author: Stacy G. Potts, Master.

text:
    FRANCIS HEWITT ET UX. v. NATHANIEL J. CRANE ET AL.
    1. When a father devises an estate to a son and daughters, the son knowing its value, and the daughters not knowing it, the son, when he enters into a treaty with the daughters for a different settlement and disposition of the estate among them, must apprise the daughters of its value, of their rights, and of every circumstance necessary to enable them to treat upon terms of equality; and concealment, misrepresentation, or any conduct on his part, calculated to put them at a disadvantage in the negotiation, will be fatal to the contract in a court of equity.
    2. Courts of equity look with favorable eye on agreements made to pre» serve and maintain the peace of families, but only so far as such agreements are fairly obtained. If obtained by concealment and misrepresentation as to the value of the estate, courts of equity will not sustain them.
    3. Before a party can be examined as a witness, an order must be obtained for that purpose.
    This cause was heard by Stacy G. Potts, Esq., one of the masters of the court, the Chancellor having been concerned as solicitor and counsel for the complainants — the counsel of the respective parties having requested that Mr. Potts might be selected to hear the cause.
    The facts of the case appear fully in the opinion delivered by the master.

      Oliver S. Halsted, Jr., and A. Whitehead, for the complainants.

      Robert Vanarsdale and Peter TJ. Vroom, for the defendants.
   Stacy G. Potts, Master.

Joseph Crane, of the county of Essex, departed this' life September 27th, 1832, having-first made and executed his last will. He left six children, Nathaniel Jones Crane, one of the defendants, his only son, and Hannah, Rachel, Phebe — wife of Alfred Keene — Eunice, and Amanda, his daughters,, him surviving, all, at the time, unmarried, except Phebe.

By his will, dated the day before his death, he devised to Jones, the son, one-half of his cider-house and one acre of land adjoining the same; bequeathed $800 to Amanda, and the remainder of his estate he devised to Jones, Phebe, Hannah, Rachel, and Eunice, and their heirs, to be equally divided among them, and appointed Charles R. Akers his executor.

His estate, at the time of his death, consisted of the homestead farm, near Belleville, containing seventy-seven acres; a lot of Woodland in Caldwell, containing seventy-five acres; fifteen and a half acres of salt meadow, and personalty amounting to $3518.04.

His debts and funeral expenses were $192.89, which, with Amanda’s legacy of $800, made $992.89 to be paid out of the estate.

Soon after his death, negotiations were set on foot for a different disposition of the estate from that made by the will, which resulted, on the 15th of October ensuing, in an arrangement among the four eldest devisees, Jones, Phebe, Hannah, and Rachel — Eunice being a minor — by which Phebe Keene and her husband took what is called the corner-house and two acres of land adjoining, part of the homestead, valued at $550, and Jones’ bond for $950 — in all, $1500. Hannah and Rachel each took Jones’ bond for $1000, payable to them or their order, if they should demand the same iu one year from date, without interest, and Jones took the residue of the whole estate, subject to the debts, the legacy to Amanda, and the widow’s dower.

In July, 1835, Rachel married Francis Hewitt, and on the 14th of October, 1836-, they filed their bill against Jones, alleging fraud, misrepresentation, and concealment on the part of Jones in procuring this agreement, and praying that it may be set aside, so far as the complainants are concerned, and they let in to take under the will. There is also an allegation that Hannah was incompetent to contract from weakness of mind, and that the complainant Rachel, as one of her heirs, had an interest in her estate that ought to be protected, and a prayer for general relief.

Hannah died without issue, pending the suit. After the bill was filed, the other devisees were made defendants.

Much testimony has been taken; the case has been elaborately argued; it involves important principles and consequences, and demands a deliberate and careful examination.

The principal difficulty lies in settling accurately the facts of the case. There is no question as to the character and quantity of the real estate, and I am disposed to make none as to the amount of the personalty. The first issue made by the pleadings and evidence is as to the fraud, misrepresentation and concealment in. procuring the agreement alleged by the bill and denied by the answer.

To this issue, the testimony of Akers, the executor; Keene, the husband of Phebe, and Frost, who was the principal actor in bringing about the agreement, is directed.

An objection is made to the testimony of Keene, by the counsel of the defendants. The wife of Keene is a sister of Hannah, and one of her heirs-at-law; and, if the complainants succeed, is entitled to her share of whatever may be found due to her as one of the devisees of her father. The interest of the wife is, in this case, the interest of the husband; and though Keene’s testimony was taken previous to Hannah’s death, yet, opon the case as made in the bill, I think the objection must prevail. For, though his interest at the time in Hannah’s estate was remote and contingent, yet, if the complainant succeeds, the record in this ease might be important evidence for him in a suit Brought by himself and wife; besides, the bill was demurred to on the ground that he, with others, was not a party; the demurrer was • submitted to, and he was made a defendant, and no order was obtained for his examination. Before a party can be examined as a witness, an order ought to be obtained for that purpose. Sharp v. Runk & King; 1 Halsted’s Digest 234; 1 Newland’s Ch. Pr. 280.

Akers’ testimony goes merely to show that he was making preparations to enter upon his duties as executor under the will, when, a few days after Mr. Crane’s death, Frost called on hint and inquired whether he was willing to decline acting as executor, provided the devisees could arrange among themselves; he assented; agreed it would be better for them to do so, if they could; postponed any action till Mr. Frost made the result known to him, and then went, with Frost and Jones, to the surrogate’s office and renounced; and Jones administered with the will annexed.

We are left, then, to the testimony of Mr. Frost. He was the brother-in-law of the testator. The narration he gives of the commencement, progress and conclusion of this arrangement is substantially as follows: He states that he was present at the funeral of the testator; that the family were in great distress, both on account of the death and the dispositions of the will, and pressed him to come down the next day. He did so. The will was read. Jones appeared dissatisfied with it, and none of the family appeared satisfied. When it was found Amanda had a legacy of $800, Rachel Ann said she would rather have that than her share of the land ; she didn’t know what she would do with the land. This he says led him to think whether Jones could not give them this amount and keep the land.

Hannah was willing. He went to Phebe Keene and told her. She was willing to do as the rest did, but her husband, Alfred Kéene, kept back. He said it was not a full portion.

Mr. Frost persevered. He visited Keene four or five times in the course of a few days, and pressed the matter, and Keene finally proposed $1500 as the least he would take.

Frost informed Jones of this, and Jones said: “Then I shall give it up; I shall never think of settling.” Frost, however, suggested that he and Jones should go into a calculation and see whether it was. out of the way or not. They then made a calculation, and upon that calculation the estate amounted to a little over $1500 a share.

. Frost then insisted that Jones should pay the girls $1000, instead of $800, and pay the debts and legacy. Jones objected;, said it would involve him too much in debt; but finally yielded to Frost’s solicitations and appeals, and agreed that he should offer them $1000; and no further objection seems to have been made to Keene’s demand of $1500.

The compromise then progressed. Frost proposed that Pfaebe Keene should fake the corner house and lot as part of the $1500. She and her husband were willing, if they could agree with Jones upon the price. Jones was very loth to give it up, but finally agreed to let them have it, first, at $500, then at $550, having discovered that the lot contained half an acre more than was first supposed ; and Keene and wife were to have Jones’ bond for $950.

Frost’s account of the negotiation with Rachel, after this calculation had been made, is as follows : He says he first asked Rachel, “ Are you willing to take $800, as you have offered ? ” She said she didn’t know but she should be, rather than take the laud. Said he, “Rachel, the shares amount to $1500, as near as we can come at it; but there are $200 debts, $800 legacy, and the widow’s dower to come out; now, Jones has agreed to give you $1000, and take them on himself; will you be entirely satisfied?” She said, “Yes, entirely satisfied.” “Well, now,” said he, “Jones will, besides, pay for the clothing you got on the funeral occasion.” Then she clapped her hands and said, “ I will never open my mouth, if it should be worth ten times as much.”

Hannah, he says, simply acquiesced uniformly in what the others did.

Some, other facts are stated by Frost which are important.

We learn from him that Jones was greatly dissatisfied with the will, and that this dissatisfaction exhibited itself very soon after the father’s death. He said, in the earliest conversations about the estate, that he would sell his share and go away, if he could not get the whole of the real estate; he would sell out his interest, and have nothing to do with it. This would break up the family. This, Frost deprecated, and labored to secure such terms for him as would induce him to remain.

Whether Jones knew the real amount of the estate or not, it is manifest Frost did not, at the time he first entered upon the plan of bringing about the arrangement, nor does it appear he learned it accurately afterwards. He proceeded, not upon the ascertained value of the property, but upon the idea that Jones must be somehow satisfied ; and took as his basis the legacy of $800 left Amanda and the remarks of Bachel and Hannah, that they would prefer that to their share of the land ; and the idea never seems to have occurred to Frost that it was important to know the value of the interests with which he was dealing, until Keene insisted that he would take no less than $1500.

