text:
    William A. Brearley et al. v. Mary Ann Brearley et al., Executrix and Executor of Samuel Brearley.
    Where a testator gave to his wife absolutely a provision in real and personal estate, and also an annuity of $400 during life, to be paid by his executors, and then empowered the executors to sell the residue of his real estate, and to rent it till sold, directing them to invest the proceeds of the sales of real and personal estate, and all moneys received by them from any other source, until needed for carrying into effect the provisions of the will, and then gave to each of his two children $500, to be paid out of the first moneys in hands of the executors, after paying debts, funeral expenses, and providing for the bequest to his wife, and then directed the residue of personal estate remaining in the hands of the executors at his wife’s decease, and all the real estate then remaining unsold, to be divided equally between his two children, and the personal estate being more than sufficient to pay the debts, expenses, legacies, and provide for the annuity. Held — ■
    1. That the children were not entitled to the surplus of the personal estates till after the death of the wife.
    2. That the executors had a mere naked power to sell so much of the real estate as might be necessary to answer the specific purposes of the will, but no interest in the land itself, and that the title thereto, at the testator’s death, vested in his two children as heirs-at-law.
    3. That, there being sufficient personal estate to pay debts, expenses, legacies, and provide for the annuity, the executors had no further power over the real estate, and must account for the rents received, and the proceeds of land sold, before filing the bill.
    4. That the rents and proceeds of sales of the real estate did not, by the doctrine of conversion, become personal estate in the hands of the executors.
    5. That, where the intention of the testator violates no principle of law or morality, it is the only guide in giving effect to a will, notwithstanding it may be unreasonable ; and, where the intention is clear, the situation of the testator, or of his family, or property, will not be taken into consideration : but where, taking the whole will together, the intention is not clear, such a construction will be adopted as will relieve against a hardship, and lead to a just and proper result.
    This bill was filed to obtain a judicial construction of a will. The facts of the case, so far as necessary for its clear understanding, appear in the opinion of the Chancellor.

      Messrs. Beasley and P. D. Vroom, for complainants.

      Messrs. Lanning and W. Halsted, for defendants.
   The Chancellor.

Samuel Brearley, late of the city of Trenton, deceased, by his last will and testament, bearing date the 25th day of September, A. D. 1846, made the following disposition of his estate:

Fii’st. He ordered the payment of all his debts and funeral expenses, as soon as convenient after his decease.

Second. He gave to his wife, Mary Ann, in fee simple, his house and lot of land in Trenton, where he resided at his decease, in lieu of dower.

Third. He gave to his said wife all the furniture and household goods, and his library, as the same were in his house at his death.

Fourth. He gave to his said wife the annual sum of $400, to be paid to her by his executors, in quarterly payments of one hundred dollars each, from the time of his decease, during the term of her natural life.

The fifth clause is in these words : It is my will, and I do hereby, for that purpose, authorize and empower my executors hereinafter mentioned, to sell all my estate, both real and personal, excepting such parts thereof as are disposed of, either at public or private sale, as they may deem advisable ; the said real estate to be rented at their discretion, until such time as a fair price can be obtained for the same, or any part thereof, and when the same, or any part thereof shall be sold, to make, execute, and deliver unto the purchaser or purchasers thereof, good and sufficient deed or deeds of conveyance in fee simple for the same. And I do further devise and request my said executors, that all the moneys arising from the sales of my real and personal estate, or which shall come to their hands from any other source or sources whatsoever, shall be placed at interest on good freehold security, at the discretion of my executors, until such time as the same, or any part thereof, shall be needed for the purpose of carrying into effect the provisions of this my last will and testament.”

Sixth. He gives to his daughter, Eliza Ann English, wife of Thomas R. English, and to his son, William Armstrong Brearley, the sum of five hundred dollars each, to be paid them-by his executors out of the first moneys they shall have in hand from his estate, after paying his debts and funeral expenses, and providing for the bequest in favor of his wife.

The seventh clause of the will is in these words: It is my will, and I do hereby order and direct, that the residue of my personal estate remaining in the hands of my executors at the decease of my wife, Mary Ann, and all my real estate which shall remain unsold at the time of her decease, shall be equally divided between my said daughter, Eliza A. English, and my son, William Armstrong Brearley, share and share alike.”

And he appoints his said wife executrix, and Isaac W. Tanning executor, of his said will.

The bill is filed by the two children named in the will, William A. Brearley and Eliza Ann English, and by Thomas English, the husband of Eliza Ann.

The object of the bill is to obtain a judicial construction of the will.

The complainants insist that, after payment of the legacies, and appropriating a fund sufficient to secure the payment of the annuity to the widow, they are entitled at once to the residue of the real and personal estate; and they further ask, in case the court should be of opinion they are not now entitled to this residue, that the executor and executrix may be decreed to pay them the interest on the said residue, at such times as the same shall arise, and in such manner as shall be deemed right and equitable.

The defendants have answered the bill, and they insist that the complainants are not entitled to any part of the estate, except their said legacies of §>500 each, until the death of the executrix, the testator’s widow. The case is submitted upon the bill and answer.

It appears, by the pleadings, that the said William and Eliza are the only children and heirs-at-law of the testator; that immediately upon the testator’s death the executor and executrix possessed themselves of the personal estate; that since that period they have collected the rents and profits of the real estate, and have sold a small part of the real estate, the proceeds amounting to four hundred dollars ; that they have paid the specific legacies and debts, amounting to three thousand nine hundred and sixty-nine dollars and nineteen cents; that the personal estate is valued at about seventeen thousand dollars, and the real estate at about eighteen thousand dollars.

It was argued, by the complainants’ counsel, that there is nothing in the situation of the testator’s property, nor is anything disclosed or suggested in the circumstances or character of his children, to suggest the propriety of postponing the enjoyment of their, large portion of this estate until the death of the widow.

They are his only children and heirs-at-law. He intended they should have the bulk of his estate, and yet, by. such postponement, they take it upon the happening of an event which may not occur during their lifetime. The widow is the step-mother of these children, and of middle age. The testator did not intend to place his daughter Eliza’s share beyond the reach of her husband, nor was it any want of confidence in his son that induced him to make such a postponement. This is apparent from the consideration that his widow’s death might have followed soon after his own, and yet he makes no provision to place the property, in such an event, beyond the immediate control of his son, or son-in-law. In other respects, the testator seems to have disposed of his property in a manner which is reasonable and unobjectionable, and liberal towards those for whom he was bound to provide.

But, however unreasonable in any respect the will may be, it is the will of the testator we must execute. If it violates no principles of law or morality, the testator’s intention must be our only guide in giving effect to it. We cannot alter it for the purpose of making it more liberal or just, according to our estimate of liberality and justice.

If the language is not ambiguous, and the intention is signified by apt words and phraseology, there is no room for construction. It is not proper for the court first to determine what the will ought to be, and then exercise its ingenuity in producing such a result. The testator has the right, by law, to dispose of his property arbitrarily, and without giving reasons for the disposition he makes of it. If there was any ambiguity of language or phraseology to make it doubtful what the intention of the testafor was, the absence of all motive apparent on the face of the will, or derived from the situation or circumstances of his family, to induce him to make such a postponement, would he entitled to great weight in controlling the construction. But if no such ambiguity exists, it is not entitled to any consideration.

The complainants insist that by a fair construction of the will, the debts and legacies having been paid, and a fund appropriated sufficient to secure the widow’s annuity, they are entitled now to all the estate, real and personal, except that fund; that when the testator directed in the seventh clause of his will, the residue of his estate to be equally divided between his two children, on the death of his widow, the word residue referred to the particular fund appropriated for the annuity, and which necessarily must remain in the executors’ hands until the happening of that event.

In support of this construction, the phraseology of the fifth clause of the will is relied on.

