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    Cortlandt Parker et al., executors, &c., of Richard W. Stites, deceased, v. Elizabeth W. Seeley, Richard Wayne Stites et al.
    [Filed September 20th, 1897.]
    1. Where a widow is entitled to an annuity under her husband’s will, her estate is entitled, on her death, to that part of the annuity for the year in which she died that had accrued at the time of her death, and not to the entire annuity for the year.
    2. Where a fund is held in trust for one person for life and for another in remainder, and the trustees realize a profit on real estate bought under foreclosure of a mortgage in which the fund is invested, the profits are to be apportioned between the life tenant and remainderman in the proportion which the principal represented by the investment bears to the interest which was in arrears, and also represented by the investment.
    3. Where a will contemplates an actual division of the estate by trustees and payment to the tenants in common in money, a power of sale is to be inferred.

      4. Testator gave certain property and furniture, &c., to his son-in-law and grandson in trust for his wife for life, and on her death he gave his son “ the right to purchase (not'for speculation) the said dwelling-house in E. street and a part or portion of the said lot upon which said house stands, for §8,000,” and provided that if his son should elect to purchase such property it should he vested in testator’s trustees, in trust for his son for life, and after his son’s death to his lawful heirs. He also directed that his son should have five years after the death of the widow to pay his two sisters each their third part of the §8,000, but the time when the son’s right to purchase was to be exercised was not mentioned or limited, except that it was to take effect after the widow’s death; nor was any particular mode indicated in which it was to be exercised. The property which the son was given the right to buy was worth much more than §8,000. At the time of the widow’s death the son was on his deathbed and died eleven days afterwards; and at no time after her death was he able to attend to any business requiring any continued effort, either mental or physical. — Held, that the son’s option to buy was not one which could be exercised only by a written declaration, and where he had fully made up his mind to accept the gift on the terms named, and the trustees knew of such fact and could have compelled him at any time to declare himself one way or the other, the option was not lost (though no formal declaration, either oral or written, was ever made by the son, directly, to either of the trustees, of his intention to purchase on the terms named), and his son and only heir had the right to take the property on payment of the §8,000.
    Final hearing on pleadings and proofs.

      Mr. Cortlandt Parker, Jr., for the complainants.

      Mr. George T. Werts, for the defendant Richard Wayne Stites.
   Pitney, V. C.

The object of this bill is to obtain the opinion of the court upon the construction of the will of the late Richard W. Stites, of Morristown, New Jersey, and for instruction to the executors as to certain questions arising in the course of the administration of the estate and the settlement of their accounts,

It is a friendly suit and made necessary by the infancy of one of the parties in interest.

The testator died on the 2d of July, 1877, leaving three children, Elizabeth W. Parker (wife of Cortlandt Parker), Frances B. Seeley (wife of-Seeley) and Richard M. Stites, each of them being married and having children, and also a widow, Elizabeth O. Stites, who survived him and died on the 29th of February, 1896. His daughter, Mrs. Seeley, died on the 11th day of January, 1889, seven years before her mother. The son, Richard M. Stites, died on the 11th of March, 1896, eleven days after his mother; and Mrs. Parker is still living.

For many years before and at the time of his death, the testator resided on his homestead property, situate on Elm street, in Morristown, and his son, Richard, who was married in the father’s lifetime, lived with him. The homestead consisted of a tract one hundred and nineteen feet on Elm street and seven hundred and fifty-two feet deep from the middle of the street. It is bounded on the northeast by the lot of S. H. Little, formerly owned by W. C. Baker, and on the southwest by the lot of Mr. Bushnell, and has no frontage on any street except Elm. The dwelling occupies a little less than one-third of the frontage and stands in about the centre of the lot, leaving a vacant lot on each side.

The will, probably a holograph, executed in 1873, after appointing testator’s son-in-law, Cortlandt Parker, and grandson, Richard Wayne Parker, now known as Wayne Parker, his executors, proceeded to give unto them his estate, real and personal, in trust:

“ First. To hold the l6t and dwelling-house in Elm street, Morristown, in which I now live, for sole use, occupation or income of my faithful and devoted wife, Elizabeth C. Stites, with all of the furniture, plate, carriage & cet., free of all charge or rent, for and during the term of her natural life. Also, I give and devise to my said wife, E. C. Stites, during her said life, the sum of one thousand eight hundred dollars per annum, to be paid her by my said executors and trustees, when and in such sums as she may desire. The above to be in lieu of dower. My estate in general to make all needful repairs. My son and wife to pay taxes and insure to amount of seven thousand dollars upon the house, i. e., if he (my son) elects to purchase said house. Upon the death of my said wife, E. C. S. [died February 29th, 1896], I give to my son, R. M. Stites [died March 11th, 1896], the right to purchase (not for speculation) the said dwelling-house in Elm street and a part or portion of the said lot upon which said house stands, for eight thousand dollars, which part or portion of the said land will consist of eighty feet front upon Elm street, beginning at the corner-post in the lane between the land owned lately by Wm. C. Baker [now S. H. Little] and myself, and running back in depth three hundred and sixty feet. The above eight thousand dollars to include all of the furniture except the silver.
“If my son, R. M. Stites, shall elect to purchase said lot and dwelling in Elm street, then the said lot shall be vested in my trustees, Cortlandt Parker and R. W. Parker, and the survivor of them, in trust to and for the use, benefit and behoof of my son, Richd. M. Stites, during his life, and after his death to his lawful heirs, Richard W. Stites [defendant] and Montgomery Stites [died in testator’s lifetime]. My son, R. M. Stites, may have five years after the death of my wife to pay his two sisters, Mrs. Parker [defendant] and Mrs. Seeley [died 1889], each their third part of the said eight thousand dollars. Lawful interest to be paid annually on the said debt by him. ' To help to meet, this debt, I advise my executors and trustees to lay aside out of my son’s portion at least two or three hundred dollars annually as a sinking fund.
“ If necessary, my executors and trustees are authorized to pay to the trustees: of Mrs. E. W. Parker and Mrs. P. B. Seeley, the two-third part of the said! debt, i. e., five thousand three hundred and thirty-three dollars, out of the share held by the said trustees for him [son, R. M. Stites] and his children.
“ If my son shall die without lawful heirs, or if after his death his two sons, Richard and Montgomery, shall die before the age of twenty-one years, then said house and lot shall pass over to his sisters and their heirs. If my daughter Mrs. P. B. Seeley shall ever require a home, then my son, Richard, and his trustees, shall allow her to occupy a part of the said house, free of charge, so long as she remains a widow.
“ The residue of my estate, real and personal, I give and devise to my son-in-law, Cjprtlandt Parker, and grandson, Richard W. Parker, and the survivor of them, in trust to and for the use, benefit and behoof of my three children, Mrs. E. W. Parker, Mrs. P. B. Seeley and Richard M. Stites, share and share alike, to them during their life, so that they (my said children) will receive, possess and enjoy from my said trustees the income and profits of their respective share, each one to his or her own separate use, and after their death to their heirs forever. ? My grandsons, R. W. Stites and Montgomery Stites, not to have control over their respective property before each shall arrive at the age of twenty-five, and enter, if health allows, upon some way of earning an honest livelihood.”

Testator -left a personal estate amounting to about $80,000, which has somewhat increased in the hands of the trustees.

Four questions are submitted :

First. As the testator died in July, 1877, and the annuity to the widow commenced at that date, and she died before the end of the current year, counting from July to July, viz., February 29th, 1896, whether she is entitled to the whole of that year’s annuity, or only to that part of it which had accrued up to the date of her death, the balance being needed to pay her funeral expenses, &c.

I regret that I can find no authority for giving her any more than the amount that had accrued up to the time of her death.

Second. The next question arises between tenants for life and remaindermen as to the disposition of extra profits to be realized upon real estate bought in under foreclosure of mortgages and held by the executors. From this source it is expected that there will be a profit, after paying expenses, restoring the principal sum and paying all arrears of interest.

It will be observed that the real estate was purchased with the funds of the estate, consisting partly of principal and partly of interest, the principal belonging to the remainderman and the interest to the tenant for life.