And, again, the calculation which he and Jones then made was manifestly erroneous. They had no papers, kept no memoranda, and did not exhibit'even the estimate they made to the other parties. Frost does not remember what the farm or meadow was put down at; and he thinks the personal estate was set down at $1000 — a mistake remarkable, when it is remembered that this was some days after the death ; that there were good money securities then in the house where the calculation was made, amounting to near $2500, and other property in the house and on the farm worth over $1000.

And it is clear that, from the beginning to the end of this negotiation, neither Jones nor Frost ever made out for the examination of the sisters, any inventory or estimate of the value of the real and personal property, nor ever gave them any information on the subject, except the communication that Frost made to Hannah and Bachel, after the calculation above mentioned.

In this state of facts it becomes important to settle, if we can, two questions : 1. What was the value of the estate at the time? 2. Did Jones know it?

Several witnesses have, been examined as to the value of the land. Farrand, Biker, Crane, and Sidman put the homestead farm at about $100 an acre; Bandolph, Munn, and Cooman put it from $3850 to $4620 in the whole. There were 77 acres, generally good land. The buildings, though old, were substantial, and in pretty good order. It is admitted to have been worth $300 per annum, in 1832, and $400 now. Jones sold from it about $1500 of wood in lots, as it stood. Good land, in that neighborhood, was worth $100 an acre, and would yield $6 an acre clear. There was a cider-house on it, valued, with the land on which it stood, at $400, and a house called the corner-house, which, with the lot of two acres, was valued at $550. Weighing this testimony in connection with these facts, I think $7000 a low estimate of the value of the farm in 1832. A fair average of the value fixed by the witnesses will bring the 75 acres in Caldwell to $1100, and the salt meadow to $300. This will give us $8400 as the actual value of the real estate.

This was subject to the dower of Mrs. Crane, the widow. The witnesses fix the value of this at about $1000. The third of $8400 is $2800, the interest of this $168 per annum. She was 61 years of age. Upon the principles adopted in the annuity tables used by insurance companies, a woman of 61, of good health and constitution, must pay $1600 for a life annuity of $160; and deducting $8 per annum as the profit of the insurer, $1600 would be exactly equal to her dower in the real estate. I am disposed to adopt this as the fair value. This would leave the real estate worth $6800 free and dear of dower; then deduct $300 as the value of half the cider house with the one acre lot devised to Jones, and it leaves a clear real estate of $6500 for the general devisees.

Then take the personal estate at the value admitted by Jones, $3518, and deduct the debts, $192, the legacy to Amanda, $800, and $200 for commissions and expenses in settling the estate, and it leaves of personalty $2326. Add to this the $6500 of real estate, and we have $8826 as the entire value of the estate devised to Jones, Phebe, Eachel, Hannah, and Eunice, or $1765 each share.

I have not taken into consideration, on the one hand, the alleged undervaluation in the inventory of the personalty, nor, on the other, the alleged claim of Jones against the estate for services. I do not think either sufficiently proved.

But, 2. Did Jones know the real value of the estate, at the time?

The allegations of the bill are that Jones was fully aware of the amount of money at interest; that complainant was ignorant, &e., and that he fraudulently concealed the information, <fce. And again, that he knew the fact of there being money at interest, and the amount thereof, &c.; and that after he had, by means of his more favorable situation for the purpose, being the only son of the family, made himself acquainted with the nature and amount of the estate, he conceived the design, &a.

The defendant, in his answer, does not deny that he was aware of the amount of money at interest, or that he had made himself acquainted with the nature and amount of the estate. But he says that during all the time the subject of such arrangement was under consideration, all the bonds, notes, vouchers, securities, accounts, and other papers of the said Joseph Crane were in the possession and custody of his widow, the mother of the said Rachel Ann, and of this defendant, and not in the custody and possession of this defendant, and were as accessible to the said Rachel Ann as to this defendant. That he is informed and believes the value of the estate, real and personal, and Rachel A.nn’s interest and right therein was fairly and correctly represented to her by Frost; and denies that he was relied upon to furnish information respecting said estate, or that he concealed or attempted to conceal the value from her, or undervalued her right and interest in it.

This, so far from being a denial, is a substantial admission of the charge that “'at the time of the negotiation he knew the true value and amount of both the real and personal estate.”

That Rachel and Hannah, on the other hand, were ignorant of the real value of the estate, I think is manifest. They offered to take $800 when the shares of the personalty alone amounted to nearly $500 each, and it can hardly be supposed they would have been contented with that sum had they known this fact. It was putting their shares of the land at but a little over $300. The calculation made by Frost and Jones after Keene demanded $1500, was communicated to them as a new discovery made in the case, and Rachel said when the $1000, &c., was offered, that she would never open her mouth if it turned out worth ten times as much. This testimony is abundantly sufficient to rebut any presumption of knowledge which might be drawn from these circumstances and situation.

The case then, in short, is this: The defendant, aware that the sisters’ shares of the estate, under the will, was over $1700 each, and without disclosing the true value, of which they were ignorant, to them, but causing or permitting the shares to be represented as worth only $1500, chargeable with debts, legacy, dower, &c., purchased the interests of Rachel and Hannah foi $940 each, (that being the real value of the bonds lie gave) paying some small bills for Eaehel in addition, and at tiie same time purchased the share of another sister, Phebe Keene, for $1500.

The answer of the defendant to this case is, the sisters were -if age, were competent to contract, had the means of ascertaining the value of the property they were disposing of. were desirous of the arrangement, satisfied at the time the contract wag executed, they acquiesced in it for several years, and it was a family arrangement designed to keep the property and the family together, and as such should be favorably regarded by the court.

We are then to inquire for the rules of lav/ as administered by courts of equity in cases of this kind. It is (he case of an agreement fully executed, and which must be sustained unless tainted with actual or constructive fraud in its inception.

And, 1. As to the objection of the acquiescence of the complainant up to the time of her marriage, the circumstances herc’j, and the eases of East and ux. v. Thornbury, 3 Peere Wms. 127, and Gillespie v. Moon, 2 Johns. Ch. R. 585, and several other cases hereafter cited, furnish a sufficient answer.

In East and ux. v. Thornbury, the plaintiff' had a legacy of £300 by the will of her uncle, payable one year after his death. The testator died in 1707. The legacy remained unpaid, and in 1721 the plaintiff demanded it. The executor desired them to wait two years; they consented, and under the impression that they were only entitled to interest on the legacy from the date of the demand, at the end of the time they received the £300 and two years’ interest, and gave a receipt for it and the two years’ interest up to the time of payment. The plaintiffs acquiesced in this settlement for 7 years, and then filed their bill, alleging the mistake and praying to have the arrears of interest paid. It was contended by the defendants that there was no pretence of fraud, no concealment or misrepresentation, that the will was of record and as accessible to the plaintiff as the defendant, that the plaintiff was a barrister at law and presumed to know his rights, and that the receipts were drawn by himself. But the court said the plaintiffs were, notwithstanding this, entitled to have the mistake corrected, and decreed the interest to be paid.

In Gillespie v. Moon, it was held that a mistake made by the grantor in a deed, by which she conveyed fifty acres more land • than .she intended, might be corrected, though she bad for several years taken no step to correct it, and although, in the meantime, the purchaser had put improvements upon the part not intended to be included by the grantor. And the Chancellor said it would be a great defect in the moral jurisdiction of the court if there was no relief for such a case.

2. Misrepresentation or concealment has always been held a clear ground for equitable relief against a contract brought about by such means. In Fulton’s Ex’rs v. Roosevelt, 5 Johns. Ch. R. 173, Fulton bought a tract of laud which was represented by the defendant to contain a valuable coal mine; the representation turned out to be untrue. The mine was not situated as represented, nor was it as accessible or as valuable, and the court enjoined the defendant from recovering the consideration agreed to be paid for it. This case was.carried to the Court of Errors, and the decree affirmed. 2 Gowen 129. In this case, it seems Fulton made the application to purchase; Roosevelt communicated in writing the facts which induced him to place great value on the mine, and referred Fulton to Baker, an engineer in Fulton’s employ, who confirmed the defendant’s statements. The books are full of cases of this kind. But it is to the class of cases which relate to family settlements, and are more strictly analogous to the one in hand, that I have chiefly directed my attention.

Judge Story, in his valuable treatise on Equity J urisprudence, Vol. I., Sec. 217, lays it down as a settled principle, that in cases of family agreements and compromise, if there is any concealment of material facts the compromise will be held invalid, upon the ground of mutual trust and confidence reposed between the parties, and he cites Gordon v. Gordon, 3 Swanston. 399 to 477; Leonard v. Leonard, 2 Ball and Beatty 171 to 182.

