting the trust. The other owners, in accepting this declaration of trust and acting on it, if they did so, would not, it seems to me, thereby make Carey’s covenant their covenant for all purposes or supply the defect of the writings required to be signed by them under the statute of frauds, in order to give any interest in or power over their equitable estates This is not the case where the grant of an estate is made by the deed creating it, subject to a condition or covenant to be performed by the grantee, and where the acceptance of the estate by the deed containing the covenant of the grantee, makes it his covenant, although he did not formally execute it. The covenant, therefore, in my view, was a covenant of Carey alone, and as against the other equitable owners cannot be made to operate as a covenant or grant against them or their estates, in the absence of the writing on their part required by the statute of frauds. To the extent that the parties have acted under the declaration, they are equitably bound, of course, but a court of equity should, it seems to me, on the application of any equitable owner, inter■ested adversely to the trustee, give him the benefit of his whole equitable estate in the lands, subject only to such lawful restrictions thereon as have been authorized in writing signed by him. Under this view of his rights the complainant has, therefore, an ■equitable estate in these lands which would entitle him to a partition, and I shall so advise, without determining the further •questions raised by the complainant as to the construction and validity of the provisions of Carey’s covenants in the declaration •of trust.


author: The Ordinary.

text:
    Robert S. Gould v. Patrick J. Moulahan.
    "Where a married woman dies, leaving an insolvent husband surviving her, --a proper third person who has borne the necessary expense of her suitable burial may recover from her estate.
    On appeal from an order of the Essex county orphans court.
    The order appealed from, discharged an order to show cause why sufficient lands of Mary E. Connolly, deceased intestate, should not be sold for the payment of her debts, which was made upon the petition of Robert S. Gould, the administrator of her-estate, to which petition was annexed an account which exhibits-that Mrs. Connolly did not leave any personal- property, and that the only claim against her estate is a bill, presented by J. B.. Dowling & Son, for the expense of her burial. It does not appear by whose direction that bill was incurred.
    Mrs. Connolly left a husband surviving her, but he is without property from which the expense of her interment may be recovered. He renounced his right to administer upon her estate, and,, some two months after her death, letters of administration were issued to the appellant, Gould.
    The stipulation between the counsel in the case contains this-paragraph:
    “It is further agreed that the argument upon appeal be confined to theeingle question as to whether the lands and real estate of a married woman who dies leaving a husband her surviving, are liable for her funeral expenses and can be sold by an order of the orphans court to pay them, under the statute-providing for the sale of lands of a decedent, where the husband of the deceased has no property from which the undertaker’s bill can be collected, and whether-the decree of the orphans court was erroneous in this respect.”
    The respondent is the heir-at-law of Mrs. Connelly.

      Mr. Thomas S. Henry, for the appellant.

      Mr. James M. Trimble, for the respondent.
   The Ordinary.

Every person has the right to have his or her body, after-death, decently buried. Regina v. Stewart, 12 Ad. & E. 773; Chapple v. Cooper, 13 Mees. & W. 252; Patterson v. Patterson, 59 N. Y. 583; McCue v. Garvey, 14 Hun 562. The reasonable and necessary expense of according that right is chargeable to his or her estate. Patterson v. Patterson, supra. The duty of securing the right ordinarily rests with the personal representative, and if there be no such representative, or, if existing, the representative fails to act, the exigency of the situation will permit a proper third person to afford the right, in favor-of whom the law will imply, from the representative’s obligation., a promise upon the part of the latter to reimburse the reasonable expense of the interment to the extent of. the assets of the decedent’s estate which may become available for that purpose. The implication of such a promise is a recognized exception to the rule that an action will not lie for a voluntary courtesy. Force v. Haines, 2 Harr. 389; Patterson v. Patterson, supra; Lakin v. Ames, 64 Mass. 221.

In case of the death of a married woman, the duty to bury her and discharge the expense of so doing, devolves upon her husband, if he shall survive her. Jenkins v. Tucker, 1 H. Bl. 90; Bertie v. Lord Chesterfield, 9 Mod. 31; Ambrose v. Kerrison, 10 C. B. 776; Bradshaw v. Beard, 12 C. B. N. S., 344; Cunningham v. Reardon, 98 Mass. 538; Weld v. Walker, 130 Mass. 423; 2 Bright H. & W. 521; MacQueen H. & W. 191; Schouler H. & W. § 412; Evers. Dom. Rel. 305. His liability for the expense of the interment does not arise in virtue of any interest he may have in the wife’s property, but from the personal advantage it is to himself to have those persona conjunctce with him, his wife and lawful children, properly maintained during life and suitably buried at death.