This clause directs the executor and executrix to sell all the real and personal estate not specifically disposed of; to rent the real estate until such time as a fair price can be had for it; to sell and give deeds for it, at their discretion, or any part thereof; and to place out all moneys arising from such sales of his real and personal estate, or which shall come to their hands from any source whatever, at interest, on good freehold security. Then follows this language : “At the discretion of my executors, until such time as the same, or any part thereof, shall be needed for the purpose of carrying into effect che provisions of this my last will and testament.” It is argued that the words “ or any part thereof,” plainly indicate that the testator had in view the provisions of his will which required only a part of his estate, and consequently did not refer to the final distribution of his property, when not a part only would be wanted, but the whole residue, for the purpose; that if a part only of the proceeds of such sales of the real and personal estate should be needed for the annuity, the specific legacies and debts — the directions to the executors being to rent, sell and invest until such time as the whole, or any part, should be wanted to answer the purposes of the will — when a part answers these purposes, the complainants are entitled to the residue.

This is a very critical argument. I think it is satisfactorily answered by a reference to the fact that, in the next clause of the will, the testator gives to his son and daughter each a legacy of five hundred dollars, and the time when they are to receive it, and the circumstances under which it is to be paid, (for it is after all the bequests and legacies are secured and paid,) is the very time, and under the exact state of things, when and upon which they would be entitled, upon the construction insisted, to the whole of the residue, real and personal. The testator directs these legacies of five hundred dollars each, to be paid them, after his debts are paid and after provision has been made for the annuity in favor of his wife. If he intended they should have at that time the whole residue of his estate, except the annuity fund, amounting to upwards of $20,000, how is this particular bequest to them accounted for, and reconciled with such intention ?

But it is further argued that the testator, when he orders and directs the residue of his estate, at the death of his wife, to be divided between his son and daughter, the residue referred to is the fund appropriated by the executors to secure the annuity to the widow.

If this is so, then the testator died intestate as to more than one-half of his estate. The whole estate is estimated at thirty-five thousand dollars. The legacies amount to about fifteen hundred dollars, and the debts and expenses say four thousand dollars. Taking a fund of eight thousand dollars to secure the annuity, and there is upwards of twenty thousand dollars of the estate undisposed of by the will. And again, the testator defines this residue which is to be divided at the death of his widow, to be the personal estate in the hands of the executors at her death, and all the real estate remaining unsold. He meant, then, something more by the residue than the fund referred to.

But I have taken a view of this will which is satisfactory to my mind and will afford the complainants some relief, and which, I think, is in accordance with the general intent of the testator.

This is one of those cases in which a court will anxiously look for something affording an opportunity to relieve against a hardship, which, it is scarcely possible to suppose, was foreseen or contemplated by the testator at the time of making his will. I do not mean to be understood as intimating that mere straws should be caught at, or anything affording a mere apology, for the purpose of granting such relief; but where there is any solid foundation upon which we can reasonably rely to justify a construction which will relieve the hardship, and which is not in opposition to the declarations of the testator, but rather is consistent, and harmonizes with the general tendency and design of the will, and leads to a result which commends itself by its justice and propriety, a Court of Chancery or law will not hesitate to avail itself of the opportunity thus afforded of doing what is consonant with equity, and not opposed to the principles and policy of the law.

There are three objects of the testator’s bounty- — his wife and two children. For his wife he provides first, and liberally, and all the residue of his estate he designs for his children — one of them a daughter married, and the other a son upwards of twenty-one years of ago. What he gives to his wife he places in her hands and at her disposal immediately. What he designs for his son and daughter — an estate amounting to upwards of twenty-five thousand dollars, consisting of real and personal — it is insisted is, by his will, committed to the possession and control of their step-mother and a stranger for no other purpose than merely to accumulate, exposed in the meantime to great expense and risk, and at the stepmother’s death to be divided between the two children. What motive the testator could have had, under the circumstances, so to dispose of his property, and who it was he intended to benefit by such disposition, it is difficult to conceive. It exposes the estate to great danger of loss, and incurs a heavy expense to be borne by those whom the testator felt, as his children, were entitled to the greater portion of his property.

Is such the destination of the property by the will?

It will be observed that the testator makes no devise of his-real estate at his death. He authorizes his executors to collect the rents and to sell the real estate, and what is left unsold at his wife’s death to be divided equally between Mrs. English and his son William.

It has been a subject of very much discussion, in what cases executors take a fee simple in trust to sell under a will,, or are invested merely with a power of disposition. The distinction resulting from the authorities seems to be this r that a devise of the land to executors to sell passes the interest in it; but a devise that executors shall sell the land, or that lands shall be sold by the executors, gives them but a power. 1 Williams on Ex. 413.

Sugden on Powers 111, upon an examination of all the cases, concludes that even a devise of land, to be sold by the executors, without giving the estaté to them, will invest them with a power only, and not give them an interest.

The case before us is free from all doubt. There is no devise to them of the estate; a mere naked power to sell is given them.

Nor does the power given them as to the rents and profits carry any interest in the land.

By a devise of the occupation, or of the rents and profits-of the land, the land itself is carried to the devisee. Such a gift of the rents and profits or of . the occupation of the land is considered as a mere circumlocution to express the thing itself. 1 Roberts on Wills 461.

But here is no devise of the occupation, or of the rente and profits. The power of the executors to take the rents is only by implication. The language is, “The said real estate to be rented at their discretion, until a fair price can be obtained for the same.” As the power to rent implies the power (o collect the rents, the executors possess the power of collecting; but it will be seen the interest given them in these rents and profits is very far from conferring upon them any title to the land.

The title to his real estate, at the testator’s death, vested in William A. Brearley and Eliza Ann English, two of the complainants, as his heirs-at-law. They are in by descent, and if the executors can enter upon the heirs by descent, it is only by the will, and to execute a power conferred upon them to answer some specific purpose expressed by the testator. For, suppose the testator had conferred upon the executors a power to sell, designating no purposes for which such sale should be made, the executors would not be authorized, under this power, to disturb the heirs in their inheritance. If we find them, in the further examination of this will, and the case presented by it, that there are no purposes of the testator to be answered by a further sale of the real estate, the power of the executors over it is at an end.

The executors are authorized by the will to take the rents and profits, and sell the real estate, and the proceeds to apply for the purpose of carrying into etfect the provisions of the will. After such purpose is answered, the residuary real estate, if not otherwise disposed of by the testator, the heirs take by gift of law, and not in consequence of the testator’s intention.

What are the provisions of the will, to carry which into effect these executors have a right to enter upon the inheritance of the heirs and deprive them of it ?

The annuity is provided for by the lurid set apart by the executors, and the executors have in their hands a large personal estate, abundantly sufficient to provide for any deficiency which might be occasioned by accident iu the fund. The debts and legacies are all paid. For what purpose will the executors sell this inheritance which the law has cast upon those heirs ?

It is not pretended that there is any specific purpose-pointed out by the testator; but the will having given the executors the power to sell the real estate, and then subsequently directing the residue of the estate to be divided between the testator’s son and daughter upon the death of the widow, it is insisted that the executors may exercise their power of sale, merely to hold the proceeds, and pay them over upon the happening of the event alluded to.

With regard to the personal estate, it will be seen, that stands on a very different footing. The executors have got. that into their possession. They have a right to the possession of it as the representatives of the testator. But to-exercise the power over the real estate, they must invade the-rights of others, and divest these complainants of a title-which is theirs, not by the intention of the testator, but by gift of law.

Let us now examine the residuary clause of the will and see what it embraces.

The testator does not direct that, upon the death of his-widow, all the residue of his real and personal estate shall be-equally divided between his children, but the residue of my personal estate remaining in the hands of my executors at the decease of my wife, Mary Ann, and all my real estate which may remain unsold at the time of her decease.”

What is to become of the rents and profits of the real estáte, and the proceeds of sale? They are not embraced in this-residuary clause, unless, by conversion, the real estate, by the-exercise of the power of sale by the executors, becomes personal property. And this depends upon the inquiry involving the very nice and intricate doctrine of conversion.