Gordon v. Gordon, above referred to, was several times elab- ° orately argued, and decided by Lord Eldon upon great consideration. The case was that of two several agreements between two brothers, for the division of the family estates. One made twenty years and the other four years before the filing of the bill; the eldest had been led to believe that his father and mother had not been married till after his birth, and that he was illegitimate. The younger was aware, at the time of the agreement, that there had been a marriage defacto ; not that he knew the marriage was a legal marriage, but that a ceremony of marriage, whether valid or not, had been performed previous to the public marriage, and previous to the birth of his elder brother. The elder brother was not aware of this, and he, the younger, did not disclose the fact, to him. The Chancellor said it was his duty to disclose it. He admitted fully the doctrine of Stapleton v. Stapleton, 1 Atkyns, and Cann v. Cann, 1 Peere Wms. 723, cited by the counsel for the defendants here, that where family agreements have been fairly entered into without concealment or imposition upon either side, and with no suppression of what is true, or suggestion of what is false, which was the fact in both those cases, then, although the parties may have greatly misunderstood their situation and mistaken their rights, a court of equity will not disturb the quiet which is the consequence of that agreement; but he said, that if James Gordon, the younger brother, knew that there was even a rumor of a private marriage, whether the fact had been so or not, yet, if he withheld it from his elder brother, the bargain could not stand. He said that in contracts of this kind full and complete communication of all material circumstances is what the court must insist on.

Stapleton v. Stapleton, 1 Atkyns 10, was considered by the court a reasonable agreement made between father and sou, and no compulsion, concealment or misrepresentation pretended. It was held good.

In the case of Gann v. Gann, above alluded to, Lord Mae» clesfield admitted that if a party releasing is ignorant of his right, or if his right is concealed from him by the person to whom the release is made, these will be good reasons for setting aside the release; and in a note to that case, the case of Broderick v. Broderick, 1 Peere Wms. 239, is cited, and fully sustains this principle.

Leonard v. Leonard, the other case referred to by Judge Story, wms decided in the Irish Chancery, by Lord Manners, in 1812. It was a bill to set aside a deed as fraudulent and void for misrepresentation and mistake. Estates were purchased by two half brothers; one died, and the heir of the deceased released to the survivor, for an annuity of £100, in consequence of an opinion adverse to the heir, obtained of counsel by the survivor, upon a case stating that the estates were held by original parties in joint tenancy; but it turned out that they held some of them as tenants in common. The case on which the opinion was founded had been submitted to the agent of the heir before it passed into the hands of counsel, and he made some alterations in it. But the survivor had the title deeds. The heir had acquiesced in the arrangement nine years. The release was set aside. The court said, when it is made manifest that the compromise was entered into between parties under a misapprehension of a fact known to the one party or his agent, and unknown or misrepresented to the other, the compromise is deficient in that which is essential to its validity — that both parties were in equal ignorance.

Stockley v. Stockley, 1 Vesey and Beame 23, cited by defendant’s counsel, was a case decided by Lord Eldon, 7 years before the case of Gordon v. Gordon, and does not conflict with it in principle. There was no misrepresentation, no concealment, no mistake in that case; it was a case of ambiguity in a devise, and a settlement thereupon by two brothers under the advice of the grandfather and in his presence. The difficulty arose 18 or 19 years afterwards, on the grandfather’s death. One of the sons alleged that he assented to the agreement upon the promise of the grandfather that he would make up the difference in value between the lands exchanged under the agreement, to the elder brother in his will; that brother formed expectations from the will that were not realized, and resisted a bill for specific performance of the agreement. Under these circumstances, the court established the agreement.

Pullen v. Ready, 2 Atkyns 587, was where legacies were given, to be forfeited by marriage without consent. One of the legatees did marry without consent; and a family arrangement to.ik place, giving him the benefit of the legacy notwithstanding. In this case, in the language of Lord Hardwicke, “the agreement was made after the marriage, and with the will out of which the forfeiture arose lying before the parties and their counsel.” It was sustained.

Corey v. Corey, 1 Vesey 19, was a family agreement reasonable in itself but its enforcement was resisted by one of the parties, on the ground that he was drunk at the time; but if, was not pretended that he was made so by the other parties, and no unfair advantage was taken. The agreement was held binding.

Kinchant v. Kinchant, 1 Brown’s Ch. C. 369, was a family settlement, and was sustained by Justice Gould, who sat for Lord Thurlow. The complaint was, improper influence used by the father ; but the court held there was none; and Gould said, if the settlement had been an unreasonable one he would not have sustained it.

These cases go so far as to establish the principle that courts of equity look with a favorable eye upon agreements made to preserve and maintain the peace of families, but only so far as those agreements are fairly obtained. I do not understand that any of these cases go so far, nor have I been able to find a case, except Frank v. Frank, Ch. Ca. 84, that goes so far as to say that where there is concealment or misrepresentation, the suggestion of what is false, or the suppression of what is true, by either party to an agreement, courts of equity will sustain them, on the ground that they are family agreements ; and in many of the cases agreements have been set aside on the ground of mistake or misapprehension, where the agreement itself was grossly inequitable. In Gee v. Speneer, 1 Vernon 32, a case in Lord Nottingham’s time, property was inherited by three sisters, which became involved in a Chancery suit, and the husband of one of the sisters released his interest to the others, in consideration that they would bear the charges of the suit. It was set aside on the ground of misapprehension of the party. And see Pussey v. Desbouverie, 3 Peers Wms. 315, and Bingham v. Bingham, 1 Vesey 126.

In reference to the ease of Frank v. Frank, I have to say, on the authority of Eldon, in 10 Vesey, Jr., 582; Loughborough, in 1 Henry Blackstone 332, and Ch. Kent, in 1 Com. 492, that Ch. Cases is a book of very indifferent authority ; and the case itself has seldom been mentioned but with disapprobation. Lord Manners, in Leonord v. Leonard, repudiated it altogether.

There is a case in Eden’s Reports 175, Wyckerly v. Wyckerly, decided by Lord Northington in 1763, which has been cited and relied on, where an estate was re-settled upon a family arrangement entered into by father and son upon the son’s marriage j but that was an equitable arrangement, entered into upon a full and lair understanding all round. The allegation of undue influence exercised by the father was unsupported; and the Chancellor said if there had been want of consideration or undue means used in procuring it, his decision would have been different.

Applying, then, the principles which I find well settléd in the books to the facts of this case, as I understand them, I feel bound to advise his Honor, the Chancellor, to make a decree in conformity with the prayer of the complainant’s bill. For, I think the agreement with Rachel Ann and Hannah was, in the first place, inequitable. Upon the principles of this settlement with these two sisters, if it had been extended to Phebe, who was married, and Eunice, who was an infant, the four sisters would have received $940 each, as their shares, while the son would have taken the balance, being $4640, of an estate devised to him and his four sisters in equal shares; and it does not help the equity of the agreement, as between Jones and Rachel and Hannah, that Phebe, who had a husband to insist upon her rights, got $1500, or that Eunice, who was an infant, could not be made a party to it.

In the second place, I think there was some undue means used to procure this agreement. I cannot resist the unfavorable impression made upon my mind by the declarations of the son, repeated on every occasion of difficulty being interposed,'that he would sell out his share and go away; that he must have all the land or he would have nothing to do with it. I think the dissatisfaction expressed by him the moment the will was read, and these declarations, so constantly repeated, had at least something to do with producing the ready consent of the sisters to take anything, even $800, rather than that their only brother, at such a time, should abandon bis house and theirs, and leave them to manage their share of the estate themselves. He was not so much afraid of debt, I think, as he professed to be, for though by the arrangement lie got money securities of the estate to a large amount, he appropriated no part of it to pay his sisters, and lie was reluctant to relieve himself from part of Keene’s §1500 by parting with the corner-house and lot, which could have been no essential appendage to a farm of 77 acres; and the very indifference or reluctance he manifested towards becoming the purchaser, was calculated to depreciate, in the view of his sisters, the value of the estate. 1 see no good reason why lie should have been dissatisfied with the will, nor why he could not have managed the land a little while as a tenant in common with his sisters, nor why he should not have told that it could, when Eunice came of age, or possibly before, be sold together, and the proceeds divided; though 1 do not say that I am so dear about it that 1 would venture to annul the agreement for this, were it the only point.

But, in the third place, I think there was here both improper concealment and misrepresentation. Concealment in this, that he did not, upon first entering on, or in the progress of the negotiation with his sisters, have a fair inventory or valuation of the estate made out and exhibited to them ; and misrepresentation in this, that in the estímate he and Frost made, they put the personal estate at less than one-third of its true value, and suffered the sisters to act under that mistake. The bill charges Mm with full knowledge of the estate and its value, and he virtually admits it in his answer.

I feel bound to say, upon authority and upon principle, that •where a father devises an estate to a son and daughters, the sou knowing its true'value, and the daughters not knowing it, the son, when he enters into a treaty with them for a different settlement and disposition of that estate, should be scrupulously careful to apprise them fully of its value, of their rights, and of every circumstance necessary to enable them to treat upon terms of perfect equality; and that concealment or misrepresentation, or any conduct on his part calculated to put them at a disadvantage in the negotiation, will be fatal to the contract, if a court of equity should come to deal with it.

The doctrine “caveat emptor” does not apply in such a case, because it will always be presumed, unless the contrary appear, that the sisters repose confidence in a brother.