The question whether, if the husband shall perform this duty, he may be reimbursed from his wife’s separate estate, is not presented in this inquiry. The cases dealing with that subject appear to be somewhat at variance. See, among others, Gregory v. Lockyer, 6 Mad. Ch. 63; McCue v. Garvey, 14 Hun 562; Freeman v. Coit, 27 Hun 447; In re McMyn, 33 Ch. Div. 575; Darmody’s Estate, 13 Phila. 207.

The point in the present inquiry is whether, where the husband is unable to bear the expense of his wife’s burial, her estate may be held liable for it.

But for the husband’s survival of his wife, the obligation to bury her and to pay the expense of that burial would rest upon the representative of her estate. Is the husband’s obligation in such case substituted for the representative’s so that its existence discharges the representative’s, or is it additional and primary thereto? I am of opinion that the latter clause of this question is entitled to the affirmative answer; that there is a double obligation when a married woman dies leaving a husband, a primary-obligation on the husband and a secondary obligation upon the representative of her estate, and that the mere existence of the husband’s primary obligation does not discharge the estate’s secondary obligation, although the husband’s performance of his obligation may effect such discharge.'- The wife is entitled to be suitably buried at the expense either of her husband or of her estate, otherwise the wealthy wife, of an insolvent husband might be subjected to the burial of a pauper. And it appears to me to follow that upon the failure of the primary obligation, for any reason, the secondary may be enforced. Common decency and humanity is regarded by the authorities as authorizing a speedy burial of a decedent by any proper person, unobstructed by hesitation in measuring the responsibilities of the husband and representative, and such exigeucy affords a strong reason why both those responsibilities for reimbursement should remain available.

By the stipulation in the present case it appears that the husband is insolvent, and therefore any effort to recover from him as the primary obligee would be abortive, and hence that immediate demand against the representative is proper.

My conclusion is that the order appealed from must be reversed.


text:
    In the matter of the application for the appointment of guardian of the person of Alexander M. Ross, an infant.
    The rule which obtains in the orphans court, that guardianship of an infant’s person will not be awarded to one person and the guardianship of his estate to another, should control the prerogative court in the exercise of its jurisdiction unless the application of the rule would lead to great hardship.

      Mr. Samuel P. Savage, for the petitioner.
   The Ordinary.

The petition in this case is by the mother of the infant. It alleges that the father lately died without having disposed of the guardianship of his child and that the infant is now under fourteen years of age. It prays that the mother may be appointed guardian of the person of the infant. It does not ask that she be appointed guardian of his estate. It does not state a reason why she should not also be appointed guardian of his estate. The design evidently is to secure a separation of the guardianship so that the person will go to one care and the estate to another.

In the case of Tenbrook v. McColm, 7 Halst. 97, decided in the supreme court in 1830, it was held that the policy of the laws of this state forbade au orphans court awarding the guar- . dianship of au infant’s person to one and the guardianship of his estate to another. The chief-justice (Ewing), after stating the statutory policy, added:

“ The idea of parceling out the guardianship and dividing its duties among several, I do not find recognized, directly or indirectly, in any act of the legislature.
“ From a separation of these duties, while very little benefit can be anticipated, mauy inconveniences and considerable increase of expense must necessarily follow. The policy of our laws is wisely designed to prevent such consequences.
From a careful review of the acts of the legislature on this subject, and from a reference to the uniform and settled practice ■of the state, which is entitled to some respect, I am satisfied the orphans courts are not authorized to divide the guardianship of a minor and commit his property to one and his person to another.”

This decision was recognized as the law in 1835, by Chancellor Vroom, in Matter of the Guardian of Abraham Van Houten, 2 Gr. Ch. 220. I am not aware of any later decisions upon this subject. These cases have been acquiesced in as the law of this state to this time. My reseai’ch has not disclosed any change in the statutory policy of the state.

While the decisions referred to do not define the powers of the prerogative court, they, and the statutory policy of the state exhibited in the Orphans Court act, must have an influence with the prerogative court in the exercise of its jurisdiction, and, I think, should control it, except possibly in a case in which the-application of the rule would lead to great hardship. Such a. case is not presented here. My understanding, from the statements of counsel, is, that it will be simply convenient to have-the infant’s entire estate managed by a trust company, which, is illy fitted to also control his person, and hence that the guardianship should be divided.

The great evil of two guardianships lies in two sets of accountings and expenses for the accomplishment of that which should be one duty.