This subject was dealt with in the case of a loss arising under such circumstances in the case of Hagan v. Platt, 3 Dick. Ch. Rep. 206, and the doctrine there laid down was followed and applied by the ordinary in Tuttle’s Case, 4 Dick. Ch. Rep. 262. The rule so established is that, in case of a loss, the deficiency is to be divided between the tenant for life and remainderman in the proportion which the principal represented by the investment bears to the interest which was in arrear and also represented by the investment. And it seems to me that the same principle applies to the case where a profit instead of a loss arises. The authorities and reasoning in Hagan v. Platt and Tuttle’s Case, supra, so far as I have observed, had not been presented to the court in any previous reported case. Chancellor Runyon had a similar ease before him in Parker v. Johnson, 10 Stew. Eq. 366. There was there a profit of $1,700 arising under circumstances precisely similar to those before the court, and he ordered the surplus to be retained, and not applied either to principal or interest, until it appeared whether or not there might not be a loss on some of the other investments held under the same trust, and says: The trustee in this case is to keep the fund invested, and the tenant for life is entitled to the interest. Jt is clearly the duty of the trustee to apply the profits of one investment to make up the losses on the other.”

It thus clearly appears that the precise question now under consideration was not presented to the mind of the chancellor, nor were the authorities cited before him. The third proposition decided in Outcalt v. Appleby, 9 Stew. Eq. 73, has no application here, for the reason that the unproductive property there held was a part of the original estate. The consideration which seems to control is that the property purchased represents both principal and interest, and its growth in value is due to both sources.

I shall advise that at the final settlement of the estate at the end of the trust, the surplus, if any, arising from the purchase of property under foreclosure and resale thereof, shall be divided according to the rule laid down in Hagan v. Platt and Tuttle’s Case.

Third. The next question is as to the power of sale of the executors arising under the disposition of the residue. That residue, consisting of real and personal property, is given

“in trust for the use, benefit and behoof of my three children, Mrs. E. W. P., Mrs. F. B. S. and K. M. S., share and share alike, to them during their life, so that they will receive, possess and enjoy from my said trustees the income and profits of their respective shares, each one to his or her own separate use, and after their death to their heirs forever.”

The plain rule is that if the will contemplates an actual division of the estate by the trustees and payment to the tenants in common in money, that a power of sale of land is to be inferred. On that subject I cite Vanness v. Jacobus, 2 C. E. Gr. 153, by Chancellor Green; Wurts v. Page, 4 C. E. Gr. 365 (at p. 375), by Chancellor Zabriskie; Haggerty v. Lanterman, 3 Stew. Eq. 37, by Chancellor Runyon; Belcher v. Belcher, 11 Stew. Eq. 126, also by Chancellor Runyon.

It is probable that a close application of this rule to the case in hand would give the executors a power, of sale. But I do not consider it necessary or proper in this case to determine that question,.for the reason that it is perfectly clear that the real estate which will fall into the residue in this case is incapable of division and must be sold, and that the interests of the parties require that it should be sold and all parties are before the court, so that the property may be sold by a master and have the approval of the court, with very slight additional expense, and with the result that the title passed will be above suspicion.

I will advise a sale by a master.

Fourth. The next question arises under the gift to testator’s son, Richard M. Stites, usually called Colonel Stites, of

“ the right to purchase (not for speculation) the said dwelling-house in Elm street, and a part or portion of the said lot upon which said house stands, for eight thousand dollars, which part or portion will consist of eighty feet front on Elm street, beginning at the corner post in the lane between Baker’s [now Little’s] land and myself, running back in depth three hundred and sixty feet.”

It will be observed here that this is a gift of the “ right to purchase,” and the time when the right is to be exercised is not mentioned or limited, except that it is not to take effect until the death of the testator’s wife, nor is any particular mode indicated in which it is to be exercised.

The facts are that no formal declaration, either oral or in writing, was ever made by Richard M. Stites, directly, to either of the trustees of his intention to take the property at the price named. The matter had been the subject of conversation between Mr. Wayne Parker and his Uncle Richard, in the lifetime of the latter’s mother. Mr. Parker swears that the matter of the exercise by Richard of his right of purchase was spoken of between them about the year 1891 or 1892, on the occasion of an accident happening to his grandmother. The question of repairs was under discussion, and as to whether the executors ought to make certain repairs out of the funds of the estate, and Mr. Parker said to Colonel Stites, “You may be the person interested. I do not know, for you have never told me whether you expected to take the house; ” and that his uncle answered, “ That question does not arise until after mother’s death.” That nothing more was said after that remark. But Mr. Parker is in doubt as to whether he said to his uncle on that occasion that “ he supposed he would take the house,” or, “ he didn’t know whether he would take the house or not; ” but he does remember that he said to his uncle that he had never told him what he intended to do upon the subject.

Colonel Stites was an invalid for several years before he died, and at the time of his mother’s death was on his deathbed, from which he never arose. His attending physician swears that at that time, and for three or four days after her death, he was in a very weak state; that he rallied for three or four days, about the 5th, 6th or 7th of March, and then began to sink, dying on the 11th; that neither he nor his family, however, were aware of his approaching dissolution. At the time of his mother’s death, his sister, Mrs. Parker, was also very ill, and he was enabled, by the free use of stimulants, to be propped up in bed and write her a pencil letter on the occasion. But he was entirely unable to attend to any business requiring any continued effort, either mental or physical.

The property in question, as has been stated, had about one hundred and nineteen feet front on Elm street, with seven hundred and fifty-two feet depth from the centre of the street, and about seven hundred and twenty feet from the side of the street, and the house stood in about the centre of the lot, leaving a passageway of about forty feet on each side. It was bounded on one side by land of Mr. S. H. Little, formerly owned by W. C. Baker, and on the other side by the residence of Mr. Bushnell. By the terms of the will the eighty feet, including the house, the option to purchase which was given to the colonel, was to be taken on the side next to Mr. Little, and the depth, three hundred and sixty feet, was just about one-half of the depth of the lot, leaving a strip of about thirty-nine feet on the side next to Bushnell, leading to a rear lot one hundred and nineteen feet by about three hundred and sixty feet in size, which had no frontage on or connection with any street except Elm street.

On the day of the funeral, and after the burial of the elder Mrs. Stites, Mrs. Louise Stites, wife of the colonel, had a conversation with her brother-in-law, Wayne Parker, in the house, in which she swears that she informed him that the colonel had determined to take the property on the terms'of. the will. Her husband had previously told her that he intended to have the vacant lot on the side next to Bushnell. Whether he intended to have that in addition to the amount mentioned in the will, and thus control the whole front, or whether he intended to effect an exchange with the trustees and take his eighty feet from the side next to Bushnell, giving to the trustees the thirty-nine feet next to Little, does not clearly appear. But it does appear that Mr. Wayne Parker, who was the acting trustee, desired to have the passageway of thirty-nine feet reserved by the will to go with the rear lot, to be taken from the side next to Mr. Little.

Mrs. Stites’ account of the interview with her brother-in-law, after the funeral, is this :

[Here follows a statement of the evidence.]

From this conversation, I infer that there was no doubt in the mind of the acting trustee, Mr. Wayne Parker, from the conversation that occurred between him and his Aunt Louise— in fact, the considerable value of the lot over the price named was of itself an assurance — that his Uncle Richard had fully determiued to exercise his option under the will; and the only matter left for discussion was from which side of the lot the eighty feet should be taken. And that, surely, was a matter of business which required some discussion and arrangement, for which Colonel Stites was entirely unfit at that moment.

On the Tuesday, March 10th — as Colonel Stites died on Wednesday, March 11th — he had a talk with his wife, and said that as Wayne would be home from Washington on Saturday, he would arrange for him to come up and they would settle the whole matter about the lot which he was to take.

The proof is abundant by Mrs. Stites and the son Richard Wayne Stites that he had fully determined to exercise the option under the will, and that the designated house and lot is worth much more than $8,000.

It is urged by the executors, acting in the interest of the eestuis que trust, that under these circumstances the option is lost and could not be exercised by the grandson, who is the sole heir-at-law of Richard M. Stites, and devisee of his grandfather under the will. There is no doubt — it was admitted — that the grandson had declared his desire to have the property at the price named. The ground taken is that it was an option personal with the son Richard M. Stites, and could be exercised only by a written declaration which bound him to purchase at the price named, and that not having been exercised in his lifetime, it fails.