This disposes of the case, without going into the question of Hannah’s capacity to contract, or how far, if she was shown to be incapable, the court would interfere for the benefit of the heirs. All the objections to the contract made with Rachel apply with still greater force to that made with Hannah. She seems merely to have acquiesced, with little or no inquiry, in what the others did, and if she exercised any reflection or judgment about it, I see no evidence of it in the case.

I shall advise his Honor, the Chancellor, to decree that the ideases executed by Rachel and Hannah be delivered up to be canceled, and that thereupon the bond held by Rachel be surrendered 5 and that Rachel and the heirs of Hannah be let in to their shares under the will of the testator, and that a proper account be taken under the order of the court.

Reversed, 2 Hal. Ch. 631.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    ANN P. WHITE ET AL. v. WILLIAM WHITE, CHARLES S. OLDEN AND STACY A. PAXSON, EXECUTORS, &c., OF SAMUEL S. OLDEN.
    The will first gave A. P. W. the sum of $10,000, and then gave a number of pecuniary legacies, and certain specific legacies. Then followed this clause : “ My bank stock I wish to make a part of A. P. W.’s legacy, as they will give her less trouble in collecting.” The will then gave certain other specific legacies, and gave all the remainder of his property to four cousins. Then followed this clause: “I wish that the house I have lately purchased of C. M C., valued at $4000, be a part of my dear aunt’s (A. P. W.’s) legacy, and that in the diyision of her portion, my Trenton Bank stock be calculated at $40 per share, and the Easton Bank stock at $30 per share.” The personal estate was insufficient to pay the pecuniary legacies in full. Seld, that A. P. Wc. took the house and lot and the bank stock at the valuations thereof, respec« lively, given by the will, without being subject to abatement.

      Samuel S. Olden, late of the county of Mercer, in this state, died on the 5th day of June, 1841, leaving a will, dated February 8th, 1841, by which he bequeathed to his “ dear aunt, Ann P. White, who, since she has had the charge of us, has acted the part of a kind and devoted mother, the sum of $10,000, to be paid to her as soon as practicable after my decease, or with interest from that time.” The will then gave a number of pecuniary legacies and certain specific legacies. Then follows this clause: “ My bank stock I wish to make a part of my dear aunt’s legacy, as they will give less trouble in collecting.” The will then gives certain other specific legacies; and then gives all the remainder of his property, both real and personal, to be equally divided among his four cousins, Job, Robert, George and John White. Then follows this clause : “ I wish that the house I have lately purchased of C. M. Campbell, valued at $4000, be a part of my dear aunt’s legacy ; and that in the division of her portion, my Trenton Bank be calculated at $40 per share, and the Easton Bank at $30 per share.” He then appoints his cousin, William White, and friends, Charles S. Olden and Stacy A. Paxson, executors of the will. By a codicil to his said will, dated May 28th, 1841, he gave and devised to his aunt, Ann P. White, in fee, a lot of woodland of fifteen acres, and all the provisions, and the vessels containing the same, that might be in the house where he resided, two pigs, one cow, and all the plate in his house; and then gave three other small pecuniary legacies.
    The bill states that, in addition to the house and lot directed by the will to be made a part of Ann P. White’s legacy, and the lot of woodland mentioned in the will, the testator died seized of a very considerable real estate, consisting of two large and valuable farms, in the said county of Mercer, and that Job White, Robert White, George White and John White, to whom the remainder of the testator’s property was given, after his death took possession of the same.
    The bill is exhibited by Ann P. White and other legatees, against the executors and the residuary devisees, aud prays an account of the personal estate and of the debts of the testator, and an account of the rents and profits of the real estate taken possession of by the residuary devisees; and that the complainants may be paid the full amount of their respective legacies, out of the personal estate, if that be sufficient for the purpose, and if not, then that a sufficient part of the real estate in possession of the residuary legatees may be sold, in aid of the personal estate, to pay the legacies; or that the debts be paid out of the real estate, and the legacies be paid out of the personal estate.
    A demurrer was filed to this bill, by the residuary devisees; and the executors of the will put in an answer to the bill. Job White afterwards died, leaving a will, devising all his real estate to Benjamin C. White, Elizabeth T. White and Martha Ann White ; and thereupon a bill of revivor and supplement was filed, making the said devisees of Job White parties to the suit.
    The cause was heard on the demurrer, and a decree made therein by the Court of Chancery, on the 11th of July, 1843, from which an appeal was taken to the Court of Errors and Appeals.
    In May, 1846, in conformity with the decree of the Court of Errors and Appeals, it was ordered by the court that the demurrer be allowed, and that the bill, so far as it related to the residuary devisees, be dismissed.
    In September, 1846, by consent of the solicitor for the complainants and the solicitor for the executors of the will, an order was made referring it to a master of this court to take and state an account of the personal .estate not specifically bequeathed, and of the debts and funeral and testamentary expenses, and of the legacies and the amounts due thereon, respectively ; and that if the personal estate not specifically bequeathed should be found insufficient to pay the legacies in full, the legacies should abate, giving the master liberty to state any special cireumsiauces, and reserving all further equity and directions until after the master shall have made his report.
    On the 1st of March, 1847, the master’s report came in. The master reported that the personal estate not specifically bequeathed amounts to $37,963,65J; that the debts and funeral and testamentary expenses amount to $13,111.01 ; leaving a balance of assets in the hands of the executors of $24,852.64; that the legacies given by the will and codicil amount to $33,325; that of the assets in the hands of the executors, $1847 consists of securities and stock not yet realized, and the value of which is uncertain, and that the last-mentioned sum should be deducted, to show the amount now in hand for distribution, leaving the said securities and stock to be hereafter accounted for. That after making the said deduction, the amount now on hand for distribution is $22,995.64. The master reports that all the said legacies are liable to abatement, and that an abatement of 31 per cent, is necessary to the present settlement, which will leave $1858.39 of money and securities in the hands of the executors to be accounted for hereafter. And the master gives, in a schedule annexed to his report, a statement of the sums to be paid to the legatees, respectively, on the principle adopted by him for distributing the amount now to be distributed among the legatees.
    By the said schedule, the amount given by the will to Ann P. White, (being $10,000,) is made to abate $3100; and the master reports the amount now to be paid to her to be $6900. The amounts to be now paid on all the other legacies, respectively, are ascertained by making a like abatement on each.
    Exceptions to this report were filed in behalf of Ann P„ White.
    The first, exception is, that the master has reported that the legacy of $10,000 to Ann P. White, and which the will directs should be paid to her, in part, by the house and lot he purchased of C. M. Campbell, valued at $4000, and in part by his bank stock in the Trenton Bank and in the Easton Bank, at certain prices or valuations named in the will, is subject"to abatement in common with the other legacies: whereas the said legacy is either a specific or a demonstrative legacy, and not a general or pecuniary legacy, and therefore not subject to abatement in common with the pecuniary legacies.
    The second exception is: For that the testator, though he first gave the said Ann P. White a pecuniary legacy of $10,000, yet that, in subsequent parts of his will, he altered and modified the said bequest by giving and devising to her, specifically, in lieu of so much of said sum, certain real estate in the will named, at the price or value of $4000; and also his stock in the Trenton Bank at $40 a share, and his stock in the Easton Bank, at $30 a share; and that the master has subjected the whole $10,000, of which the property above mentioned and specifically given, at specific values,.were to constitute a part, to abatement, in common with the pecuniary legacies.
    The third exception is: Because, if any part of the $10,000 is subject to abatement, it is only so much thereof as would remain to be paid in money, after deducting therefrom the said house and lot at $4000, and the said bank stocks, at the values per share mentioned in the will; whereas the master has reported that the whole sum of $10,000 is subject to abatement.
    The cause was heard on these exceptions.

      Jos. C. Hornblower and J. P. Bradley, in support of the exceptions.
    They cited 3 Dessau. 386-7; 7 Ves., Jr., 529, 530; 1 P. Wms. 403, 777; 18 Ves., Jr., 463 ; Ib. 146, 15 ; Ib. 384, 389 ; 1 Bevan’s Cond. Ch. Rep. 405; 1 Keene’s Rep. 210, 410; 4 Ves., Jr., 157; 1 Roper on Legacies 150, 1, 2, 3, 5, 163, 4, 6, 173, 7, 181, 3, 255; 2 Wms. on Ex’rs 740, 2, 3, 5, 6, 842; 2 Ves. 561, 4; Finch Rep. 303; Thos. Raym. 335; 2 P. Wms. 328, 469 ; Ambler 310 ; 2 Ves. 640 ; 4 16.150, 555, 750; 5 Ib. 199; 11 Ib. 607 ; 5 Ves. & Beam 2 ; 1 Meriv. 178 ; 2 Mad. Rep. 223; 2 Sim. & Stuart 354 ; 3 Eng. Cond. Ch. 194; 2 Young & Col. 90; 7 John. Ch. Rep. 258; 1 Dessau. 202; 3 16. 369.

      P. D. Vroom, contra.

   The Chancellor.