I think that the court should condemn such a separation unless the given case shall present strong exceptional features.

I will therefore deny the present application, without prejudice, however, to granting guardianship of both the person and estate of the child to the mother when it shall be asked for in any proper tribunal.


author: Beasley, C. J.

text:
    Truman M. Dodson et al., appellants, v. John Sevars, respondent.
    1. A creditor who has failed to present his claim to the executors of his. debtor within the time limited by the orphans court, cannot apply to the court of chancery to have certain bequests and devises subjected to his claim, it appearing in his bill that on final settlement there was a large residue left in the hands of the executors.
    2. Defects in the proceeding commented on.
    On appeal from an order of the chancellor, whose opinion is reported in Dodson v. Sevars, 7 Dick. Ch. Rep. 611.

      Mr. John H. Baches, for the appellants.

      Mr. William M. harming, for the respondent.
   'The opinion of the court was delivered by

Beasley, C. J.

'This case is before the court on an appeal from an order sustaining a demurrer by John Sevars, the respondent, who was one of several defendants in the court of chancery.

The general aspect of the bill is this: The complainants in the •court below are creditors-at-large of the estate of the late James Taylor, and in laying the ground of this proceeding they allege that; the executors of his estate settled their accounts finally in ■the orphans court, having obtained a decree that all creditors w7ho had not come in within the time limited by a rule duly ■taken and published, -would be barred. They further declare that they did not present their claim now in question with the ■executors within two years after this final settlement and decree.

It likewise appears that when the executors thus settled they ■charged themselves, after the payment of all debts, with a balance of $61,399.60, and what became of this sum is not told.

The demand sought to be enforced is less than one-fourth of this amount.

This being the situation, the complainants exhibited their bill for the purpose of compelling the executors to take possession of ■certain personal property that was specially bequeathed to the widow and granddaughter of the testator, and to sell a certain tract of land that the will directed to be sold for the benefit of •certain members of his family, among whom the proceeds were to be divided.

This is the entire scope of the complaint, with the exception that it prays the removal of the executors from their office without assigning anything to justify a course so rigorous.

It should be observed that this bill does not call for an examination of the state of the assets of the estate, or even attempt to •show why it is necessary to resort to the present course of law.

Regarding, then, this bill in this its general aspect, it is •deemed to be manifest that it stands upon a theory that has no foundation in law or equity. That theory is nothing but this:: That a creditor who fails to put in his account before the settlement of the estate in the orphans court, can file his bill to have-his debt paid out of any legacy or devise he may select, and this-without any reference to the amount of primary assets which have been or which remain in the hands of the executor. The-general rule is that the personal property undisposed of by the-testator must be applied before the things bequeathed or the land: devised can be resorted to, but the theory in question is constructed on the basis that the creditor, refusing to subject his-claim to the ordinary course of administration, occupies the vantage ground of being possessed of the prerogative to disregard the equitable rules touching the marshaling the assets in the-payment of ordinary creditors — he can appropriate whatever devise or bequest he may select.

There is nothing in our laws to warrant such a contention,, and the bill is therefore demurrable for that reason.'

There are other defects of this bill that appear to have escaped1 notice.

The chancellor, in his opinion, says: “ The bill states that the-remaining personalty was bequeathed absolutely to Mrs. Taylor,, with the proviso added that if she should die intestate, leaving-part of it undisposed of, then his executors were to convert it into money and distribute it. This statement of the will shows-an absolute gift for an indefinite time, with unlimited power of alienation. Such a gift is construed to carry to its recipient the absolute ownez’ship, and a gift of that which remains undisposed of over is void.”

There can be no doubt of the view thus expressed, and it is-established by the authorites cited.

The status, therefore, in this respect is that the personalty in question passed, on the death of Mrs. Taylor, to her personal representative, and yet he has not been made a party to the suit.. No decree could be made in this respect in the absence of such a necessary party.

So, also, with regard to the tract of land mentioned in the bill. The title is in the heirs-at-law of Jaznes Taylor, the testator, a power of sale merely being given to the executors, and who such heirs are is not shown. The court could not divest them of title in their absence.

None of the foregoing views are embraced in the brief of the ■counsel of the respondent. Had they been suggested in the ■court below, it is probable that the decree would have had a wider scope, but as the case stands on this appeal, all that this •court can do is to affirm the decree as it appears upon the record.

For affirmance — The Chief-Justice, Garrison, Gum-mere, Lippincott, Magie, Van Syokel, Bogert, Brown, Krueger, Sims — 10.

For reversal — None.