If, in pursuing this inquiry, we should come to the determination that the rents and profits, and the proceeds of the sale of the real estate, do not become, by the doctrine of conversion, personal estate in the hands of the executors, but belong to the heirs-at-law, and not to the next of kin, it will follow that these complainants are entitled to such rents- and procéeds at once; because, not being embraced in the residuary clause, and not being otherwise disposed of by the will, there is no pretence that the enjoyment by them of this property is postponed until the widow’s death. And it will follow further, that being entitled to the rents and profits, and the proceeds of the sales, upon the principle that the real estate would not take the character of personal property by being changed into money, they are entitled to the real estate itself, and that the executors have no right to disturb them in the enjoyment of it.

Did the testator, by empowering his executors to sell his real estate, intend it as a conversion ? This is a question of intention, to be determined from the language of the will — • the particular situation of the testator’s property — the character of the devisees and legatees, and all other circumstances which were apparently operating upon the testator’s mind, influencing him in disposing of his property.

The testator has shown no intent that he meant to dispose of his real as personal estate. There is no apparent motive, to which we can ascribe an intention to change the nature of the real fund. The manner in which the power and control of the executors over the real estate is conferred upon them, is a circumstance against such intention. It is another circumstance, that the very individuals who take the whole residue are his heirs-at-law. If there is a conversion it is for some purpose the testator had in view. It was not for the convenience of distribution, for he contemplates the possibility of some of the real estate remaining unsold, and that he directs to be divided, without its being converted into personal estate. And besides, suppose the death of his widow had followed the day after his own, the whole real estate would have been divided between these two children. The real estate, then, was not ordered to be sold for any such purpose. In the case of Smith v. Claxton et al., 4 Mad. Ch. Rep. 493, the "Vice Chancellor says : Where a devisor directs his land to be sold, and the produce to be divided between A and B, the obvious purpose of the testator is, that there shall be a sale for the convenience of division. But it is very evident, in this case, the testator had no such object in view. Did he intend the property to be converted, that it might accumulate in the hands of his executors, for the ultimate benefit of those for whom he designed it ? His daughter was married, and his son of age; and certainly it was a very precarious mode of disposing the property to accumulate for their advantage, to place it in the hands of their step-mother, and of another in no wise of kin to them.

The blending and disposing of the proceeds of the real with the personal estate, have been constantly considered to afford an argument for the complete conversion of the real estate into personal, but that circumstance is not, conclusive. 1 Roper on Leg: 356.

It must still depend upon the intention of the testator, and thus every case must rest in a great measure upon its peculiar circumstances.

In Mallahar v. Mallahar, Talbot’s Cases 78, cited as Forrester’s, it was determined the blending and disposing of the real and' personal estate amounted to a conversion. But that case was very different from the one in hand. The testator devised all his messuages, land and hereditaments whatsoever to one sister, her heirs and assigns, forever, upon trust, to sell the same as soon as convenient, and out of the proceeds to pay the debts, and then certain legacies, and among which was one to the heir-at-law. The rest and residue of his personal estate he gave to his sister, the executrix. The question arose between the executrix and the heir-at-law; the heir insisting that there was a resulting trust for his benefit after the debts and legacies were paid. But the Lord Chancellor determined the whole residue went to the executrix. But there was the circumstance that out of this very fund a personal legacy of five hundred pounds was paid to this very heir; and then again it was argued that if it should be construed to be a resulting trust for the heir, the testator’s intent would be utterly defeated; for then the personal estate must be first applied in ease of the real; and so the executrix would have but a troublesome affair, without any benefit or consideration, which could never be the testator’s intent.

And there is this marked difference between that case and this. The wholé of the estate was to be sold and converted into one fund, showing that the testator meant, at all events, that the whole estate should be sold and converted. But, in this ease, as before remarked, the death of the widow might have prevented the sale of one foot of it ;• and, as long as she lives, the discretion is left with the executors to sell or not, as they may see fit. The blending of the real and personal estate was to create a charge upon the real estate, in aid of the personal, to answer the special purposes of his will, and not with any intention of thereby changing the real into personal estate.

'Where a testator gives his real and personal property in trust, to be sold for particular purposes, and does not specifically dispose of the surplus proceeds, but makes a general residuary bequest of his personal estate, such a disposition will not include the produce from the sale of the land, in the absence of a contrary intention expressed or inferred from the will, and for this reason: the surplus of the real estate is not made personal; it therefore does not fall within the terms of the bequest. The conversion of the lands into personalty is merely to answer particular purposes which, when performed, the residue continuing land, and being undisposed, of necessity results to the heir. 1 Roper on Leg. 352.

In the case before us, not only is there “ an absence of a contrary intention expressed or inferred from the will,” but the residuary clause, in connection with the context, shows, I think, that the testator had in contemplation, when he spoke of the residue of his personal estate in the hands of his executors, that same estate which he had spoken of and referred to as his personal estate in other parts of his will.

In Robinson v. Taylor and others, 2 Brown’s Rep. 589, the testator gave his real and personal estate in trust; the real to be sold, and proceeds invested with the rents and profits thereof; and the question arose whether there was a conversion of real into personal estate. It was decreed that the heir-at-law should take the proceeds of the real, and the next of kin that of the personal estate.

In 2 Ves., Jr., 271, Chilty v. Parker, Mrs. Chilty devised her real estate to be sold, and all her estate to be converted into money, “ which I give and devise as follows.” She then gave several legacies. The purposes of the will were all satisfied without having recourse to the real, which was not sold. The next of kin claimed against the heir. It was argued that all the legacies were given with reference to the general fund directed to be created, and that the testatrix must have supposed that fund might probably be exhausted by the legacies, or nearly so. The Lord Chancellor says : “ It is agreed on all sides, that the court is not to execute the will in toto ; that the real is not to be converted into money, in order to have the quality of money, and to go as money. Here is the real estate of the testatrix. The heir, if there is nothing to prevent, takes that. If there is a single person existing who has a right by gift from her to any part of it, or the use of it, that person has a right to apply to have it converted into money. There is no such person existing, but the next of kin comes and says it is better for his interest to convert it against the heir. There is no spark of equity between the next of kin and the heir; but the general principle is, that the heir takes all that which is not for a defined and specific purpose given by the will.”

In this case the title is in the heirs. The debts and legacies have all been paid ; the annuity to the widow is secured ; every purpose the testator had in view has been answered. Who is there, then, that has any right to apply to have this estate converted into money ? Eor whose benefit ? To answer what purpose of the testator ? Who is interested in the real estate or proceeds but the heirs themselves ? There is no clashing of interest here between the heirs, on one side, and the next of kin on the other. Must the estate be converted into money, and to have the quality of money, for the purpose, merely — if a sale will effect it — of postponing its enjoyment by those who are entitled to it, to some future, uncertain period ?

My conclusion is this, that the executor and executrix have only a power under this will to sell so much of the real estate as is necessary to answer the specific purposes of the will; that those purposes are the payment of the debts and legacies and tlie security of the annuity to the widow; that, if the personal estate is sufficient for these purposes, the executor and executrix must account to the complainants for such sales of the real estate as they have made and such rents and profits as have come to their hands; and that the executors, under the residuary clause of the will, have the right to retain all the surplus of the personal estate until the widow’s death.

Let it be referred to a master to take the accounts of the executor and executrix. Let any further decree be postponed until the coming in of the accounts, that the court may judge, with more certainty, whether the real situation of the estate is such that the purposes of the testator may be answered, with the view taken of the case.

I trust the view I have taken will be satisfactory to the parties. The defendants ought to be satisfied. It leaves upwards of §>11,000 in their hands to secure the widow’s annuity, and relieves them from the burthen and responsibility of taking charge of the real estate. No one has any interest in disturbing the heirs in the enjoyment of the real estate, and with the state of things as they exist. I do not believe it was the intention of the testator they should be disturbed.