The testator first gives to his aunt, Ann P. White, (who, he says, has acted ihe part of a kind and devoted mother,) the sum of $10,000, to be paid to her as soon as-practicable after his decease, or with interest from that time,, and then gives a number of pecuniary legacies, and certain specific legacies. Then follows this clause: “My bank stock I wish to make a part of my dear aunt’s legacy, as they will givener less trouble in collecting.” He then gives certain other specific legacies, and gives all the remainder of his property, real and personal, to his four cousins, Job, Robert, George .and John White. Then follows this clause: “ I wish that the house I have lately purchased of C. M. Campbell, valued at $4000, be a part of my dear aunt’s legacy, and that in the division of her portion, my Trenton Bank be calculated -at $40 per share, and my Easton Bank at $30 per share.”

By a codicil to his will he gives to his aunt, Ann P. White, in fee, a lot of woodland, of fifteen acres, and all the provisions, and vessels containing the same, that might be in the house where he resided; two pigs, one eow, and all the plate in his house ; and then gives three other small pecuniary legacies.

The personal estate, after paying the debts and funeral and testamentary expenses, is insufficient to pay the pecuniary legacies in full.

The master has reported that, under the several clauses of the will in favor of Ann P. White, above stated, the gifts made to her should be considered in the light of a pecuniary legacy of $10,000, and should be subject to an abatement., on that sum, ratably with the other pecuniary legacies; which abatement would reduce what she is to receive to $6900; and that she should take the Campbell house and lot as $4000 of this $6900, and the bank stock, at the valuations fixed thereon by the testator in his will, as so much more of this $6900. The Trenton Bank stock is appraised, in the inventory, at $30 a share, instead of $40, the valuation fixed thereon by the will; and the Easton Bank stock is appraised at $30 a share, the same as the valuation thereof fixed by the will.

I agree with the master that, under the before-stated clauses of this will, Ann P. White is to take the Campbell house and lot at $4000, and the bank stock at the valuations thereof fixed by the will, as part of the $10,000 mentioned in the first of the said clauses. But the master has come to the conclusion on the question of abatement to which I have not been able to assent.

As to the house aud lot, it seems clear to me that the principle adopted by the master would not be just or reasonable. By the first of these clauses, the testator had given to A. P. White a pecuniary legacy of $10,000. If he had made no change in this respect, the ratable proportion of this whole sum would have been taken from the personal estate, and the other pecuniary legatees would have received proportionably smaller dividends on the legacies to them. The testator afterwards gives her a house and lot, at a fixed value, as part of, that is, instead of so much of the $10,000. This relieves the personal estate . of so much of the $10,000 to the benefit, to that extent, of the pecuniary legatees. I cannot see with what propriety the pecuniary legatees can claim that this house and lot, or the value at which it was given to her by the testator, in relief of the personal estate, to that extent, in favor of the legatees out of the personal estate, shall be subject to abatement. If he had given her a house and lot valued at $10,000, instead of the said legacy, it would not be claimed that the house, or the value thereof, was subject to abatement. By what rule can it be claimed that a house.and lot given instead of part of said legacy, must abate? The principle might lead to strange consequences. If an abatement of 75, instead of 31 per cent, had been necessary, A. P. White, on the principle adopted by the master, would have been obliged to pay $1500 to get a house and lot given her by the testator.

As to the bank stock, I am of opinion, also, that neither the stock nor the amount of the valuation thereof is subject to abatement. I will not enter upon a review of the.numerous decisions on the subject of specific and demonstrative legacies. No case was cited, nor have I found any that affords much aid in the consideration of the question discussed as arising under this will.

The will bequeaths to Ann P. White the stock. This is so considered by the master; for he gives it to her; and that, at the valuation fixed by the testator, though the appraised value of a part of it is $10 less per share. The argument in favor of the report is that the stock, or the testator’s valuation of it, should be subject to abatement, because it is given as part of the $10,000 given as a pecuniary legacy in a former part of the will. In my view, we are to read the will according to the idea or intention the testator must be supposed to have had when the subsequent provisions of it in favor of Ann P. White were made. Clearly a new and different idea prevailed with him, at this point of time, from that which lie had when the first clause was dictated, giving her a money legacy of $10,000. At this point of time, he certainly intended to give, and did give to her the house and lot and the bank stock; and his calling them a part of her legacy of $10,000 was simply because he had at first intended to give, and given her a money legacy of that amount.

We can hardly suppose that if the last intention had existed at the time he gave the pecuniary legacy of $10,000, the language of the will would have been the same it now is. It can hardly be supposed he would have begun by saying “ I give Arm P. White the sum of $10,000.” But if he had, and had then immediately added that he gave her the house and lot as part of it, and his bank stock, at fixed valuations, as another part of it, would it be any the less a gift to her of the house and the bank stock ?

The report of the master must be corrected in these particulars.

Order accordingly.


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    JAMES L. WILSON AND PETER DAVISON, ADMINISTRATORS DE BONIS NON WITH THE WILL OF FERDINAND SHIBLA ANNEXED, v. MILTON ELY, SURVIVING ADMINISTRATOR, &c., OF JOHN ELY.
    1. F. S. devised and bequeathed to his wife, D., the use of all his estate during her life ; and directed that after her death, the estate should be sold, and the proceeds divided among certain persons named in the will. The widow, D. was sole acting executrix of the will. She afterwards married .1. Ii., who received from her, at different times, moneys belonging to the estate of If. S., deceased, and gave receipts therefor as moneys of the said estate. Held, that D.’s being entitled to the use of the moneys during her life, did not destroy the trust character in which she, as executrix, held the money, and that J. E. was bound by the same trust.
    2. Trusts are enforced against one who comes into possession of the property bound by the trust, with notice of the trust.

      3. The statute of limitations does not run against trusts.
    4. The presenting, by a complainant in chancery, to the administrator of an estate, a claim for which the intestate was bound as trustee, is no reason why the suit in this court to enforce the trust should not proceed.
    Ferdinand Shibla died March 25fch, 1827, leaving a will, by which he gave, devised and bequeathed to his wife, Deborah, the use and enjoyment of all his estate, real and personal, during her natural life; and directed that after her decease, all the rest and residue of his estate, both real and persona], should be sold, and the proceeds thereof, together with all other estate he might be entitled to on debts to be received or otherwise, should be divided among certain persons in the will named ; and appointed his said wife and John I. Little executors of his will. The widow alone proved the will and acted as executor. The inventory of the personal estate of the testator amounted to $1304.40; it was not exhibited in the cause; and it did not appear of what the persona] property consisted. On the 11th of February, 1840, the widow intermarried with John Ely.
    The bill charges that he, in right of his wife, possessed himself of the whole of the said real and personal estate of the testator. After the marriage, Ely gave to his wife, the said Deborah, the following receipts or certificates: one, dated April 1st, 1830, by which he acknowledges to have received from her $100, “ the money of her former husband;” one dated May 27th, 1830, for $53, “ being moneys of'her former husband;” one dated April 8th, 1831, for $400, “being moneys of her former husband, which said moneys is to be paid to her for her said use;” one dated February 23d, 1832, as follows : “ I have in keeping of my wife, money of her former husband, $212.”
    John Ely died October 20th, 1830, intestate, leaving the said Deborah him surviving.
    Milton Ely, the defendant, is the surviving administrator of .the said John Ely, deceased. Deborah Ely died intestate, August 10th, 1842. The complainants are the administrators de ■bonis non, with the will of Ferdinand Shibla annexed.
    The bill prays that the defendant, Milton Ely, surviving administrator of John Ely, deceased, may be decreed to account •for the personal estate of the testator, Ferdinand Shibla, which. came to the possession of said John Ely and Deborah his wife, or either of them, and for the rents and profits of the said real estate.
    The answer says that the defendant is informed and believes that the money for which the said certificates were given, together with about $40 included in a note given by Jeremiah Newman ¡o-the said John Ely, by the advice and consent of the said Deoorah, is the whole amount of moneys which the said John Ely received of the estate of the said testator, F. Shibla, for all which sums he accounted to the said Deborah, as the defendant is informed and believes.
    The answer denies that John Ely, from his marriage to his death, or at any time during his life, occupied the real estate of the said testator, or received the rents and profits thereof and converted the same to his own use. The defendant submits to act in the premises under the direction and indemnity of the court.
    The answer sets up the statute of limitations, and also that there is a defence at law.
    By a supplemental answer, the defendant says that, under an order of the Orphans’ Court of Monmouth, he has sold all the -estate of John Ely, deceased, real and personal; that among the claims presented to him against the estate of John Ely, deceased, is the demand of the complainants in this cause, and that the settlement of this claim, as well as others, is now pending undetermined in said Orphans’ Court, and that he is satisfied, and therefore charges, that the estate of said John Ely, deceased, is insolvent.

      D. B. Ryall, for complainants.
    He cited 3 Johns. Ch. 190; 4 Ib. 136; 1 Ib. 52, 119; 10 Johns. Rep. 495.

      Wm. L. Dayton, for defendant.
   The Chancellor.