I am unable to take that view. Here was a gift to the son of a valuable right, to be exercised at the death of his mother, the tenant for life. The testator himself did not limit the time or the manner in which it should be exercised. The whole thing was a family arrangement. The executors and trustees were the son-in-law and grandson of the testator, and brother-in-law and nephew of the beneficiary. It was not a case for the imposition by the testator of any special terms, and time was not declared to be of the essence of the gift. Nor is there anything in the circumstances which requires that this court should declare time to be of the essence of the gift or quasi-contract. The strictest rule' would at least give a reasonable time to exercise the option, and equity would relieve a party entitled to the right from the effect of failure to exercise it by reason of physical inability. Here the beneficiary had fully made up his mind to accept the gift upon the terms named, but was prevented from exercising it in a formal manner by disease and death.

There never was any difficulty at any time on the part of the trustees in compelling him to declare himself one way or the other in a conclusive manner. Either of them could have applied to him in person and asked him to say in writing what he proposed to do. Mr. Wayne Parker could, after the funeral, have prepared two papers, two lines each, one saying, I accept the option to purchase under my father’s will,” the other, “I decline to accept the option to purchase under my father’s will,” taken them to his Uncle Richard, sick as he was, and asked him which he desired to do, and he could have signed one or the other in two minutes.

And I cannot for a moment doubt but that if he had been aware of his uncle’s critical condition he would have done so cheerfully.

He certainly knew, from what his aunt said to him, what his Uncle Richard’s mind was,'and it is clear that the only ground for postponing immediate action was the matter of negotiating as to which side of the dwelling the forty feet entrance to the rear lot should be left. That was a' matter which required some negotiation and mental effort, and was very properly postponed, in the hope that his Uncle Richard would soon be in a condition to discuss it.

Looking at the verbiage and frame of the will, I cannot think that the testator intended or expected that the right of his son to the house and lot in question should depend upon such a slender tenure as the trustees feel constrained to contend for here. He did not, as I read the will, have in mind that his son should bear to his son-in-law and grandson, acting as trustees, the relation of a party holding a written option to purchase land, to be exercised only according to the letter of a contract and avoided by a failure to strictly fulfill certain specified conditions. In other words, he did not expect the parties would stand at arms’ length. In my judgment, he contemplated a certain state of mind on the part of his son, to be communicated in conversation to the trustees named in his will, who, as trustees for the sou as well as his relatives and personal friends, would do what was necessary to carry out his will. It was evidently his expectation and wish that his widow and son should live together in the homestead during her lifetime; that his son and family should continue to occupy that homestead after her death, during his son’s lifetime, with the privilege of a home for his daughter Frances if she needed it. At the death of his son he wished it to go to his grandsons upon their attaining twenty-five years of age, all upon condition that the son should consent that the trustees should take $5,333 out of his share of the personal estate and add it to the shares of his sisters. This has all been accomplished up to the death of the son. The question of the payment of taxes and insurance was a matter entirely between the mother and son, and was, presumably, settled amicably between them. And so with regard to Mrs. Seeley’s right. It never came into existence because she did not survive her mother, and so has no place here.

The son, immediately upon his mother’s death, was ready to give the requisite consent to the depletion of his share when required, and occupied the house until he died. It seems to me that it would be a harsh construction of the will, and going contrary to the wishes of the testator, to say that the grandson may not now accept his grandfather’s gift by formally acceding to the terms imposed.

It seems to me that the case differs little, if any, from those dealt with in Skillman v. Van Pelt, Sax. 511, and Yawger v. Yawger, 10 Stew. Eq. 216.

In the first, the devise was

“to my sons, Abraham and James, my farm whereon I now live, to them, their heirs and assigns forever, to be equally divided between them, provided they or their heirs shall pay or cause to be paid to my executors, hereinafter named, the sum of thirty-five hundred dollars, within eighteen months after my decease, which said sum of money is to he paid by them equally, each one-half,"

and Abraham (one of the devisees) and a stranger were appointed executors with power of sale. After the testator’s death, October 31st, 1820, the executors proved the will, and the devisees entered and took possession of the premises, and on the 25th of November, 1820, made partition-thereof between them by mutual releases. It was held that under this will the devisees took an estate in fee-simple in the devised premises, charged with the payment of $1,750 each, and that “ the payment of this sum was not a condition, on the breach of which the right vested in the executors to sell; they could assert their claim under the will only by suit or bill.”

In Yawger v. Yawger, the testator devised to his son John C. a farm of one hundred and three acres, by his allowing and paying for the same the price of $80 per acre. The testator died September 11th, 1882, and his son John C., October 6th, following. The learned vice-chancellor says: “ It was alleged that while John C., in his lifetime, did not reject the provisions of the will in his behalf, he did not accept them. In other words, he made no positive election. It was suggested that, because John did not in some positive way signify his acceptance of the devise of the land and the bequest of the legacy, the title never descended to him, but was, by force of law, cast upon the heirs-at-law.” And further on: The devise and the legacy to John were beneficial to him. He must, therefore, be presumed to have accepted them. A gift imports a benefit, and an assumption to take a benefit may well be presumed.”

It is true that we have not here, as in those cases, a direct devise to the son subject to the payment to the sisters, but I think it is, in substance, the same, for in the cases cited the testator could not impose upon the devisees a gift subject to the payment of a fixed sum without their consent. The consent in the two cases cited was quite as essential and requisite as here. And in this case, as in those cited, the payment of the price is not a condition precedent to the vesting of the title. All that is necessary to vest the title is that the devisee shall accept the devise upon the terms named. The trustees hold in their hands the money to pay the price named.

An instructive case in the same direction is Merrill v. Emery, 10 Pick. 507, decided by Chief-Justice Shaw. The testator in that case gave his wife certain personal property absolutely, and the use of his household furniture and pew in church for life—

“the foregoing bequests being subject to the following conditions, viz., that my said wife shall relinquish all her right of dower in my estate, and provided also that she educate and bring up my granddaughter, Mary L. Richards, until she arrive at the age of eighteen years, or is married, as the case may be.”

On the evening succeeding his funeral, his wife sickened, and died on the seventh day from his death, without ever having expressly, by writing or other proceeding in the probate court or elsewhere, waived the provision made for her in the will; nor did she ever claim dower. The value of the bequests to the widow was greater than all the real estate of the testator. The action was by the administrator of the widow against the executor of the will, and it was held that she was entitled to recover the personalty bequeathed to her. The learned chief-justice, in support of his opinion, uses this language:

“ One of the conditions was, that the legatee should relinquish her right of dower in the estate of the testator. We think it would be a forced construction of the will, to construe this a condition precedent, in the manner contended for. It did not imply that the widow should, by any express and formal act, release her dower; it would be a sufficient compliance that she made no claim, but tacitly waived her right. The plain intent was that she was not to have the provision in the will and also her dower; and the same construction would have been put upon this bequest, by force of the statute, had the will contained no such condition. In such case a widow has a reasonable time to make her election, and unless she elects to claim her dower, her right to the provision under the will is not defeated or suspended. In the present ease it is manifest that the widow did no act in her lifetime denoting any intention to claim her dower, and certainly no unreasonable time elapsed, within which she could make her election.
“But there is another view of the subject, which is this, whether, where a personal right depends upon an election, and no express election is shown, nor any positive act or declaration, manifesting such election, an election is not to be presumed from the circumstances, and we think it may be.
“ The question then is, what was the widow’s presumed election ; to determine which, it becomes necessary to look into the facts. It appears by a reference to the inventory, which is now made part of the case, that .the whole of the testator’s real estate was not equal in value to the provision in the will. It is manifest, therefore, that she could not, without acting greatly against her interest, elect to take one-third of this real estate for her life, the provision in the will being obviously so much more beneficial. The presumption of law therefore is clear, that she must have elected the provision in preference to her dower. The first condition therefore does not stand in the way of the plaintiff’s recovery.
“ The other condition was that the legatee should educate and bring up the testator’s granddaughter. This is clearly a condition subsequent. It was to be performed for a time which might, and probably would, continue long after the legacy was to vest. The defendant objects that it was not complied with. To this there are two answers depending upon the force of the term educate and bring up. If they imply personal parental care, then the duty terminates with her own life and the condition was performed. She did educate and bring up the granddaughter so long as she lived, though it was indeed for a very short period. Besides, in the case of a condition subsequent, the act of God excuses non-performance. But if Go educate and bring up’ means to furnish subsistence to the granddaughter, then the condition was a mere charge on the legacy and it might be performed by the personal representative, and would not prevent the legacy from vesting. We think that a personal care was intended, and consequently that by the death of the legatee the legacy became discharged of the condition.”

This reasoning seems to me to apply with force to the case in hand.