Cited in Boylan ads. Meeker, 4 Dutch. 300.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Jonathan Hunt et al. v. Richard Field et al.
    1. A general creditor, having no specific lien on his debtor’s property, has no right to interfere with any disposition his debtor may make of it, but an attaching creditor has such a lien as will enable him to maintain a suit in chancery to set aside, as fraudulent, conveyances or judgments under which the property attached is claimed.
    2. A bill for that purpose should be for the benefit of the complainant, and such others of the creditors as should come in and seek relief by and contribute to the expenses of the suit; arid should allege for what amount the attachment was issued, that it was executed, and what property was attached, and should make the defendant in attachment a party.
    This was an injunction bill, to set aside, as fraudulent, certain confessed judgments and a conveyance of personal property, and to restrain the defendants from selling or disposing of the property conveyed and levied on.' An injunction was granted,, and-a motion to dissolve argued at February Term, 1852. The facts of the case sufficiently appear in the opinion of the Chancellor.

      Messrs. Hoxsey and A. Whitehead, for the motion.

      Mr. Barkalew, for the complainants.
   The Chancellor.

One Samuel Schoonmaker was carrying on a mercantile business at Paterson, in Passaic county. Prior to the 27th day of January last past, he conveyed all the goods and merchandise in his store to the defendants, Slawson, Barret & Co., a firm doing business in New York. He also confessed a judgment to the said firm in the Passaic Pleas for the sum of $1368.16. Prior, in point of time, to this conveyance and judgment, the said Schoonmaker had confessed, in the same court, a judgment in favor of others of the defendants, Field, Merritt & Co., of the city of New York, for the sum of $3737.35. The goods were delivered under the conveyance mentioned, and executions were issued upon the judgments, levies made and the property advertised for sale by the sheriff.

On the twenty-seventh day of January last, the complainants caused a writ of attachment to be issued out of the Circuit Court of the county of Passaic, against Schoonmaker as an absconding debtor.

The complainants have filed this bill, alleging the conveyance of the goods, and the judgments confessed to be fraudulent, and praying an injunction against the sheriff and the rest of the defendants, restraining them from selling or otherwise disposing of the goods, and that the conveyance and judgments confessed to the defendants may be decreed null and void for fraud.

It is well settled, that a general creditor having no specific lieu on the debtor’s property, has no right to interfere with any disposition his-debtor may see fit to make of it. Edgar v. Clevenger et al., 2 Green’s Ch. Rep. 258-464; 1 Green’s Ch. Rep. 258, and note to the case.

But the complainant in this case insists that he has, by virtue of his attachment, such a lien as a court of equity will recognize, in order to give him a standing in the court, to question the disposition of the debtor’s property.

By the attachment act, the sheriff is commanded to attach the rights and credits, moneys and effects, goods and chattels, lands and tenements of such debtor, wheresoever they may be found, and it is declared that the writ shall bind the property and estate of the defendant so attached from the time of executing the same.

The act declares that the personal property attached shall remain in the safe keeping and care of the officer, in order to answer and abide the judgment of the court, unless the garnishee shall give bond for its forthcoming. It provides that where the garnishee denies having any property of the debtor in his possession, or of his being indebted to him, the plaintiff in attachment may, under certain circumstances, institute a suit at law against the garnishee, which shall be continued by the court until the action against the defendant in attachment shall be adjudicated upon and determined.

The act, in these and in various other ways, has given every facility to the plaintiff in attachment, to reach and secure the debtor’s property, both real and personal. And to the auditors appointed by the court from which the attachment may have issued, extraordinary powers are given to examine the wife of the defendant and other persons, under oath, touching all matters relating to the trade, dealings, moneys, debts, effects, rights, credits, lands, tenements, property and estate of the defendant, and his secret grants or fraudulent transferor conveyance of the same. And they may issue their warrant to the sheriff or any constable of the county, commanding them to break open any house, chamber, room, shop, door, trunk, chest, or other place or thing where they shall have reason to believe any property is deposited or secreted. And finally, it is enacted that this act shall be construed in all courts of judicature in the most liberal manner for the detection of fraud, the advancement of justice, and the benefit of creditors.

Where the legislature has done everything in its power towards enabling the attaching creditor to reach the debtor’s property, in whosoever hands it may be, and has enjoined it upon all the courts of the state to give the most liberal construction to the act, for the purpose of ferreting out fraud, to advance justice and benefit the creditors, is it a sufficient reason, when this court is appealed to to exercise its powers, in preventing the whole of the debtor’s estate, real and personal, from being swept beyond the reach of the attachment by a fraudulent conveyance or judgment, to refuse its aid, and declare itself powerless, upon the ground that the plaintiff in attachment has no specific lien upon the property ? By virtue of his attachment the creditor attaches all the rights and credits by the express provisions of the act. What better lien does a judgment and execution creditor obtain ? In fact, he gets none at all, for he cannot, by virtue of his execution, levy upon or sell them.

in the case of Melville v. Brown, 1 Harr. R. 364, James Hoy, who had taken out an attachment against Brown, moved the Supreme Court for a feigned issue to try the bona fides of a judgment confessed to Melville. The Supreme Court denied the motion, upon the ground that if the applicant had gone into a Court of Chancery, the court would not have entertained his bill, because he was no more than a creditor at large. The learned Chief Justice cites the leading American and English cases for the general principle that a creditor at large cannot interfere with the disposition of his debtor’s property. Two reasons are given why a court of equity would not interfere on behalf of an attaching creditor. First, the reason given by Chancellor Kent, in Wiggins et al. v. Armstrong et al., 2 J. C. R. 144, that to permit such an interference might lead to an unnecessary, fruitless and oppressive interruption of the rights of the parties. And this remark is made in view of the fact that upon investigation, it may turn out that there is no debt due from the defendant to the plaintiff, and if so, the litigation would have been altogether fruitless, whether the judgment questioned was fraudulent or not.

But while such a reason may be good as respects a mere creditor at large, may it not be answered that in reference to an attaching creditor, the act itself justifies, and almost commands, this interference? Does not the act put him, by virtue of his attachment, upon a very different footing from that of a mere creditor at large ? And reviewing the object and policy of the act throughout, is it not obligatory upon courts of law and equity to construe the provisions of the act liberally, although it may occasion some delay, inconvenience and expense to parties? The same inconvenience and oppression here suggested, necessarily follow upon the execution of some of the provisions of the act. The auditors may bring suits for sums under one hundred dollars. Suppose they should sue and recover the money, and after all it should turn out that the defendant in attachment did not owe the plaintiff, or anybody else, anything; or suppose, after put-sing these alleged creditors of the defendant in attachment to the inconvenience and expense of a suit, it should turn out they were not creditors, how much expense, inconvenience and oppression, would be incurred and suffered to no purpose? The sheriff, under the direction of the auditors, may break open houses, trunks, and chests; or may demand of individuals having property in their possession supposed to be the defendant’s, to deliver it up to his custody, or to give bonds for its forthcoming when required; or he may, under certain circumstances, summon a jury to try the right to the property. If it should turn out in the end, that the defendant in attachment owes nothing, there would be very great hardships, and in many instances very oppressive, and yet they must be endured, because the legislature have thought proper to impose them as burthens, in order to promote the administration of justice. Surely, in view of all these proceedings, recognized and prescribed by the act, it cannot be said that the creditor, or creditors, who are pursuing their rights under and by virtue of a writ of attachment, armed at every point with instruments and power to reach the debtor’s property, or supposed property, whether secured by bars and bolts, or covered up in the hands of others under fictitious claims, have no more right in a Court of Chancery to question the disposition of such property, than one whom the law has as yet provided with no process to follow and impound it.

But is not this idea of oppression very much imaginary ? As far as the debtor is concerned, all his rights over the property are already interfered with and interrupted. The attachment has taken from him the custody and control of the property. But it may be in the hands of another who claims it under a judgment confessed, or under a mortgage given to him by the defendant in attachment. The attaching creditor, whom the law has permitted to take out a writ to impound the property until a court of law can ascertain judicially whether or not he is a creditor, files his bill, charging the judgment or mortgage to be fraudulent. If by his answer the court sees he has a clear conscience, his disposition of the property will not be interfered with. But if, out of his own mouth he is convicted of fraud, what oppression is it for this court, to control his actions over the property, until the court at law where the legal proceedings have been instituted, shall have judicially determined whether there are any, and if so, who are the creditors entitled to investigate the fraud ?