The receipts or certificates given by John Ely to his wife, show that the moneys therein stated to have been received by him from her, were, the moneys of the estate of the testator, Ferdinand Shibla. Deborah, the wife of Ely, was the executrix of Shibla’s will, and as such, held this money in trust. Her being by the will entitled to the use of it during her life, does not destroy the.trust character in which she, as executrix, held the money. -John Ely, her second husband, having, after his intermarriage with her, received a part of this money, was bound by the same trust. Scho, and Lef. 270. He must be held to have become possessed in right of his wife of such of the assets of the testator of whose will she was executrix as he received from her, and as husband of the executrix, he was rightfully possessed; the money was in the hands of both as trustees. And if this was not so, trusts are enforced, not only against him who is rightfully possessed of the trust property as trustee, but also against one who comes into possession of the property bound by the trust with notice of the trust. lb. 262. And on his death his assets are chargeable in equity for the money so received bjr him. Ib. 243, 265-6, 272.

This disposes of all the grounds of defence set up in the answers except one. It disposes of the statute of limitations, for it does not run against trusts; it disposes of the defence that the remedy is at law, for all trusts are cognizable here; it disposes of the defence set up in the supplemental answer, that this claim has been presented to the defendant, as surviving administrator of Ely, under an order of the Orphans’ Court limi iting the creditors of John Ely, deceased, and is pending undetermined in that court. By an order of that court, the creditors of John Ely, deceased, were limited to a certain time within which to present their claims, under oath, to the administrator of his estate, the defendant in this suit. This could not oust the jurisdiction of this court, nor does the fact that the complainants in this case, in pursuance of the said order and in compliance therewith, presented this claim. It was certainly prudent that they should do so. But this is the proper tribunal for the settling of the questions arising in this ease.

Another ground of defence is taken in the answer. The defendant says he is informed and believes that John Ely, in his lifetime, accounted with his wife, the executrix of Ferdinand Shibla, deceased, for the moneys he so received of her.

If an executrix or administratrix marries and the goods of her testator or intestate come into the actual possession of the husband and are wasted during the coverture, there can be no doubt the husband is liable, and on his death his assets are chargeable in equity. The executrix surviving would also be liable, if the assets of the husband proved insufficient. It is unnecessary to say, in this case, whether the assets of the husband, after his decease, would be liable if he, in his lifetime, replaced the moneys or goods in the hands of the wife, the executrix, in case they were afterwards wasted by her. It is sufficient for present purposes in this case, to say that, if he replaced the money in her hands, and it was not wasted, but remained in her hands, or has since her death come into the hands of her personal representative, it would be just and equitable towards the estate of her second husband, and the creditors of that estate, to charge, in the first place, the estate of the deceased executrix in the hands of her administrator. But how can I, in this cause, and between these parties, declare and decree that the moneys were repaid by John Ely to his wife? Her administrator is not before the court. The decree in this cause, that he had repaid, could be no foundation for a suit in which to charge her estate. The complainants, then, are here with the suit in such position as to parties, that it cannot be settled in favor of the estate of John Ely, even if the proof, as now made between the parties, were entirely satisfactory that Ely repaid. If the administrator of Deborah Ely had been made a party, he might have been able satisfactorily to resist the allegation of repayment, and thus show, at least, that Ely’s estate should be first resorted to.

On the other hand, if it was entirely clear that John Ely did not replace the moneys, I do not understand that the complainants here would be entitled to any preference out of his estate over other creditors; and if they were, his whole estate might be insufficient to pay this claim, in which event, as beforesaid, the assets of the wife’s estate would be answerable for the residue; and thus two suits would be necessary before an end of this matter could be reached.

No demurrer was filed to the bill, and therefore it should not be dismissed. I think the ease should stand over that the proper parties may be made defendants.

As to the question whether John Ely replaced these moneys, any result the court might come to on the evidence now before it would be little better than conjecture; and the case shows that more light might have been furnished to the court on the subject. By the course which I have suggested as proper to be taken, an opportunity will be afforded for additional proof on this subject.


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    JAMES S. STURGES AND THOMAS T. STURGES v. JACOB ALYEA.
    1. A. and J. had given a joint bond, and A. had given a mortgage to secure it. Afterwards A., “ in consideration of certain agreements entered into between him and J.,” gave his bond to J., assuming the payment of the first bond, and indemnifying J. against it. After A. had paid half of the first bond, J. paid the other half of it, and instead of having it canceled, induced the obligee to assign it to S. and S., for the purpose of having the mortgage given by A. to secure it foreclosed in their names; and a foreclosure suit was brought in their names.
    2. The court ordered the bill to be dismissed.
    The bill states that on the 24th of August, 1840, Jacob Alyea and Thomas V. Johnson became indebted to Andrew B. Haxton, of New York, in $2564.26, and to secure the same, gave to Haxton their bond of that date, conditioned for the payment of the said sum in two years, with interest payable semi-annually ; and that Alyea, to secure the payment of the said money and interest, gave a mortgage of the same date, to Haxton, of certain real estate described in the bill, conditioned that if the said Alyea and Johnson should pay the said sum of money and interest according to the condition of the said bond, the mortgage should be void. That the mortgage was acknowledged on the 19th of October, 1840, and recorded the next day. That on the 22d of May, 1845, Haxton, in consideration of $1, to him paid by the complainants, by deed of assignment assigned the said bond and mortgage to the complainants. That the interest has been paid up to September 9th, 1844, and that $1000 of the principal has been paid, and that the residue of the said sum remains due.
    The bill is for the foreclosure of the mortgage and sale of the premises.
    Alyea alone is made defendant.
    Alyea, by his answer, admits that on the 24th of August, 1840, he and Johnson became jointly indebted to Haxton in the said sum, and gave their bond as stated in the bill, and admits that he gave the mortgage mentioned in the bill, and that the mortgage was given by him as well for the benefit of Johnson as for his benefit, and that it was given at the special instance and request of Johnson. He admits the payments mentioned in the bill, hut says that they were made by him solely, no part thereof having been paid or the money furnished by Johnson. He admits that Haxton may, in form, have executed an assignment of the bond and mortgage to the complainants, for the nominal consideration of $1, but he denies that it was made for proper and lawful purposes, and that the complainants were the lawful and bona fide purchasers of the mortgage for a valuable and good consideration; and says that the assignment was a fraudulent device of Johnson and the complainants, for the purpose of de - frauding him and depriving him of his legal and equitable rights.
    He says that at the time when the assignment bears date, Haxton received from Johnson, one of the joint obligors in the bond, the full amount of the balance due thereon, and that the same was paid off and liquidated and fully satisfied, and that if the bond and mortgage were assigned, they were not assigned to the complainants as bona fide purchasers, and not until after the whole amount of money due thereon had been paid, namely, the amount herein before stated as paid by the defendant, and the balance by Johnson, the other obligor. That he is informed and believes, that in the transfer of the said bond and mortgage, Haxton did not know the complainants, and that the assignment was procured and dictated by Johnson, and was made by Haxton on his receiving from Johnson, one of the obligors, the full amount, due thereon ; and that the money was received by Haxton in payment, and not as a consideration for the transfer to the complainants. That there is nothing due on the bond and mortgage — the same having been paid off — and that they ought, in equity, to be delivered up and canceled.
    Testimony was taken.

      L. C. Grover, for complainants.

      S. R. Grover, for defendant.
   The Chancellor.

The testimony shows that this bond was given by Alyea and Johnson, to Haxton, for a debt for which they were jointly liable, and of which, as between themselves, each was to pay one half, and that the mortgage given by Al-yea alone, on property belonging to him individually, was given to secure the said joint debt. The condition of the mortgage is, that if Alyea and Johnson shall pay to Haxton the sum mentioned in the said joint bond, and the interest thereon, the mortgage shall be void. Alyea, before the alleged assignment by Haxton to the complainants, had paid, of principal and interest on the joint bond, $1615.40. At the time of the alleged assignment, there remained due on the bond, for principal and interest, $1634.65. I have no doubt, from the testimony, that this balance, being about half the sum secured by the joint bond and the said mortgage, was in fact paid by Johnson, and that the procuring an assignment to be made by Haxton to the complainants was a device of Johnson. The case, then, thus far, is the same as if Johnson, on the payment of his half of the joint bond, had taken an assignment of the bond and mortgage to himself. If he had done so, it will not be claimed that the bond and mortgage would be valid securities in his hands for the amount so paid by him.

It seems that after the giving of the bond and mortgage, to wit, on the 28th of April, 1841, Alyea gave to Johnson á bond, in the penal sum of $5126.52, the condition of which recites the giving of the said joint bond by Alyea and Johnson to Haxton and the said mortgage by Alyea to secure the payment thereof; and provides that, in consideration of “certain agreements entered into between the said Thomas V. Johnson and the said Jacob Alyea,” and of one dollar paid by Johnson to Alyea, the said Alyea assumes the payment of the said bond, excepting six months interest thereon which Johnson is to pay; and that Al-yea exonerates Johnson from the payment of the said bond j and that if Alyea shall indemnify and save harmless the said Johnson, in manner aforesaid, this bond shall be void.