The line of authorities relied upon by the counsel of the trustees, namely, English v. English’s Executors, 2 Gr. Ch. 504; Baldwin v. Vreeland, 16 Stew. Eq. 446; Young v. Young, 6 Dick. Ch. Rep. 491, seem to me to have little bearing upon the present case, and what little they have is against rather than for the position of the trustees.

In English v. English’s Executors, the question was whether a widow, who had a vested estate in dower in land, had lost that estate by electing to take a bequest of money made expressly in lieu of dower. It was, in fact, a matter of a choice between two conflicting claims. Certain acts and doings were relied upon as amounting to a binding election to accept the legacy and renounce her dower. The much-quoted language of Chancellor Vroom (at pp. 508, 509, 510) applies to the case of a party choosing between two conflicting claims, and follows Dillon v. Parker, 1 Swanst. 359 (at p. 382), and it was held that by the conduct in question in English v. English’s Executors the widow had not finally determined to accept the legacy in lieu of her dower.

This case was followed in Young v. Young, 6 Dick. Ch. Rep. 491, where the question was of the same nature, though not arising out of a right of dower, and was in effect a choice between two inconsistent claims. The principle established in such cases is thus stated by Chancellor Vroom (2 Gr. Ch. 509, 510): “ What acts of acceptance or acquiescence are sufficient to constitute an election cannot be designated with sufficient precision to justify a general rule. Each case, as it occurs, must be governed by its own peculiar circumstances. The general questions are whether the parties acting or acquiescing were cognizant of their rights, whether they intended to make an election, whether they can restore the individuals affected by their claim to the same situation as if the acts had never been performed, or whether these inquiries are precluded by lapse of time. * * * There must be some decisive act of the party, with knowledge of her situation and rights, to determine the election, or there must be an intentional acquiescence in such acts of others as are not only inconsistent with her claim of dower, but render it impossible for her to assert her claim without prejudice to the rights of innocent persons.”

There is in the present case no question of choice between inconsistent claims, but merely one of the acceptance of a gift upon terms. And if Colonel Stites, or his son Richard, the present defendant, had said and done certain equivocal and indeterminate things indicating an intention not to accept the devise upon the terms mentioned, those cases would be authority for the position that they might, in the absence of irretrievable action by the parties adversely interested, retract what they had said and done and finally accede to the terms and accept the gift.

In Baldwin v. Vreeland, 16 Stew. Eq. 446, there was a devise of land to a trustee, with power and direction to sell and divide the proceeds among several persons named. The beneficiaries united in an agreement to sell the premises at a price named, which, however, was never carried out. Subsequently one of the beneficiaries sold and cpnveyed his interest in the land to an outside party, and afterwards the executors, at the request of the other beneficiaries, proposed to exercise the power of sale, and the question was whether the uncompleted agreement entered into by the beneficiaries to sell was such an expression of an intention to take the land itself instead of the proceeds of its sale as destroyed the power of sale, and it was held that it was not. Clearly, the decision does not apply here.

Stress was laid at the argument upon the parenthetical expression, but not for speculation,” found in the devise in question, and it was argued that the giving the unfettered title in fee to the grandson will run counter to the expressed wish of the testator. But I think this argument misconstrues the force and purpose of that expression. It was not relied upon by the testator to limit the estate given to his son. That was done by vesting it in the trustee for the life of the son and until the grandson attained twenty-five years of age. After the death of his son and the arrival of his grandson at the age of twenty-five years, it was his clearly-expressed will that the grandson should have an unfettered fee-simple. The true office of the expression in question, as I read the will, was to express one of the reasons which influenced the testator in making this provision for his son and grandson, and for limiting the son’s estate therein.

I will advise a decree in accordance with the foregoing views.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Grace E. Davis v. John J. Lowden, guardian of Lester Roscoe Davis.
    [Filed October 30th, 1897.]
    1. It is provided by statute that, until dower be assigned to her, “it shall be lawful for the widow to remain in and to hold and enjoy the mansion-house of her husband, and the messuage or plantation thereto belonging, without being liable to pay any rent for the same.” Decedent, with his family, occupied part of his building as a dwelling, and rented the remainder as a store to a firm of which he was a member, and as a dwelling for his copartner. — Held, that he had not been in such possession of the portion of the building so rented as would enable his widow to remain in'pos¡3éssion thereof under the statute.

      2. Where a widow has signed a lease to a third person for premises belonging to deceased’s estate, under which the tenant has taken possession and remains in possession, she is estopped from claiming the whole of the rents of such leased premises under her right of quarantine, although the lease was never executed by the executor or by the guardian of the minor heirs, it having been acquiesced in by them.
    Bill for dower. Heard on pleadings and proofs.

      Mr. Patrick H. Gilhooly, for the complainant.

      Mr. Joseph Cross and Mr. John J. Lowden, for the defendant.
   Pitney, V. C.

This is a bill by a widow against the heir-at-law of her husband asking that dower be set off to her; also asking for rents and profits of premises in which she claims a quarantine, until dower shall be set off.

The facts are as follows: The husband, Lester Davis, died on the 23d of June, 1896, testate of a will in which he gave to the complainant $2,000 in addition to her right of dower in his real estate. He devised all the rest of his estate, real and personal, to his son, Lester Roscoe Davis, an infant under the age of fourteen years, the issue of a prior marriage.

The testator died seized of several pieces of real estate, none of which, as appears from the evidence and statements of counsel, was of any considerable value, except a lot of land on the corner of Third and Fulton streets, in the city of Elizabeth, upon which stood a large building, fifty feet front by-feet deep, three stories high. The main floor, to the full width of fifty feet, was designed and used as a mercantile store and salesroom. The second and third floors were designed and used mainly for dwellings, but one or two rooms on each floor were used for storage of goods in connection with the store below. The dwellings were reached by two routes — one an open stairway from the centre of the open storeroom, and another a private stairway leading from Fulton street at the side, furnished with two door-bells — one for the second, and one for the third floor. The dwelling-rooms on the second floor and two of those on the third floor were occupied by Mr. Davis and his family, and the remaining dwelling-rooms on the third floor were occupied by Mr. Jayne (his business partner) and family.

Mr. Davis erected this building about the year 1890 or 1891 for his own use, and designed and arranged it as above stated, and about that time he entered into a contract of partnership with Mr. Jayne for the carrying on of a hardware and paint business. The whole building, with stable, &c., in the rear, was rented to the firm of Davis & Company, composed of Mr. Davis and Mr. Jayne, at $1,000 a year, with the understanding that each partner was to have the privilege of living in the dwelling-rooms over the store in the manner above stated.

At the death of Mr. Davis, in June, 1896, his partner, as survivor, continued the business and'arranged with the executor to purchase all of Mr. Davis’ interest in the business, and, by a contract with the executor, rented the premises (except the living-rooms that had been occupied by Mr. and Mrs. Davis), for five years, at $750 a year.

Mr. Lowden was at that time the counsel for the executor, and under the mistaken notion that the executor had power to execute a lease for the premises, he prepared a lease from the executor and Mrs. Davis, the complainant, as widow, to Mr. Jayne, for the whole premises,

“excepting the nine rooms on the second floor and the two rooms on the third floor, which are now in the use and occupation of the widow and family of the said deceased,”

for the term of five years from the 11th of August, 1896, at the rent of $750 a year, in monthly payments of $62.50 on the 11th day of each and every month. The lease provided that the widow and family of the deceased should have the right and privilege of keeping coal and wood in the cellar for their household use, and a right of way and the use of the stairway. It further provided that the apartments of the widow should be heated as theretofore by the steam-heating apparatus then in the said building, without expense to the widow and family of the deceased. There was a further provision that in case the widow and family chose to vacate the premises reserved for them, the lessee, Jayne, would take them at the rent of $250 a year. Then follows this i

“It is hereby understood by and between the parties hereto that the rents hereby reserved and made payable to the said Mack, executor as aforesaid, shall be divided, after payment of lawful charges against the same, between the parties of the first part in the proportions to which they may be entitled by law, and that payment to the executor shall operate as a release of all liability on the part of the party of the second part for division of payment.”

This lease was executed by Mrs. Davis, the complainant, and delivered to Mr. Lowden for the signature of the executor and Mr. Jayne. Then, upon consideration, Mr. Lowden concluded that the executor had no power to make such a lease, and himself afterward took out, from the orphans court, letters of guardianship of the infant; and, without any formal lease being executed, he has, as such guardian, acquiesced in and approved the lease just referred to.