By the provision of the act already referred to, where the plaintiff in attachment sues the garnishee, and holds him to bail, the court continues the suit until the action against the defendant in attachment shall be adjudicated upon and determined.

But it is said again, that the plaintiff has no lien upon the defendant’s goods; and the case in 1 Harr. is referred to as authority. The court do there say that the plaintiff has no lien upon the goods — that they are not in his custody, or subject to his control — that he never had possession of them, and could not, therefore, acquire a lien upon them, such as an attorney has upon deeds and papers for his costs; a factor, upon goods consigned to him for his claims as factor; a common carrier, upon the goods he has carried, for his wages; or an inn-keeper, upon the horse of his guest, for the amount of his bill. This is true ; nor has a judgment and execution creditor any such lien, nor any possession or control of the property levied upon. The court says, “goods, when properly attached, are strictly in the custody of the law.” And so they are when levied upon by virtue of an execution. The plaintiff has no more control over them in the one case than in the other. And this court will interfere if any such control is attempted to be exercised. Edgar v. Clevenger et al., 1 Green Ch. Rep. 263. The court, in 1 Harr., say : “ Liens are of two kinds — 1st. Such as a party acquires by his own act; or, 2d. Such as the law creates; as in case of judgment and execution.” But why not add “attachment” also, for by the very terms of the act the attachment binds the property and estate of the defendant attached from the time of executing the same. What is this but creating a lien upon the property for such debts, if any, as may be found due, by the judgment of the court, to the plaintiff in attachment, and other applying creditors.

By the act respecting executions, (Statutes of New Jersey, R. S. 977, § 3,) the same word bind is used as iu the attachment act.

I dp not feel myself at liberty to draw a distinction between the nature of a lien by virtue of an execution and that of a lien by virtue of an attachment; nor should I consider I was giving to the act a liberal construction for the detection of fraud, if upon so nice a question I should refuse to a complainant the aid of this court in investigating the bona fld.es of an alleged fraudulent, judgment or conveyance.

Upon the argument, the case of Quackenbush v. Van Blarcom et al. was referred to, which was a case upon this point in every respect like the one before the court. It is not reported. The Chancellor’s opinion was mislaid and not published, but I have examined the papers on record. Chancellor Pennington sustained the bill. I have seen the brief of counsel who argued that case. This point was discussed, and the case of Melville et al. v. Brown was relied upon. I am likewise informed that Chancellor Halsted sustained a like bill. Had the opinions of the Chancellors been published, I should have felt satisfied to have acquiesced in their views, without giving my own at length.

But this bill is informal and deficient in several particulars, and cannot be sustained.

The bill ought to have been framed for the benefit of the complainant, and such others of the creditors of the defendant as should come in and seek relief by, and contribute to the expenses of the suit. The bill does .not allege for what amount the attachment was issued — nor that it was ever executed — nor what property was attached — whether real or personal — nor whether any property at all was attached. It would seem rather from the bill that the goods and chattels which were subject to execution were not attached for that reason. There certainly is no allegation in the bill that the property claimed by these judgment creditors was attached. As to the books of account, which the bill alleges were fraudulently conveyed to some of the defendants, it is stated that the sheriff, on levying the said writ of attachment upon the booksj it was ascertained the defendant, the day before he absconded, had assigned them to some of the defendants, but whether the sheriff found the books and attached them, is not stated.

The defendant in attachment is not made a party to the suit. There can be no decree without him. The bill is therefore also defective for the want of the necessary parties.

For the reasons stated, let the injunction be dissolved, with costs.

Cited in Williams v. Michenor, 3 Stockt. 524; Oakley v. Pound, 1 McCar. 380; Robert v. Hodges, 1 C. E. Cr. 302; Curry v. Glass, 10 C. E. Cr. 109; Davis v. Dean, 11 C. E. Cr. 437; Tomlinson v. Stiles, 4 Dutch. 201; Stewart v. Walters, 9 Vr. 277.


text:
    Aaron King, Administrator of Benjamin King, dec’d, v. Maria King et al.
    1. In a suit by the administrator of a deceased obligee to foreclose a bond and mortgage, and the defence of payment set up, a brother of the deceased, entitled to a distributive share of his personal estate, is not a competent witness for the complainant.
    2. To render him competent, he should release all his interest in the bond and mortgage, and the administrator should release him, or his interest in the estate, from all liability, on account of the costs of the suit.
    3. Nor would he be competent to prove the execution of such releases where they are attested by a subscribing witness ; a release of this kind must be regularly proved the same as any other- deed.
    4. In such a suit, against the widow and heirs of the deceased obligor, they can claim, as a payment of the bond, an account of the obligor against the obligee for board furnished him under an agreement that it should be applied in reduction of the bond, and such agreement need not be expressly proved, but may be inferred from circumstances.
    5. Such agreement need not be proved as set out in the answer ; the substance only of the issue need be proved, nor.is the same degree of accuracy required in an answer as in a bill.
    6. An allegation of payment in chancery pleadings is sustained by proof' of satisfaction in any way, as by set-off, award and satisfaction, &e.
    7. The statute of limitations is no bar to such a defence, although more than six years had elapsed after most of the account had accrued; nor the statute against frauds and perjuries, on the ground that the agreement was-not to be performed in one year from the making thereof.
    This cause was heard before the Chancellor at February Term, 1852, upon the bill, answer, replication and proofs. The nature of the pleadings and the facts sufficiently appear in the Chancellor’s opinion.

      Messrs. J. B. Dayton and Browning, for complainant.

      Mr. T. W. Mulford, for defendant.
   The Chancellor.

This bill is filed by the complainant as the administrator of the estate of Benjamin King, deceased, for the foreclosure of a mortgage made and executed to Benjamin King by Samuel King, his brother. The mortgage was made to secure the payment of twelve hundred dollars and interest, payable in one year from the sixth day of April, 1839, the date of the mortgage and accompanying bond.

Samuel King, the mortgagor, is likewise deceased, and the defendants in this suit are Maria King, his widow; Robert King, Adeline King, Benjamin E. King, and Rebecca King, infants, the children and heirs-at-law. of the said Samuel. The payment of three hundred dollars of the principal, and of the interest up to April 6th, 1840, is admitted.

All the defendants have answered by one joint and several answer. They insist that there is nothing due on the bond and mortgage, and that the debt was paid and satisfied in this wise: that Benjamin King boarded with his brother Samuel, and was furnished with boarding, washing and lodging, from the fifth day of September, 1839, to the first day of January, 1847, at the price of three dollars a week, under an agreement between them, that the said board, lodging and washing should be furnished and received on account, and in payment of the debt due on the bond and mortgage, and that Benjamin King would permit and allow the same as a set-off in payment and discharge of the said debt.

Witnesses have been examined on both sides, and the cause is submitted upon the pleadings and proofs.

The most material witness examined on behalf of the complainant is Peter King. He was objected to as an incompetent witness, when called before the master, and the objection was insisted on in the argument, of the cause. Is he a competent witness ?

The witness is a brother of the complainant, and of Benjamin King, the intestate, upon whose estate the complainant has administered. He is entitled, as one of the next of kin, to one-third of the distributive personal estate of his deceased brother. The estate is solvent, and the witness’ interest in it, independent of this bond and mortgage, will foe about one thousand dollars. The witness, therefore, is directly interested in the result of this suit. He will gain or lose one-third of the money recovered or.-lost by it. The witness was objected to before the master. Two releases were then produced — one executed by the witness to Aaron King, the complainant, not as administrator, but in his own right, releasing to him all the right and interest of the witness in the bond and mortgage in this suit. The other release was from Aaron King, the complainant, in his individual capacity, to his brother, the witness. To render this witness competent, it was necessary that the complainant, as administrator, should have released him, or his-interest in the estate, from all liability for and on account of any part of the costs of this suit; for, if the suit is lost, .the distributive share of Peter King will be chargeable, with a proportion of the costs and expenses. The release of Aaron King, in his individual right, of this liability, amounts to nothing. Peter King can never set it up in bar to any claim the administrator may make for his proportion of the expenses.