I presume that Johnson has derived from this bond of indemnity an argument in favor of his course in reference to the assignment procured by him of the bond and mortgage. But it cannot help him or the complainants in this suit. If he supposed he had any equity growing out of this part of the case, to have the mortgage considered a security in his favor for the sum he paid, lie should have presented it for the consideration of the court by a bill, which would have enabled the court to judge of it, and to decide whether such relief could be given to him. If such a bill could be entertained at all, it is obvious that the equip; involved in it might be overcome by circumstances which might be shown by Alyea in such a suit. To allow Johnson to succeed in the course he has taken would be to allow him to be tiie judge in his own cause, and to deprive Alyea of all opportunity to resist or overcome the supposed equity on which Johnson has acted.

Tfa® bill must be dismissed.

Order accordingly,


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    REUBEN ROCKWELL AND AZARIAH LEE v. JAMES S. LAWRENCE ET AL.
    1. The court will not make a decree for the specific performance of what it can merely infer with uncertainty was the agreement in the case.
    2. It is within the jurisdiction of the court, on denying specific performance of an agreement to sell lands, in a suit by the person contracting to buy, and who thereupon went into possession, to order compensation to be made by the party contracting to sell, for what the party contracting to buy had done »nd paid towards fulfilling the contract.
    Ia this case, on the filing of the bill, which is a bill for the specific performance of an agreement to sell a tract of timber land of which the complainants had gone into possession under the agreement to buy it, an injunction had been granted to restrain the prosecution of an ejectment brought by a grantee of the defendants who entered into the agreement to sell, to recover possession of the land. The injunction was dissolved in June, 1845, and these complainants have since béen ejected. See ante, Yol. I., page 20. An abstract of the bill and' answer is there given.
    The cause was now brought to a hearing on the testimony.

      D. jB. Hyatt and G. D. Watt, for complainants.
    They cited 2 Story’s Eq., § 794, &e.; 9 Cranch 493-4; 1 P. Wms. 570.

      Peter Vredenburgh and W. L. Dayton, for the defendants.
    They cited 2 Story’s Eq., §§ 762, 764.
   The Chancellor.

From a careful examination of the pleadings and proofs, I am of opinion that the complainants commenced and continued their cutting and coaling, and put up the cabins which they erected on the tract, under an agreement for the purchase of it, at a stipulated price, to be paid by appropriating a certain portion of the proceeds of the sale of coal, agreed upon between the parties, for that purpose. And I think that such portion was to be paid on the receipt by the complainants of the proceeds of the coal sold by them, deducting the freight the first year, and after that without deducting the freight. The deed was to be delivered when the whole purchase money was paid. Beyond this there is much uncertainty whether or not there were stipulations as to how much the payments should amount to within defined periods.

That the stipulated portions of the proceeds of the sale of coal were not paid, or not paid as soon as received, might not be an insuperable objection to decreeing performance. But from the peculiar nature of the agreemeut, and the consideration that if the complainants should be put into possession of the property for the purpose of enabling them to go on and fulfill the contract, it might subject the defendants to the loss of the timber on their property, or a considerable portion of it, by the failure of the complainants to apply the stipulated portion of the proceeds, I think it would not be an exercise of sound discretion for the court to make a decree for the specific performance of what it might conclude, but with no certainty, was the agreement in this case.

On the other hand, I am of opinion that in this case there should be a reference to a master to state an account between the parties, under the proper directions, for the purpose of ascertaining whether any, and how much compensation should be made to the complainants, in view of what they had done and paid when they were stopped in their operations. I have examined the authorities on this question of compensation, and have no doubt that, in a case like this, it is within the jurisdiction of the court, and its duty to see that what is just between the parties, under the circumstances, be done.

Order accordingly.


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    CATHARINE VANDERHOOF v. JOHN CLAYTON AND ELIAS C. CLAYTON.
    1. C. H. received a certificate for a pension for five years, commencing from March 4th, 1836, at the rate of $310 a year. E. C. C.' acted for her in procuring the pension; but, for reasons stated, the power of attorney to draw the pension was given to' J. O., and J. 0. about the 6th March, 1839, received, for the pension money then due, $931.98. C. H. had lived a number of years with J. C., in his family. On the 8th March, 1839, O. H. signed a receipt, by which she acknowledged to have received from E. 0. C. $931.98, in full of her pension up to March 4th, 1839, obtained by him for her, excepting $430, which she had agreed to give him for his services in obtaining the pension for her and paying the expenses. 0. H. died February 18th, 1841, having continued to live with J. C. until her death, leaving a will, dated February 10th, 1841, by which she gave to her daughter, 0. V., “ all her property and possession, whether real or personal, and also the amount of her pension which might be due at her death,” and appointed E. C. C. executor of her will. Held first, under the circumstances, that the $931.98, received in March, 1839, could not be considered as belonging to C. H. at the date of the will. Second, that E. 0. C. was entitled to retain the $430, and that it was not a case within the act of congress in reference to agreements before pensions are obtained.
    2. Matter set up in avoidance must be proved.
    In 1839, Catharine Hartshorne received a certificate for a pension, for five years, commencing March-4th, 1836, at the rate of $310 a year. Elias C. Clayton acted for her in procuring the pension; but for reasons which appear in the case, the power of attorney to draw the pension was given to John Clayton; who, about March 6th, 1839, received $931.98, the amount of the pension then due.
    On the 8th March, 1839, Catharine Hartshorne signed a receipt, witnessed by Joseph R. Magee, by which she acknowledged to have received from Elias C. Clayton $931.98 in full of her pension up to March 4th, 1839, obtained by him for her, excepting $430, which she had agreed to give him for his services in obtaining the pension for her and paying the expenses.
    Catharine Hartshorne died February 18th, 1841, leaving a will, dated February 10th, 1841, by which she gave to her daughter, Catharine Vanderhoof, “all her property and possessions, whether real or personal, and also the amount of her pension which might be due at her death ; ” and constituted Elias C. Clayton executor of the will, “ to take care of all her property, and to receive all the pension money, and, after paying her funeral expenses, to pay the balance to her said daughter, Catharine Vanderhoof,”
    The bill is filed by Catharine Vanderhoof against the said John Clayton and Elias Clayton.
    The bill states that the complainant has requested the said executor, Elias C. Clayton, who is a son of the said John Clayton, to bring the said John to an account for the moneys received by Mm for the said Catharine Hartshorne, and has offered to indemnify the said executor against all costs, but that the said ex-eentor refuses to do so.
    It states that John Clayton has paid over to the said Elias C. Clayton one-half of the pension money so received by him, under pretence of paying him for his services in obtaining the said pension, and that the defendants pretend that the said John is entitled to the other half of the said pension money for the board of the said Catharine j whereas, the complainant charges that the said Catharine was not indebted to the said John, for board or anything else, she having paid her board to him by permitting him to receive an annuity due her of some $50 a year, and by her services in the family of the said John j and the bill charges that the said Elias C. Clayton did not obtain the said pension, nor in any way assist in obtaining it, but that it was obtained by “ another person,” and that the only service performed by the said Elias was to employ an agent or attorney to prepare the evidence and the papers for the said Catharine Hartshorne.
    The bill prays that the defendants, the said John Clayton and Elias C. Clayton, may be decreed to account for the said pension money.
    The defendants put in their joint and several answer, in which the defendant John Clayton admits that the said Catharine Hartshorne constituted, him her attorney to receive, for her, her pension, at the several times when it became due, excepting the first amount that was drawn after she received her' certificate, and that he received her pension up to September 4th, 1840, which amounted to $465.99, and alleges that when he drew it, he offered it to the said Catharine, and that she requested him to keep it, to pay him for her board, which he did, and considers himself in equity and good conscience entitled to dp.
    He says that the said Catharine lived with him 18 years; that she was his sister-in-law; that when he took her to live in his family she was destitute and without home; that he clothed her during the whole time she lived with him; that she was aged and infirm, being at her death, 90 years old ; that she required, particularly during the latter part of the time, considerable care and attention, and that, on a strict account, she would have been largely indebted to him at her death. He admits he received an annuity of $40 a year due her, during thirteen years, on account of her board, but says that the same and the part of the pension he received are not sufficient to satisfy him for the board and clothing furnished the said Catharine, and the care and attention bestowed upon her.
    The defendant Elias C. Clayton admits that he was requested to permit his name to be used to bring the said John Clayton to an account, but says that he then believed and still believes, that the amount of the pension money which the said John had drawn for the said Catharine, she had paid him for her board and clothing furnished her by the said John, and that there is nothing due from the said John to the estate of the said Catharine Hartshorne, and he says he has paid over to the complainant all the money coming to her from the estate of the said Catharine Hartshorne which has come to his hands, and that he is ready and willing to make a settlement of his accounts as the court shall direct.
    The defendants admit the will, and say that by the expression in it “ the amount of my pension which may be due at my death,” the testatrix meant the amount that might accrue between the last semi-annual payment and the time of her death, and not the whole pension she had received from the time she obtained her pension to the time of her death.
    The defendants say that at the time the certificate of pension was received, the defendant Elias was a justice of the peace; that he was, in fact, the attorney of the said Catharine at that time, to draw the pension; but that the affidavits of the said Catharine Hartshorne to the power of attorney were taken before him as justice of the peace, and therefore the name of John Clayton was inserted in the power of attorney; and that the said John drew the pension money and handed it to the said Elias.
    The defendant, John Clayton, says that he has not paid over any of the said pension money so by him received, except as aforesaid, to the said Elias B. Clayton.
    Testimony was taken.