One month’s rent of the premises ($83) was paid by the executor to the complainant, and after that various sums were paid to her monthly, up to and including November, 1896, aggregating, with the first payment of $83, $318. For this sum the complainant receipted, with this clause added :

"I also agree that if my dower interest should not amount to said sum of §318, or such sum and such oth er subsequent payments as may be made to me, that the excess over my dower interest thus received shall be paid out of the legacy to me in the last will of said Lester Davis, deceased.”

The widow now claims by her bill that she is entitled to the whole of the rents of the store and dwelling until dower is actually admeasured and set off to her, basing her claim upon the second section of the Dower act, which provides

“that until such dower be assigned to her, it shall be lawful for the widow to remain in and to hold and enjoy the mansion-house of her husband and the messuage or plantation thereto belonging, without being liable to pay any rent for the same.” Gen. Stat. p. 1276.

Three questions arise upon the case and were discussed by counsel:

First. Did the first floor and the stable and building in the rear, which were occupied by the firm of L. Davis & Company for mercantile purposes, form a part of the dwelling? Are they included in the language “ mansion-house of her husband” or in the language “ messuage thereto belonging ? ”

Second. If so, then was the husband in such possession of ithem that the widow could be said to “ remain ” in possession ¡thereof, and thereby bring herself within the terms of the act?

Third. What effect does her signature of the lease above recited have upon her right under the second section of the Dower act above quoted ?

The first question is not without difficulty. The.word “ messuage,” as used in Magna Charta and all the older authorities, meant simply a mansion-house. It has been extended by later use to include other structures; but, so far as I am able to find, the structures which may be properly included within its meaning are such only as are useful in making the occupation of the mansion-house itself more comfortable and beneficial. See Jac. L. Dict. and Bouv. L. Dict. tit. “ Messuage.” In the Encyclopedic Dictionary the definition is, “ a dwelling-house with the adjacent buildings and curtilage appropriated t.o the use of the household; a manor-house.” To the same effect is the Century Dietionary.

The language of our statute is broader than that of Magna Charta in that it gives the right to “remain in, hold and enjoy the mansion-house of her husband, and the messuage or plantation thereto belonging.” In the older cases it was held that under the term “ messuage ” a small quantity of land might be included. In our statute the word is used in the alternate— “messuage or plantation” — indicating that the legislature had in mind a small piece of land, such as a garden or yard, rather than a building.

In Indiana (Williamson v. Ash, 7 Ind. 495) it was held, in a case precisely like the one in hand, that the widow was not entitled to quarantine in a storeroom. The report states that Isaac Ash owned a building, erected and used in parts for two purposes — -one part for a dwelling and one for a mercantile .storeroom. After his death his wife continued to occupy the dwelling-house. The heirs took possession of and rented the storeroom. After a year or more the dwelling and storeroom were set off to her as dower. Then she sued Williamson, who had been the tenant of the heirs, to recover the rent of the storeroom from the time of her husband’s death. The Quarantine act in force in Indiana at that time was this :

“ Until such dower shall he assigned, it shall he lawful for her to remain and continue in the mansion-house and messuage thereto belonging, without being chargeable to pay the heir any rent for the same.”

The court held that “ the right to occupy the dwelling did not extend to the storeroom. It was not appropriated to nor in any way necessary for the use or convenience of the dwelling-house,” citing Grimes v. Wilson, 4 Blackf. 331, where the court used this sensible language: “It is difficult to define with precision the signification of the legal term messuage. Authors have differed in their understanding of its import. The best writers, however, represent it as synonymous with house, and as embracing within its meaning an orchard, garden, curtilage, adjoining buildings and other appendages of a dwelling-house.” By this, I understand, is meant something which renders the occupation of the dwelling as such more comfortable and beneficial. This definition excludes a store and salesroom. The report of Williamson v. Ash does not state whether the- storeroom in that case was under or adjoining the dwelling-rooms, but I am unable to perceive that the relative location of the rooms under the same roof makes any difference, since it is well settled that there may be separate ownership as well as tenancy of different floors of the same building.

But I do not find it necessary to determine this question, as I conclude that the complainant must fail upon the second question, the resolution of which against her is fatal to her claim.

The first floor was clearly in the possession of Mr. Davis and his partner, Jayne, as partners, and such possession was held by them, not as ordinary tenants in common, but as joint tenants, with right of survivorship in trust for the purposes of the partnership. So that when Mr. Davis died his partner had an actual right as his survivor to the possession of those premises for some considerable period. The only question is for how long. The case shows that there was no written lease between the parties, and the evidence does not disclose that there was any particular term fixed. There were written articles of partnership, which, however, were not produced. The presumption from the facts as shown would be that the term would continue at least during the term of the partnership. In the absence of the element of partnership the presumption would be that the holding was from year to year, to be terminated on three months’ notice. And it seems to me that this presumption is not necessarily overcome by the fact that the partnership was liable to be dissolved by the death of one partner, and in fact was so dissolved during the term. Such dissolution was only to the extent of preventing the surviving partner from making new contracts which should bind the firm. He still had the right, as surviving partner, to the possession of the partnership assets for the purpose of winding up the partnership affairs, and among those assets was the right of possession of this store. And it seems to me that, as a matter of necessity, that right of possession must continue long enough, at least, to enable him to wind up the business, he, of course, continuing to pay the rent.

I find it quite impossible to hold that the heir-at-law had the right to the actual possession of the premises immediately upon the death of his father, since the right on the part of the surviving partner must be held to be exclusive of the right of the heir-at-law and also of the widow. I am unable to see how the testator can be said to have had such a possession of the storeroom floor as that his widow can be said to “ remain” in possession. It seems to me that the situation is precisely the same as if the husband had leased the premises to a third person.

That being the situation, it seems to me that there can be no quarantine of the part so leased. The language of the act, “ to remain in and hold and enjoy,” indicates a continuation of the actual possession and occupation of the husband, and confines the quarantine to houses and lands in his actual use and occupation, and hence necessarily excludes those not so in his actual use and occupation, and also excludes the idea of a constructive possession by a reception of the rents of leased premises. Such 1 understand has always been the construction put upon it.

The words “ remain in,” found in our statute, are taken from Magna Charta, ch. 7, “ et maneat in capitali messuagie mariti sui,” and are therefore to be accorded the same meaning as has been given to the same words in that instrument.

I have examined all the English authorities (1 Co. Litt. 34b; 2 Co. Inst. 16, 17; Bac. Abr.; Com. Dig.; Vin. Abr. tit. “Dower”) and can find no warrant for the notion that the widow is entitled to quarantine of anything of which her husband was not, at his death, in the actual possession and occupation as distinguished from possession by the receipt of rents, or that the right of quarantine could, under any circumstances, include the right to receive the rents of premises held under lease from the husband. Lord Coke (1 Co. Litt. 34b) says:

“ This continuance of the widow in the capital messuage is, in law, called a quarantine. * * * If the heir or other tenant of the land put her out she ■may have her writ de quarantina habenda.”

See 1 Rop. H. & W. 386; 1 Bright H. & W. 363; Fitz. N. B. 162, 363, where we find this language:

“The writ of quarantina habenda lieth where a man dieth seized of any messuage and lands, &c., and immediately after the death of the husband, the heir, or he who ought to have the lands after his death, mil put the wife out of the messuage, &c., then the wife shall have this writ, for by the statute of Magna Charta, ch. 7, the wife shall remain in the capital messuage after the death of her husband by forty days, if it be not a castle.”

In our own reports I can find no intimation of any right of the widow to hold, as a part of her quarantine, lands not in the actual use or occupation of her husband at his death or of any right to demand and receive rents of rented properties.

In Den v. Dodd, 1 Halst. *447, Chief-Justice Kinsey (at p. *450) says: “We are warranted in saying that, although the widow, when out of possession, cannot legally enter until her dower is assigned to her, yet, when she came upon the property during the lifetime of her husband and remained there subsequent to his death, the heir, or one claiming under him, cannot maintain an ejectment against her and oust her, without assigning to her that proportion of the estate to which she is legally entitled, and that is the point to which the present defence is limited.”