But, further, the releases were proved by the witness himself, and were then offered in evidence to render him competent. The defendants’ counsel objected to them, and the objection was well taken. The releases are witnessed by James B. Dayton, and he should have been called to prove their execution.

The witness was not sworn on his voir dire, at the request of the defendants, but was sworn on behalf of the complainant. It was not competent to prove the execution of the releases by him. The subscribing witness was then before the master, and no reason is given why he was not called upon. The release must be regularly proved, as any other deed. 1 Barb. Ch. Prac. 267; Botham v. Stringler, 1 Esp. Rep. 165; Butchers’ Co. v. Jones, 1b. 161; Corking v. Gerard, 1 Camp. 37.

These are not mere technical objections, but are substantial and reasonable, and the court has no right to disregard them when they are insisted on by the party who makes them.

The account which the witness gives of these releases is very unsatisfactory. No consideration whatever passed between his brother and himself. He has received from his brother quite, if not all, the amount coming to him from the estate, for which his brother holds his notes and receipts. He says his brother told him if he would execute the release, he would take it for the money he owed him. And yet he at the same time says that his brother still holds these notes against him, and ho expects to pay his brother the money as fast as he gets it.

In deciding this case, I must lay entirely out of view the evidence given by Peter King.

Let us now examine the defence as to its legality, and how far it is established by the evidence.

The complainant insists that there can be no set-off in this suit of any debt due for board, or otherwise, from Benjamin King to Samuel King. It is undoubtedly correct that there can be nothing like a legal set-off. These defendants can bring no suit against Benjamin’s administrator for any debt Benjamin might have owed his brother. Ho set-off can be allowed, unless the debt or claim is such that the party may maintain a counter action for it. To permit the heirs-at-law, in a suit against them by the administrator of an estate, to set off a debt due their ancestor from the intestate, would be to change the course of distribution. Whatever debt maybe due from Benjamin King’s estate to that of Samuel’s, it can be claimed only by the personal representative of Samuel King. He only can bring suit for it, and consequently he only can claim the benefit of it as an off-set.

But these defendants do not claim any allowance by way of legal set-off. They do not set up a claim of Samuel against Benjamin King of an independent, legal debt due from the latter to the former. They claim in equity, a credit on this debt, the payment of which the complainant is enforcing, for services which were rendered to the complainant’s intestate, not independent of, but in reference to this very debt, and under an agreement, either expressed or implied in law, that they should be applied to its reduction.

A defence like this would be good at law, independent of the statute respecting mutual dealers, and could be set up by the obligor himself, or by his representative, against the obligee, or whoever might hold the bond as assignee or otherwise. It is an equity existing between ' the parties, which will be recognized and enforced in a court of law, and will follow the obligation into whosesoever hands it may pass, either by the operation of law or the will of the parties. It is not a set-off, but a legal and equitable defence against the claim sought to be enforced for so much as the services rendered amount to. See the cases cited in 3 Harr. 227, Cumberland Bank v. Hann.

If payments of money were made by Samuel King to Benjamin King, or services rendered, or board and lodging furnished, under an agreement that they should be applied to the satisfaction of this bond and mortgage, or under circumstances from which the court may infer such an understanding, it is a good defence in equity for the obligor, or for any one else against whom it may be sought to enforce the payment of the debt.

It would be a great hardship, if such a defence in a case like this was not available.

These services were rendered, it is alleged, from the year 1839 to the year 1847, upon the understanding they were to be credited in reducing the debt on the bond. If no allowance can be had for them here, a suit at law must be brought, and the statute of limitations will be a good defence to three-fourths of the claim. The obligor and those claiming under him, have quietly reposed under the supposition that the bond debt was reduced by the services rendered, and now, when they claim' the credit,, they are told it is an independent, disconnected debt, and redress must be sought, where it cannot be obtained, in a suit at law. Independently of the statutes of set-off, courts of equity, in virtue of their general jurisdiction, are accustomed to grant relief in all cases where, although there are mutual and independent debts, yet there is a mutual credit between the parties, founded, at the time, upon the existence of some debt due by the crediting party to the other. By mutual credit, in the sense in which the terms are here used, we are to understand a knowledge on both sides of an existing debt due to one party, and a credit by the other party, founded on and trusting to such debt, as a means of discharging it. S. E. J. 1435.

There is no difficulty arising from the nature of this suit. It is for a decree of sale of the mortgaged premises to pay so much of the debt as may, upon account, be ascertained to be due, and in taking that account all proper allowances should be made.

I think there is no difficulty, as far as the law of the case is concerned, that the defence set up is available in this suit. The only remaining question is, does the evidence support it ?

It is not necessary that any express agreement should be proved; it may be inferred from circumstances. This was admitted in the case of Green v. Storm, S Sandf. Ch. Rep. 308. The suit was brought for sale of mortgaged premises. The defence was payment. The defence failed, because it turned out to be a mere legal set-off for money which had been advanced while the mortgage was in other hands, and for different purposes.

In Jeff v. Wood and others, 2 P. Wms. 128, the Master of the Rolls says: “It is true, stoppage is no payment at law, nor is it, of itself, a payment in equity; but then a very slender agreement for discounting or allowing the one debt out of the other will make it a payment, because this prevents circuity of action and multiplicity of suits, which is not favored in law, much less in equity.” And again : “ It seems that the least evidence of an agreement for stoppage will do; and in these cases, equity will take hold of a very slight thing to do both parties right.” And it is still more reasonable, that where the matter of the mutual demand is concerning the same thing, then the court should interpose and make the balance only payable.

Let us now look at the evidence we have of an agreement between the obligor and obligee, that the board, lodging, &o., furnished the obligee should be taken, and considered in payment, as far as it went, of the debt secured by the bond and mortgage.

The bond and mortgage bear date the sixth day of April, 1839. The debt was twelve hundred dollars, payable, with interest, in one year from that date. The obligor and obligee were brothers. There is no evidence whether the consideration of the bond was for money lent, or how the debt was contracted. Samuel was a man of family, and Benjamin a single man. They went into partnership in keeping a public house and garden, at Camden, in 1838, and dissolved on the 20th of March, 1839; «o that the bond and mortgage bear date eleven days after the dissolution; but whether the debt, or any part of it, grew out of the partnership transactions, does not appear. The evidence is clear that, from the latter date up to January, 1847, with the exception of six months, while he was at Mr. Cake’s, and only lodged at his brother’s house, Benjamin boarded, lodged, and had his washing done at his brother Samuel’s. There is 'pretty strong evidence, by two witnesses, that, the price agreed upon for board was three dollars a week; and as to the evidence of the real value, no witness puts it lower than two dollars and twenty-five cents a week. Thus, upon the lowest estimate of the value of the board, &c., and, I think, upon very clear testimony, there was an indebtedness from Benjamin to Samuel of very nearly nine hundred dollars. How was it paid from time to time ? Samuel, soon after the bond was given, turned out-an utterly worthless man, doing nothing for the maintenance of his family. His wife, by her industry as a market woman, provided for the support of her husband and her children and the boarding of Benjamin. Did Benjamin do anything towards the support of the family, by advancing money, or in any other way ? Witnesses were sworn, who were on terms of intimacy with the family, visiting them frequently, and sympathizing with Mrs. King in her struggles, and it could hardly be that any considerable aid was furnished by Benjamin in any way, without these witnesses having some knowledge of it. All the proof of any assistance furnished by him during the whole period he was in the family, was providing a meat machine for Mrs. King to use in her market business, and this he himself afterwards sold. If, during this long period of time, Benjamin was in the habit of doing anything for the maintenance of the family, there must be some witnesses who can establish the fact.