      Vredenburgh, for the complainant.

      D. B. Ryall and W. L. Dayton, for the defendants.
   The Chancellor.

The first question is, whether, under the will and so much of the testimony as may be considered in connection with it, any more of the pension than that which accrued from September 4th, 1840, to the death of the testatrix, on the 18th of February, 1841, belongs to the estate of the testatrix.

The will gives and bequeaths to the complainant “ all my property and possession, whether real or personal, including my wearing apparel, and also the amount of my pension which may be due at my death,” and appoints Elias C. Clayton her executor to take charge of all my property, and to receive all my pension money, and after paying my funeral expenses, to pay the balance to my daughter, Catharine Vauderhoof.”

First, under this clause and the proof in the case, can the $930 received in the spring of 1839, as the pension which had accrued from the period named in the certificate for its commencement, be considered as belonging to her estate, and as passing by the will?

A receipt signed by Catharine Hartshorne, by her mark, witnessed by Joseph R. Magee, dated March 8th, 1839, by which the said Catharine acknowledges to have received from Elias C. Clayton $931.98, in full of her pension up to March 4th, 1839, obtained by him for her, excepting $430 which she had agreed to give him for his services in obtaining her pension for her and paying her expenses, is exhibited on the part of the defendants.

Magee, the subscribing witness to this receipt, testifies that he was a clerk in the store of Elias C. Clayton, kept a short distance from John Clayton’s residence. That Elias C. Clayton wrote the receipt at the store, with the name Catharine Hartshorne thereto, and gave it to the witness and told him to take it to Mrs. Hartshorne and get it signed, and to witness the receipt, saying that he had been up to Col. Clayton’s, (the defendant, John Clayton’s,) and settled with Mrs. Hartshorne. That he, the witness, took the receipt to Mrs. Hartshorne, and read it to her; that' she said it was all right, or she expected it was right, witness don’t remember which, and signed her mark to it, and he witnessed it. His impression is, that Col. John Clayton was by when he took the receipt to Mrs. Hartshorne.

On cross-examination, he says that when he went to her with the receipt, he did not take any money to her, and that he did not see any money paid to her.

On the 10th February, 1841, nearly two years after this receipt, Catharine Hartshorne made her will, containing the clause above stated. I am of opinion that the will confirms this receipt, and excludes the idea that the testatrix, at the making of the will, contemplated that anything was due to her from any person for pension money accrued due at the date of that receipt. We are not at liberty to suppose that she did not remember the giving of that receipt. She must be supposed to have known, when she signed the receipt, and when she made her will, whether she actually received the money which, from the terms of the receipt, it would appear that she had received. It may be that when she signed the receipt, John Clayton had received from her, or from Elias, the amount named in it, except the $430, which she allowed Elias to retain. But if it be so, the fact of her giving the receipt, and of her taking nothing from John Clayton to show any indebtedness from John Clayton to her, taken in connection with the terms of the will, made nearly two years after, would be sufficient to show that she had given the balance to John Clayton, or paid it to him. And if she was willing to do so, to requite a benefactor, or make what she thought a proper compensation for her board, &c., no just complaint can be made against it.

I think these remarks are applicable also to the $430 which she allowed Elias C. Clayton to retain. He paid $125 of this $430 to the attorney he employed to prepare the papers, &o., for obtaining the pension for her. The testatrix made him executor of her will. I am disposed to think that this fact, and the peculiar language of the will, connected with the fact that she had allowed him, after the pension was received, to retain $430 of it for expenses and his services in obtaining it, should be considered equivalent to a gift of it by the will. ■

The case does not seem to me to stand on the question, whether, under the act of congress, the court would give effect to any agreement or understanding, before the pension was obtained, that the person obtaining it should be allowed a portion of it for his services. She would certainly be at liberty to give Elias, by will made two years after the pension was received, any portion of the pension money she had received or that was due her, though any agreement before it was obtained to pay him a portion of it when obtained might be void.

John Clayton admits that he received for Catharine Harfcshorao the three last semi-annual payments of her pension which became due in her lifetime, amounting to $465. They became due as follows; September 4th, 1839, $155; March 4th, 1840, $155; September 4th, 1840, $155. He alleges in his answer, that when he drew her pension he offered it to her, and she requested him to keep it, to pay him for her board, which he says he has done.

His saying she requested him to keep it, &c., is matter set up in avoidance, and must be proved. The testimony on this part of the case is that of Sarah Ann Mount.

She says that in the fall of 1839, John Clayton drew her pension, (the semi-annual payment;) that on the next day he offered it to Mrs. Hartshorne, and that she said to him, you know I have been a great deal of trouble to you, and if I live, I do not know how much trouble I may be, and that if it had not been for the pension she could not have made him any satisfaction, and that he might take it and keep it as long as she lived, and when she was dead and gone, he might do as he pleased with it. The witness said that Mrs. Hartshorne wished him to keep it for the troüble she had been to him and the trouble she would be.

On cross-examination the witness said that when Col. Clayton offered Mrs. Hartshorne the money, she said in conversation, that he was more capable of taking care of the money than she was, and to keep it.

As to the two other semi-annual installments of the pension received by John Clayton, there is no evidence either of his offering them to Catharine Hartshorne or of her requesting him to keep them.

On this part of the case, I am of opinion that John Clayton’s offering her the said installment received by him in the fall of 1839 is sufficient evidence that he did not then consider her in his debt. How it was that he was willing to offer her this money does not, with certainty, appear; but I cannot resist the impression made on my mind by the pleadings, proofs and circumstances, that he got the benefit of the $930 first drawn, excepting thereout the money which Catharine Hartshorne allowed Elias 0. Clayton to retain. If he had not, it can hardly be imagined, in view of the defence set up in the answer, that he would have offered to pay her this $155. And I do not think that the testimony of Mrs. Mount enables me to say that the answer of Catharine Hartshorne to Col. Clayton amounted-to a gift of the $155.

This part of the case, therefore, turns on the question, whether Catharine Hartshorne’s giving, by her will, to her daughter the amount of her pension money which might be due at her death, and directing her executor to take charge of all the property and receive all her pension money, and after paying her funeral expenses, to pay the balance to her daughter, amounts to a gift to Col. Clayton of* the $465 received by him in the last three installments before her death. I do not think it should be so considered. It does not appear that she was ever informed that the two last installments, or either of them, had been drawn by Col. Clayton, and if we ought to presume that a woman of her great age, and in the infirm state in which she appears to have been at that time, would be aware that the time for their payment was passed, and could divest ourselves entirely of doubt whether the peculiar language of the will in this respect was really her language ; yet it is easy to perceive that money in Col. Clayton’s hands, received by him as her pension money, might be considered by her as pension money due her. She had given no receipt for any of it; and as to the last two installments, it does not appear that either of them had ever been offered to her.

I have found this case somewhat difficult to decide; but, on a careful examination of it, I,am strongly impressed that John Clayton should be decreed to account for the $465 received by him in the three last installments of the pension and that he should be allowed, in that account, reasonable compensation for the maintenance of Catharine Hartshorne from the 8th March, 1839, and to any clothing he may have furnished her after that time.

He cannot be allowed, as against this $485, any sum for maintenance, &c., prior to that time. Nearly two and a half years elapsed from the death of the testatrix to the filing of the bill in this case, and John Clayton presented no account against the estate of the testatrix to the executor of her will. If he did not receive the residue of the $931, after the allowance made to Elias out of it, his presenting no account to the executor is, at least, very persuasive to show that he did not consider her estate indebted to him. If he did receive it, the facts show that he considered himself paid. His offering her the next installment must be taken as proof of one or the other.

As to the account of the executor for so much of the assets of the estate as has come to his hands, he proffers himself, in his answer, ready to render such account; and I see no reason why that account should not be settled in this cause.

Order accordingly.


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    JONATHAN D. MILLER v. CORNELIUS V. TRAPHAGAN.
    1. A notice of a motion to dissolve an injunction “ for irregularity in the proceedings,” is insufficient.
    2. The notice should state the irregularity.
    Motion to dissolve an injunction. The notice given is that an application would be made to the Chancellor, on the 10th day of July, 1847, at 10 A. M., at his chambers at Newark, to dissolve the injunction granted in the cause, “ for irregularity in the proceedings.”

      Walter Rutherford, for the motion.

      Oliver S. Hoisted, Jr., and A. Whitehead objected that the notice was insufficient.
   The Chancellor.

A notice to dissolve an injunction “ for irregularity in the proceedings,” is insufficient.

The irregularity complained of should be stated in the notice, 2 Green’s Ch. 9.