In Den v. Bilderback, 1 Harr. 497 (at p. 506), Mr. Justice Ford uses this language: “ The doctrine stated in the case of Den v. Dodd, that a widow, remaining in possession from her husband’s death, shall have her quarantine continued until dower is assigned to her, and cannot be dispossessed by ejectment till that is done, either at the suit of the heir or any other person-claiming under the husband subsequent to the marriage, was founded on the common law, and two years afterwards the same principle was enacted by statute (Rev. L. p. 397 § 21), that until dower be assigned to the widow it shall be lawful for her to remain in the mansion-house and plantation without rent; but neither of them compels her to remain; she may give up the possession voluntarily, and go when and where she pleases, it being a personal privilege to herself; and if once she moves out voluntarily and departs, it is gone forever under the statute and her dower is reduced to a naked right, only to be recovered by an action at law.”

In Craig v. Morris, 10 C. E. Gr. 467, it was held by Chancellor Runyon that the widow who continues in possession of her husband’s mansion-house after his death may rent out the same and receive the rents, and that thereby she does not lose her right of quarantine But this right is based upon a continuation of the husband’s possession, and falls short of holding the doctrine contended for by complainant.

I should have supposed the principle above stated to be too-clear for argument but for two cases cited and relied upon by the counsel for the widow, to wit:

Conger v. Atwood, 28 Ohio St. 134; 22 Am. Rep. 362. The head-note of that case is precisely the same as that of Craig v. Morris. The case arose on demurrer to the petition, and one of the allegations of the bill is this: that at the time of the death of the decedent, his son-in-law was occupying the mansion-house and lot under an agreement between them that the decedent should retain his home there as part of the consideration for the use and occupation of the premises, and should receive from Dressier, the son-in-law, certain rents besides; and by an understanding between Dressier and the administrator that Dressier should pay him a reasonable rent, said use and occupation was continued for some time afterwards, and it was for the recovery of this rent that the action was brought by the widow. There was also a distinct allegation that at his decease the husband owned and occupied the house. The court, in its opinion, quotes the Ohio Quarantine act, and which provides that the widow “ shall remain in the mansion-house of her husband free of charge for one year after his death, if her dower be not sooner assigned her,” and proceeds:

“ Does the petition show a case entitling her to the benefit of this provision ? Some of the averments in the petition are not entirely clear, but no motion having been interposed to make them more definite and certain, we must interpret the petition according to its true import and meaning.
“It is averred that the decedent, at the time of his death, owned and occupied the mansion in question. This averment must be kept in mind in connection with the further averment that the house was also then occupied by another person. The two statements are not necessarily inconsistent, nor does the latter invalidate the former. The more essential inquiry is whether the occupancy of the tenant, under the decedent, interfered with the right of the widow to the exclusive occupancy of the mansion-house after the death of her husband.
“Erom the fact that the rent of the tenant was to be paid partly, by the occupancy of the decedent, it is fairly inferable that the renting to him was at most during the life of the decedent only; and this conclusion becomes incontrovertible, as the case now stands before us, from the fact that after the death of the husband the tenant continued in the mansion, so far as appears, only under an arrangement made by him with the administrator. Moreover, his occupancy terminated shortly after the death of the husband and within the period in controversy. There was then no legal obstacle to the widow’s enjoyment of the mansion-house of her husband as provided by the statute.”

This statement shows that the case was put upon the ground that the husband was in effect in possession at his death, and that the wife’s possession was a mere continuance of his. The decision was by a divided court, and the case had met with varied fortunes in the court below. The conclusion of the court, at the end of the opinion (at p. 369), is as follows: “ The right of a widow to remain in the mansion-house of her deceased husband, as provided by statute, is not restricted to a personal continuance in the house merely, but she is entitled to a reasonable enjoyment of the possession of the premises, and may, therefore, either personally enjoy them or she may rent them, as she may deem best promotive of her comfort.”

I cannot look upon this case, either the decision itself or the reasoning upon which it is based, as sufficient authority to overcome what I consider to be the clear law of this state.

The other case relied upon by the complainant is Orrick v. Robbins, 34 Mo. 226. Mrs. Orrick, the plaintiff there, had been the widow of one Eobbins, who died seized of a tract of land, a dwelling-house and grounds in his actual use and occupation. Adjoining this land, on the same tract, was a field of sixty-six acres which, at Eobbins’ death, was rented out for a moneyed rent and in the actual possession of the tenant. After the death of Eobbins, his widow, the plaintiff, continued to occupy the part of which he died in the actual occupation, without accounting to the estate for any rent thereof. She also received a proper share as dowress of the rent paid by the tenant of the sixty-six acres up to the expiration of the lease. This rent was received by the administrator under a statute of Missouri. He relet the sixty-six acres after the expiration of that lease, and the suit was by the widow to recover the whole of the rent of the sixty-six acres collected by the administrator from the end of the term in existence at her husband’s death up to the time that her dower was actually assigned to her. It should be here stated that the widow, under a statute of Missouri, elected to take what is there called a “ child’s share ” in place of her dower, and the principal question discussed in the briefs of counsel (printed in full in the report) was whether or not the right of quarantine was a mere incident to the right of dower, so that when the widow abandoned her right of dower and took in its place a child’s share in the estate she deliberately abandoned her quarantine. The argument against the widow was that her right of quarantine fell with her right of dower. The question whether or not she was entitled to quarantine in the land of which her husband was not in the actual possession and occupancy at the time of his death was not discussed by counsel. The court, in dealing with it, after holding in the widow’s favor on the question discussed, uses this language: “If the owner of a plantation rent out a particular field or part of it, that is not necessarily, a separation of the field or part from the plantation. Whether it be or not is a question of fact for determination in each case. If it be not permanently separated, yet the widow’s right being merely possessory, and she being unable to have actual possession during the term created by the husband, she cannot have her quarantine of such rented part until the term shall expire, and then her right would immediately attach. In this case, therefore, we think the widow’s right in the rents collected by the administrator to be as follows: for the rents received for the unexpired term created by the husband, she was entitled only to a part thereof, in proportion to her general interest as dowress in the real estate, and from the time of the expiration of the term created by the husband, at the time of the assignment of her dower, she was entitled to the whole rent.”

This reasoning seems to be inconsistent with itself and not satisfactory. If the widow was entitled to any quarantine in the sixty-six acres held under a lease from her husband at the time of his death, she was entitled to the whole. It is to be observed that the judgment in this case was a reversal of that appealed from.

In the later case of McClurg v. Turner, 74 Mo. 45, it was distinctly and directly held that a widow could not have quarantine of a dwelling which was not in her husband’s possession or occupation at his decease.

For these reasons I decline to follow those authorities and hold that the widow is not entitled, under a right of quarantine, to receive the rents from the storehouse or that part of the building occupied by the tenant.

But if I am wrong in this, I am unable to see how she is to escape the result of the lease signed by her. That was a distinct letting of the premises in conjunction with the executor, who was supposed at the time to represent the heir-at-law, to a third party for- a term of five years, under which that, person has remained in possession ever since; and although that lease was never executed by the executor or by the guardian of the heir-at-law, yet it has been acquiesced in by them and the tenant has been and still is holding under it. And I think that it must be held to have the same force and effect against the widow as if the proper party had joined with her therein. And if so, then she voluntarily joined in a conveyance of the premises in which she recognized the right of the heir therein. Such a conveyance was entirely inconsistent with the existence of her quarantine.

I will advise a decree in accordance with these views.


text:
    Sara L. Flemming v. Peter Lawless et al.
    [Filed November 18th, 1897.]
    Defendant pleaded payments, alleging “for which, he has vouchers ready to be produced and proved,” whereupon complainant, ignorant of the existence of such vouchers, procured an order requiring defendant to produce “ the receipts, vouchers and other evidence in writing of the payment” of the sums as set forth in the answer. Defendant produced a consolidated receipt, purporting to be for four separate payments, covered by separate receipts, but did not produce a certain separate receipt that he then had. — Held, that he could not afterwards use the separate receipt as evidence, in view of the common-law Practice act (section 157), providing that a paper shall not be given in evidence where a party has refused to comply with the order to produce it.
    Motion, on petition, to open a decree of foreclosure and sale.

      Mr. Halsey M. Barrett, for the petitioner.

      Mr. Washington B. Williams, contra.

   Pitney, V. C.

This is a motion, on behalf of the defendants, to open a final decree in this cause made on the 25th day of January, 1897, fixing the amount due — $5,507—upon the mortgage set out in the bill, and $1,558.85 for taxes on the mortgaged premises paid by complainant, and decreeing a sale to pay the same. From that decree an appeal was taken to the court of errors and appeals, and the cause was argued at the last June Term thereof. Before the decision thereof by that court, upon application of the defendants, the court sent the record, back to this court, in order to enable this court to deal with the application upon its merits.