There are two endorsements on the bond, both without date. They are as follows: “ Eeceived three hundred dollars of the principle. $300.” “The interest paid up to April 6, 1840.” The fair presumption is, that the sum of three hundred dollars principal was paid prior to April 6th, 1840. Had that amount been paid at any subsequent period a part of it would have been credited for interest due. It is fair to presume that the credit was given at a time when there was not anything due for interest on the bond. The testimony of John W. Potts corresponds with this presumption. He says, in a conversation with Benjamin about this payment, he understood from him that it was made some year or eighteen months after the date of the bond. The endorsements bear very much the appearance of having been written at one and the same time. If this be so no part of the credit is for board. There is no credit whatever upon the bond from April 6th, 1840; and it can scarcely be supposed that from this period up to January, 1847, Benjamin paid up frqm time to time his indebtedness for board, while he had in his hands this obligation, on which nine hundred dollars were due, drawing interest. During this period there is no evidence of any dealings or accounts between the parties, except of the bond and mortgage on one side and the board bill on the other.

In addition to these circumstances, we have the testimony of two witnesses to the declarations of Benjamin King, as to what the understanding of himself and his brother was in reference to the matter. He told John W. Potts that he got nothing from his brother except what he boarded out, and that he was boarding with him on account of the claim he held against his property • that his board and lodging were in payment of his claim against Samuel so far as it went. He told him in several conversations he would not have boarded there had it not been for this claim; and he says he heard him tell others the same thing. I have not overlooked the circumstances, adverted to on the argument, as questioning the. accuracy of this witness. But I can see nothing in his conversation, with Mr. Mulford or with the administrator, which the witness himself details with great frankness, going to weaken the force of this part of his testimony. These conversations only show, that until Mr. Mulford was advised with, the witness did not know that these credits could be made available if the administrator refused to allow them. He said nothing inconsistent or irreconcilable with the evidence he gave before the master.

Jeremiah Carter, another witness, says that at one time, in a conversation with him, Benjamin was complaining of the treatment of the children towards him. I asked him why he boarded there then, or said to him, I would not board there then, or something to that effect; he said he would not, but that he held a bond and mortgage against Samuel for, I think he said, twelve hundred dollars, or something like that amount. He said he boarded there on that account, and signified that he did not expect to get anything except what he boarded out.”

Now, upon this evidence, and under these circumstances, is it not equitáble and right, that whatever may be due for board and lodging should be credited on this bond and mortgage? Is it not reasonably clear that it was the understanding of the parties that the board and lodging were furnished on account of this debt? And if they were, why ought not the credit to be allowed on it?

I have examined, with great care, all the objections that were very ably urged on the argument, in opposition to the view I have taken of the case.

As to the agreement as set up in the answer, it was objected, it was not proved in the terms, as alleged and set out in the answer. In addition to what I have said, as to the agreement being expressed or implied, I would observe that the same strictness of proof is not required in a case like this as in a case for specific performance, where the very terms of the agreement or contract are necessary to be ascertained, in order to obtain a decree. It is a general rale that the substance only of the issue need be proved ; nor is it necessary that the same degree of accuracy should be observed in an answer as is required in a bill. 1 Barb. Ch. P. 138; 2 Dan. 244; Gresley’s Eq. Ev. 167.

An allegation of payment in chancery pleading is sufficiently sustained by a proof of satisfaction of the demand in any way, as by set-off, accord and satisfaction, &c. Lee v. Beatty, 8 Dana 212.

It is true there must be a correspondence between the allegata and probata. I think there is, substantially, a correspondence in this ease.

As to the statute of limitations, I do not think it can be interposed to any part of this defence. If a payment of money had been made ten years ago on this debt, and not credited on the bond, the obligor, or those defending under him, would not be debarred by the statute from the benefit of the payment. Besides, there was an open, mutual, running account between these parties as to these specific demands.

Nor can I see how the statute of frauds and perjuries can be made applicable, on the ground that this was an agreement not to be performed in one year from the making thereof. The services have been rendered and accepted, and compensation is claimed, and the simple question now is, whether compensation is to be applied to this particular debt under the agreement of the parties, and not whether the execution of an agreement is to be enforced which was not to be performed within a year. The matter in controversy is not in reference to an executory, but an executed agreement.

I have not overlooked the fact that a fair inference may be drawn from the whole evidence, that there is a considerable sum still due on this bond and mortgage. That may all be true, and yet I do not see that it militates against the conclusion that there was a large amount due from Benjamin to Samuel for board and lodging, and which, by the understanding of the parties, ought to be credited on this debt. The matter was allowed to run on during Samuel’s life without any settlement, and although Benjamin lived nearly two years after Samuel’s death, it does not appear he took any steps to collect the bond or to adjust what was due upon it. I think we may judge, from Benjamin’s conduct, for he never appears to have treated his brother or family harshly as to this claim, that had a settlement been made in his lifetime, this whole matter would have been adjusted without difficulty.

A reference must be had to a master to take the accounts.

First. Of what is due for principal and interest on the bond and mortgage, allowing the credits endorsed.

Second. An account of what is due for board, lodging and services rendered to Benjamin, during such of the period as the board, &c., were furnished him — from the fifth day of September, 1839, to the first day of January, 1847 — and in taking this latter account, let the master make all just and proper allowances for payment in money, or services rendered, or provisions furnished the family by Benjamin. The amount to be allowed for board, &c., will be such sum per week, or month, as they shall be proved to the satisfaction of the master to have been reasonably worth, unless some specific sum shall be proved to have been agreed upon.


text:
    Jon.v De Groot v. E. R. V. Wright and wife.
    1. Where a conveyance of land has been made in fee, and a third person, claiming a life estate in the same land, by virtue of an alleged parol agreement made with the grantor before the execution of the deed, seeks' to reform the deed so as to protect his life estate, he must make the grantor, as well as the grantee, a party to the suit.
    2. Such agreement cannot affect the grantee unless he had notice of it.
    The bill alleges that, about the year 1817, Joanna De Groot, the mother of the complainant, being seized in fee simple of certain lands and premises of about eighty acres, in the county of Bergen, in consideration of natural love and affection, and of the benefits of the improvements proposed, agreed with complainant that he might take possession of the land, and make improvements thereon; and for so doing, he might enjoy the same, and take the rents and profits during his natural life. That, at this time, the land was in a low state of cultivation, and no buildings thereon ; that complainant entered, in pursuance of said agreement, improved the same, built thereon a good farmhouse, barn and other buildings, and planted fruit trees, all at his own expense, amounting to at least $3000; that the complainant, by himself and tenant, is still in possession of the land.
    That in September, 184.6, Joanna De Groot conveyed the said land and premises to Naomi C. Wright, the wife of E. R. Y. Wright, and daughter of said complainant; that the only consideration therefor was natural love and affection ; and that it was made and accepted with full knowledge, by the said Naomi and her husband, of the rights and interest of the complainant in the premises ; and at the time, it was agreed between them that the deed was not to take effect during the lifetime of complainant, so as to interfere with his rights and interest, and that the complainant was to have the use and occupation of the premises during his life; that, at the time she executed the deed, she was upwards of eighty years old ; confided in said E. R. V. Wright, who is a lawyer, to draw the deed ; and, if the said deed does not reserve the use of the said land during complainant’s life, it is in violation of the agreement made by the said Naomi and E. R. V. W. with the said Joanna, and is a fraud upon the said Joanna and the complainant.
    That the said E. R. Y. W. and wife have oommenced actions of ejectment, in the Bergen Circuit, against complainant and his tenant, to recover the possession of the said lands.
    The prayer^ of the bill is, that the deed from Joanna to Naomi may be corrected in conformity to the agreement of the parties, so as to reserve to the complainant a life estate in the premises, and for injunction to stay the suits at law, and restrain them from commencing any like action during complainant’s lifetime.
    The defendants, by their answer, admit that the complainant and his mother lived together on the same farm, as stated, but fully deny all knowledge of any agreement between, them, as alleged in the bill, entitling complainant to enjoy the land for his life, or for any other time, except as tenant at will, and they believe no such agreement was ever made as is alleged in the bill. They admit the improvements made upon the land, but state that the said Joanna was a widow, possessed of considerable property, consisting of money at interest, a house and lot in New York, and the land in question; that the complainant, being her only son, had her confidence, collected her moneys, and that the moneys so collected, unaccounted for, amounted to more than the value of the improvements; admit that complainant was in possession of. the premises, and lived on part of the same with his mother, but say he was only tenant at will. They further say that, prior to March, 1844, Joanna D. had lost confidence in her said son, and determined to convey her property to her grandchildren, (the children of complainant,) upon the consideration of their securing to her support and maintenance during life'; that,. in pursuance of of that determination, she did convey to Naomi the house and lot in New York, and to another grandson, Samuel De Groot, a part of her real estate in New Jersey, and thereupon the said E. R. Y. W. and S. De G. executed to the said Joanna a deed of covenant to support and maintain her during life : that, afterwards, the said Joanna discovered that her son, the complainant, without her knowledge, had encumbered the house and lot in New York, and on that account she executed the deed to Naomi mentioned in the bill. They deny fully that at this time they, or either of them, had any knowledge, intimation or belief that the complainant had any interest for his life, or for any other term, in the said land, and they deny any such agreement respecting it as is alleged. They deny that the deed was drawn in any way different from any agreement between them and the said Joanna, or different from her understanding, wishes, or instructions, but according to her wishes and instructions.
    Upon Ming the bill, an injunction was granted to stay the proceedings of the ejectment suit, which was dissolved upon the coming in of the answer.
    Proofs were taken in support of the bill, and contra ; and the cause came on for final hearing at February Term, 1852.

      Mr. W. Pennington, for complainant.

      Messrs. Zabriskie and P. D. Vroom, for defendants.
   The Chancellor.

The defendants, by their answer, having denied every material fact upon which the complainant’s equity rests, we must look to the proofs alone for the support of the case made by the bill.

The specific relief prayed for by the bill is, that the deed from Joanna De Groot to Naomi Wright may be reformed and corrected in conformity to the agreement of the parties, so as to reserve to the complainant a life estate in the premises, and the defendants be enjoined from further prosecuting their actions of ejectment, and from commencing any other action to disturb the complainant’s possession during his life.

There can be no decree for a reformation of the deed with the parties now before the court. That is a question in which Joanna De Groot is immediately interested, and for that relief a decree against her would be required.

But there is nothing in the proofs taken that would justify a further investigation upon this part of the case.

The allegations of the bill are, that the deed was made and accepted, with full knowledge by the defendants, of the rights and interest of the complainant in the premises ; that it was understood and agreed between the parties at the time, that a reservation of those rights should be contained in the deed 5 and if they are not so reserved, it is a fraud upon the said Joanna and the complainant.

Joanna De Groot, whom the complainant examined as a witness, testifies that the deed was made as she intended it should be. And it further appears from her testimony, and that of the other witnesses who were cognizant of the whole transaction, that one of the objects in making the deed was, to place the property in a situation so as to prevent the creditors of the complainant, upon the death of his mother, from reaching any interest he might have in it. The proof of any fraud upon the part of Mr. Wright, in respect to drawing the deed, wholly fails, and the evidence,' all of which is taken on the side of the complainant, places the matter beyond a doubt, that the deed was drawn in conformity to the wishes of the old lady and the understanding of all the parties.

But the complainant insists that, upon the case made, he is entitled to the injunction prayed for in his bill, by way or in lieu of a specific performance of .the alleged agreement made between his mother and himself. The agreement is alleged to have been, that 'he should enjoy the possession of, and the rents and profits of the premises during his life, in consideration of the improvements he should put upon them. It is alleged that improvements were put by him upon the premises under that agreement ,• that the defendants knew of that agreement and promised, at the time the deed was executed, that it should be carried out. That this court ought, under the circumstances of the case, by way of injunction as prayed for, to secure to the complainant the benefit of his agreement with Joanna De Groot.

Admitting the agreement between the complainant and Joanna to have been made, as the bill alleges, and that this court could have decreed a specific performance as between them, it by no means follows that the complainant is entitled to any relief as against these defendants, which will at all impair the rights which were acquired under the deed to Naomi Wright. The charges in the bill affecting the rights of the defendants, to wit, that they knew of this alleged agreement that they promised to carry it out, and that, through fraud, it was not incorporated in the agreement, are all of them not only denied by the answer, but are disproved by the evidence introduced by the complainant himself. Without such proof, the complainant has no equity as against these defendants. The deed to them is in no way impeached or called in question, except in the particulars referred to. It is true there is some evidence of an understanding that the complainant’s possession should not be interfered with during his life, and that one or both of the defendants did promise to this effect. But the evidence does not show that the deed was executed, in part, upon the consideration of such promise, or that when such promise was made, the defendants, or either of them, had ever heard of any agreement between the complainant and his mother, or that they knew, or had reason to believe, that the complainant had any equity, by reason of any improvements he had put upon the premises. They are therefore dona fide purchases without notice. In justice to the defendants, the daughter and son-in-law of the complainant, it should here he mentioned that before the suits at law were commenced, they expressed a willingness that the complainant should retain the possession of the premises, upon acknowledging their title. They offered to lease him the premises at the nominal rent of one dollar a year. He not' only rejected the offer, but denied they had any right in the premises.

Was there ever any agreement between the complainant and Joanna De Groot, the performance of which this court could enforce?

Joanna De Groot says, “There was no understanding I know of about that place when he commenced these improvements, no further than that it was all his as far as he Tcnowed: ' n ' there was nothing said about it that I remember.”

And again, on cross-examination, “ When my son went on to make the improvements spoken of, there was no agreement between us that he should have it for life; why should there be ? He was my only child, and I and he expected that he would have everything that I owned wh'en I died. If he had had good luck in the world, there never would have, been any trouble with it.”

This is the only witness called by the complainant to prove the agreement. It is manifest, then, that there was no express agreement.

On behalf of the complainant, it is insisted that there was an implied agreement arising from the circumstance of his improving the property, and the value of those improvements.

Without stopping to inquire whether the court will infer an agreement from such circumstances, for which they will .decree a specific performance, let us see how the complainant sustains this part of his case by evidence.

The improvements which have been put upon the premises are valuable, but how much money has been expended does not appear.

What does Joanna De Groot say with respect to them ?

She says, “ All these improvements were made at the expense of JohnDe Groot; I had nothing to do with it at all.”

She further says that he has been in the possession of the premises since 1817, and has taken to himself the profits. That while making the improvements he had charge of all her affairs, “ money and everything else. He collected my interest and New York rents and expended the money as he thought right — who else should do it ?” She refused to tell whether he had expended the principal of her money she had at interest. She was an old lady, and at the time of her examination eighty-six years of age.

It appears that during all the time the complainant occupied the premises his mother lived with him; that while he was making these improvements he had the management of all her affairs, and the use of all her money, which amounted to a considerable sum — very much larger than the value of all the improvements put upon the premises. The house in New York brought a rent of $400 a year, which he collected and used. He raised upon that house on mortgage $2500, unknown to her, and for which he did not account to her, and at one time she paid for him a debt of a thousand dollars; that he became embarrassed in his circumstances, and when the sheriff was inquiring for property out of which to raise money to satisfy claims against the complainant, he said he had no interest in the property, and was only a tenant at will.

From these circumstances it is that this court is now asked to infer an agreement that he was to have a life interest in this property, and to make a decree by which it may be secured to him.

Upon a case like this, I do not feel myself called upon to decide any of the vexed questions of law discussed upon the argument, for whatever might be my conclusions, I could make no application of them to this case, from which the complainant could derive any advantage.

The bill must be dismissed, with costs.