The application, made by petition, is based upon the discovery by the defendant of a piece of documentary evidence, to wit, a receipt for a payment on account of the taxes, included in the decree, alleged to have been made to the complainant’s agent by the defendant, and which receipt was not in the possession or control of the defendants when the cause was tried in this court.

The opening of a decree, fairly obtained after a hearing, in which both parties have been fully heard, is a matter resting in the discretion of the court, to be exercised with care and caution and in such manner as to promote justice.

Two things must, of course, be proven by the defendants in order to entitle them to the ear of the court — first, that the alleged receipt is genuine, and second, that it was not within their possession or control at the time of the hearing in this court, and that such want of possession and control was without fault on their part.

Counsel for the complainant makes a preliminary objection to the granting of the petition, based in part upon the terms of the one hundred and fifty-seventh section of the common-law Practice act, and in part upon the misconduct of the defendants, and contends that the defendants are absolutely debarred by the terms of the last clause of said act from now offering said receipt in evidence, even if its genuineness were proven and it were also proven to the satisfaction of the court that it was not in their possession or control at the time of the hearing before this court;, and as an additional and supporting ground, he contends that, without the aid of that act, the defendants are not entitled to the ear of the court because they have disobeyed an order of the court with respect to the very receipt in question, and are in contempt therefor.

The consideration of this question renders it necessary to recur to some of the facts and circumstances which preceded the hearing in this cause.

The bill alleges that the owner of the mortgaged premises failed to pay the taxes, water rents and other municipal charges levied by the city of Jersey City upon the premises, and permitted them to fall in arrear to a large amount; that the arrears were finally adjusted by a commission under what is called the Martin act, and that the complainant, as mortgagee, was obliged to pay several large sums for the taxes so adjusted, in order to save the premises from being sold, for which she claims a first lien upon the premises. The amount so paid was alleged in the bill to be $3,272.70 in three separate payments, in the months of April and May, 1890, and the further sum of $1,512.56 on the 13th of October, 1891, making in all $4,785.26.

The defendant Lawless set up in his answer that the complainant had received the sum of $1,200 from one Vorrath in payment of a part of the mortgaged premises conveyed by the defendant and released by the complainant, and that that sum should be applied either to the mortgage or arrears of taxes, without indicating which. That .payment of $1,200 was admitted by the complainant at the hearing.

The defendant Lawless set up further payments especially on account of the taxes, as follows:

“The defendant Peter Lawless admits the payment of three thousand two hundred and seventy-two dollars and seventy cents for taxes, water rents and other municipal charges by Jersey City, as set forth in said bill, as having been made by the complainant [ignoring the alleged payment of $1,512.56, October 13th, 1891], but avers and insists that he paid and reimbursed said complainant for such payment made by her, and paid in excess of said sum to her or her attorney, James Flemming, now deceased, for said taxes, water rents and municipal charges the sum of three thousand two hundred and twelve dollars and thirty cents, for which he has vouchers ready to he produced and proved The said defendant Peter Lawless admits that there is due on the mortgage of the said complainant the sum of nine hundred and forty-nine dollars and fifty cents, without interest, which interest is to be added and which sum he is ready to pay to the complainant in satisfaction of her said mortgage.”

It thus appears that Lawless, in his answer, alleged payments on account of taxes, &c., of $3,272.70, plus $3,212.30, making $6,485.

On the 23d of November, 1895, and before the cause had been referred for trial, the complainant presented her petition to the chancellor, setting out a brief résumé of the proceedings, and then follows this allegation :

“That in the answer of Peter Lawless, Julia Bathe and Catherine O’Neill, the said defendants allege that they paid to James Flemming certain sums of money for taxes and on the mortgage in question, and that there is now- due on said mortgage and taxes the sum of nine hundred and forty-nine dollars and fifty cents, with interest, and that they have certain receipts, vouchers and other evidences in writing of the payment of the said sums; that she is ignorant of any such receipts for the amounts above set forth.”

The petition further alleges that the petitioner had requested the defendants to permit her to inspect and examine any receipts or other evidences in writing of such payments, but that the defendants had refused. It prayed that an order might be made directing the defendants “to produce the said receipts, vouchers or other evidences in writing of the payments of the said sums of money and leave the same for inspection and examination in such a manner as the court might think fit.

Upon that petition an order was made on the 2d of December, 1895, reciting the petition and directing

“ that said defendants do, within five days from the date of service upon them of a copy of this order, which need not be certified, produce receipts, vouchers or other evidences in writing for all the payments claimed to have been made in their answer, on the mortgage in question, and also the receipts, vouchers and other evidence in writing of the payment by them or any of than to James Flemming of three thousand two hundred and seventy-two' dollars and seventy cents, and the sum of three thousand two hundred and twelve dollars and thirty cents, as set forth in said answer, and leave them with Isaac Eomaine, Esquire, one of the masters of this court, for the space of ten days, subject to the examination of said petitioner.”

This order was served upon the defendants’ solicitors on the 7th of December, 1895. At that time the defendant Lawless alleges and now admits that he had in his possession, or in that of his counsel, a Mr. O’Sullivan, of New York, four separate receipts (one of which is the one lately discovered and is the foundation of the present petition), purporting to be signed by James Flemming, the deceased husband of the complainant, for four several payments on account of moneys paid by the complainant for arrears of taxes on the mortgaged premises, which receipts were known and called at the hearing of the cause the “separate” receipts; and also, in addition to those papers, a single paper purporting to be signed by Mr. Flemming, which was a consolidated receipt, purporting to be for the four separate payments covered by the separate receipts, stating them all in detail, with their dates, which consolidated receipt was known at the hearing as the omnibus or “ suspect.”

On the 11th of December, 1895, the defendant, by his solicitors, in obedience to the order of December 2d, deposited with Master Romaine this consolidated receipt or “suspect,” but withheld from such deposit the four separate receipts. At that time, however, the solicitors of the defendants were aware of the alleged existence of the four separate receipts.

In the latter part of December the complainant presented another petition to the chancellor, in which she set forth that in pursuance of the order of December 2d the defendant had deposited with Master Romaine the consolidated receipt, and that the petitioner’s solicitors had examined it and were not satisfied with the authenticity of the signature and desired to have the same photographed and examined by an expert in penmanship. The petition set out that the petitioner had requested the defendants’ solicitors to consent to have the same photographed and that they had not granted the request, and prayed that the petitioner be permitted to have the document photographed and that the paper itself be impounded and left in the possession of the master.

On the filing of that petition an order was made on the 23d of December on the defendants to show cause why the prayer of the petition should not be granted. This petition and order to show cause were served upon the defendants’ solicitors, and on the return-day, to wit, the 30th of December, 1895, the chancellor made an order (which was served on .defendants’ solicitors on the next day) that the receipt be impounded in the hands of the master till the further order of the court and complainant be permitted to cause the same to be photographed.

Shortly after this, and early in January, 1896, Mr. O’Sullivan brought the four separate receipts ” to the office of the solicitors of defendants, and had a consultation with them as to whether those as well as the consolidated receipt should not be delivered to the master. The solicitors of the defendants advised and urged the lodging of the separate receipts in the hands of the master and Mr. O’Sullivan opposed it. They went together to the master’s office with the receipts in their hands, and after talking together Mr. O’Sullivan declined to leave the receipts with the master, saying he would hold them to be used as a reserve to surprise the complainant, and took them with him to New York. He swears that he subsequently changed his mind and started with the receipts to Jersey City, for the purpose of lodging them with the master, and lost them under the circumstances stated in the opinion heretofore filed in this cause.

At the hearing the defendants called upon the complainant to produce all papers, writings and books of account, checks, check-stubs, &c., in her possession belonging to James Flemming, the deceased husband of the complainant, which might bear upon the questions involved, and in pursuance thereof the complainant did produce all such papers, and from them it abundantly appeared that two of the payments claimed in the four separate receipts and mentioned in the consolidated receipt, viz., the first and fourth payments, were actually made to Mr. Flemming. The receipt by Mr. Flemming of these two payments was shown by entries of the amounts on the obverse side of the stubs in his check-books, and by entries in his bank passbook; also by copies of the corresponding receipts, to wit, the first and fourth receipts, found among his papers, and such payments were promptly admitted by the complainant.

This confined the dispute at the hearing to two payments claimed by the defendant, to wit, one of May 6th, 1890, for $1,685, and the other of September 15th, 1891, for $2,600. The proof of these payments rested upon the “ suspect ” receipt, and the direct evidence of payment in the testimony of Peter Lawless. The opinion of the court upon this evidence was that the “suspect” was, in effect, a forged receipt, and that the evidence of Mr. Lawless was not reliable. 36 Atl. Rep. 502.

The petition of the defendant now under consideration states that in the month of September last, after the argument of the appeal, one of the two receipts which cover the disputed payments, to wit, that of September 15th, 1891, for $2,600, was received by the solicitors of the defendants by mail, enclosed in an envelope with an anonymous letter, and the application is to open the decree and be permitted to prove this receipt, which, as we have seen, is one of the four receipts which were in defendants’ possession at the time the “suspect” was lodged with the master.

The ground now taken by the complainant is the same as that urged in the court below against the receipt of secondary evidence of the contents of these receipts, and is twofold, viz., that the defendants’having been ordered by the chancellor to deliver the receipt in question to Mr. Romaine when it was in their possession, and, having refused to do so, are in contempt of the court in that respect, and cannot now be heard to ask to be relieved from the decree of January 25th, 1897, in order to be permitted to put the paper in evidence, and, further, are now debarred by the act of the legislature, before referred to, from offering the same in evidence. The language of the act is: The court may order either party to give to the other, within a specified time and under such terms as may be imposed, an inspection and copy, or permission to take a copy of any books, papers or documents in his possession or under his control containing evidence relating to the merits of the action or proceeding, or of -the defence thereto, and if compliance with-the order be refused, such books, papers or documents shall not be given in evidence in such action or proceeding, and the court may punish the party so refusing as for a contempt of the court."

No question is or can be raised but that the act in question applies to the court of chancery. The language of that and the following section clearly shows that it does apply to the court of chancery.

The power of the court to make the order of December 2d, 1895, and the propriety of making it in this case, and that it was made in due course of practice, was not and indeed cannot be questioned. Such power was a part of the original jurisdiction of the court. 2 Dan. Ch. Pr. 1817; Hare Disc. 239 et seq. §§ 7, 8; 2 Madd. Ch. Pr. 391, 392; Gresl. Eq. Ev. 26 et seq., where it is shown that wherever a defendant in his answer makes profert of documents it is a matter of course for the complainant to have an order on the defendant to produce the same for inspection by complainant, and if defendant shall fail so to do he will be in contempt of the court and debarred from making any further motion in the cause.

The doctrine was applied in Apthorpe v. Comstock, 1 Hopk. 143, where the bill prayed an injunction against an action of ejectment based upon a deed which complainant alleged to be forged, or fraudulent, or otherwise invalid; and a motion was made that the deed might be deposited with an officer of the court for the inspection of the complainant, his witnesses, &c. An elaborate examination of the authorities was had, and the motion to deposit the deed for inspection was granted, and a motion to dissolve the injunction restraining the action at.law was refused, and both orders were affirmed on appeal. 8 Cowen 386.

And in this court Vice-Chancellor Van Fleet, in Brown v. Farley, 11 Stew. Eq. 186—a suit for partition — ordered the production by the defendant for inspection by the complainant of a deed under which the defendant claimed title to the whole of the .premises, and on failure to obey the order, debarred defendant, by an order, from offering the same in evidence on the trial of a feigned issue to determine the title.

The power was also declared to be inherent in a court of law by the supreme court in Hilyard v. Township of Harrison, 8 Vr. 170 (at p. 173).

It will thus be seen that the statute in question is a mere declaration of a power which already existed in the Court, and, in addition, provided a peremptory penalty for disobedience, which the court might or might not have enforced in a particular case without the mandate of the statute, viz., debarring a party who had disobeyed the order from offering the evidence which he had refused to produce at the time and place designated by the court.

It is to be here observed that the defendant by his answer makes profert of the vouchers in question, using this language, for which he has vouchers ready to be produced and proved.” I understand the rule to be that a party who makes such profert must produce the documents at such time and place as the court shall direct. He cannot choose his own time and place.

Upon this state of the law and the facts, the single question is whether or not the order to produce herein, included the voucher here in question. It is to be observed that the complainant was, prima fade, without knowledge of these papers. They do not purport to be signed by her, but by her agent, who was dead. There is no proof or reason to suppose that she ever saw the voucher here in question, or any copy of it, or had any reason to believe that it was in existence. No description of •the vouchers was given in the answer, so that she was entirely in the dark as to their description. She was not only unable to describe them, but there was no occasion for her to attempt to describe them in her petition.

It is to be observed that the petition of complainant set out the allegation of the answer that the defendants have in their possession “certain receipts, vouchers and other evidences in writing of the payment of the said sums” and that the petitioner is ignorant of them. And it further appears that it was proven on the trial that the petitioner’s solicitor had applied to the solicitors of the defendants for the inspection of these papers before this petition was presented, and had been refused such inspection. The prayer of the petition is “to produce the said receipts, vouchers or other evidences in writing of the payments of the sum of $3,272.70 and the sum of $3,212.30,” as set up in the answer. The order is, first, generally, to “produce receipts, vouchers or other evidences in writing for all the payments ■claimed to have been made in their answer on the mortgage,” and “ also the receipts, vouchers and other evidences in writing of the payment by them or any of them to James Flemming of the sum of $3,272.70 and the sum of $3,212.30, as set forth in said answer.” It was, in effect, this, You say in your answer that you have vouchers to prove the payment of two certain sums of money to James Flemming; now you are ordered to produce those vouchers. There can be no doubt, then, that the order was to produce the very vouchers which the defendant in his answer said he had in his possession ready to be produced and proved. And the effect of it, in my judgment, was plainly the same as if the order had read “all the receipts, vouchers and other evidences in writing.” I am unable to adopt the ingenious argument of the learned counsel of the defendant that the order was only to produce receipts and vouchers generally, and not all the receipts and vouchers. For reasons just stated, I hold the ■contrary. There can be no doubt that the receipt now proposed to be offered and proven was one of those covered by the order. That being so, it follows that there was a distinct and direct refusal to obey the order of the court of December 2d. Moreover, it was a refusal which it was impossible for the petitioner to deal with at the time by punitive proceedings. As I have observed, she had no knowledge of the existence of the other -individual receipts. She did not know how many receipts the defendants had. It was, indeed, testified by the defendants that they were shown to Mr. Romaine on the occasion when the discussion occurred in his presence as to the propriety of lodging them with him. But Mr. Romaine swears that he did not see them. He certainly was furnished with no description or copy of them, and the interview was in the absence of the complainant’s solicitor and without notice to him, and it does not appear that Mr. Romaine informed complainant’s solicitor of the occurrence. This leaves the complainant entirely blameless for not proceeding and obtaining, as was done in Farley’s Case, an adjudication of contempt for disobeying the order of the court. She was fully justified in proceeding to prepare her case to meet the alleged payments upon the basis that the consolidated or suspected receipt was the only voucher the defendants had for these alleged payments. She did proceed in that respect, at great expense, and succeeded.

It seems to me, for these reasons, that the case is brought directly within not only the letter but the equity and spirit of the statute, and that the decree should not be opened and defendant permitted to produce and offer proof in support of the genuineness of the receipt, and that, in the absence of the statutory prohibition, the court ought, in the exercise of a sound discretion, to refuse to open the decree.

In the Farley Case the defendant was prohibited by the order of this court from offering the deed in evidence before the trial judge and jury on the trial of the feigned issue, and was therefore defeated. He was afterwards indicted for forgery and acquitted, and then applied to the court for an order vacating the order adjudging him guilty of contempt of court and dissolving the injunction against the production of the deed, also directing the setting aside of the verdict on the feigned issue, and directing a new trial of the issue; and his application was denied simply on the ground of his disobedience of the order of production.

The only difference between Farley’s Case and this is that in Farley’s Case there was a direct adjudication of contempt and a direct order that he should be debarred from offering the deed in evidence on the trial of the issue: This last order was necessary, because the trial of the cause was before a judge of a different court. But I apprehend that if the hearing of the cause on the merits had been in this court, before the same judge who made the order to produce and deposit the deed, he would have been at liberty to exclude evidence, either original or secondary, of the deed without any adjudication of contempt.

For these reasons I shall advise that the prayer of the petition of the defendant herein be denied, and the petition be dismissed with costs.