author: Pitney, V. C.

text:
    Frank Kastell v. Frank T. Hillman and Meta Hillman.
    A father promised his son that if the latter would live with and work for him during the father’s lifetime, he would devise to him certain lands, and about eighteen months before he died made his will accordingly. Afterwards, and nine days before he died, being very feeble in mind and body, and laboring under a delusion as to his son’s conduct, he made a voluntary conveyance of a part of the lands to two of his grandchildren, who were in personal attendance upon him. The son fully performed the conditions of his father’s promise. — Held, the conveyance must be set aside as against the son.
    On final hearing on pleadings and proofs.

      Mr. Thomas M. Moore, for the complainant.

      Mr. John W. Griggs, for the defendants.
   Pitney, V. C.

Frank Kastell, the complainant, files this bill against his nephew, Frank T. Hillman, and his niece,. Meta Hillman, asking the court to set aside a deed of conveyance made by Philip Kastell, the father of the complainant and the grandfather of the two defendants, to the two defendants, dated the 22d of March, 1893. It covers about two acres of land, situate within the corporate limits of the city of Passaic, and on it are the dwelling and outbuildings constituting the homestead of the late Philip Kastell. He died on the 1st of April, 1893, nine days after the execution of the deed. By his will, executed outlie 2d of October, 1891, and admitted to probate after bill filed, ,he had devised this homestead, with other lands, to his son .Frank, the complainant herein.

The complainant rests his right to relief on two grounds— first, that the premises in question were so devised to him by his father, in pursuance of a contract made between the two many years before, by the terms of which his father agreed to so devise the premises to him in consideration of his living with him, attending to his business and taking care of him during his lifetime, and he alleges that he performed the conditions on his part. The second ground is that at the time of the execution of the deed his father had attained the advanced age of about eighty-two years, was very feeble in health, both in mind and body; that his mind was so far enfeebled as to render him incompetent to transact business of that character, and that the • deed was procured from him by undue influence brought to bear upon him in his enfeebled condition by the two defendants, his •grandchildren, who were members of his family at that time.

I. With regard to the first point, it seems to me .that it is •clearly sustained by the proofs. The devise itself is in these •words:

Third. I give, devise and bequeath unto my son, Frank Kastell, my farm on which I now reside, situate in said city of Passaic, county and state aforesaid, containing about thirty (30) acres, with all the buildings, granaries, barns, stables and outhouses thereon, together with all the household furniture, farm- ' ing utensils, tools and other things pertaining to said farm; also, the horses, • cattle, poultry and other life [sic] stock, carriages, wagons, harness and everything belonging thereto; also, about ten (10) acres of salt meadow land, situate •and lying in the county of Bergen, in this state.
“Fourth. This bequest to my son Frank, I make in consideration of and for dais services and assistance rendered to me and my estate by him up to the time of my decease, and is subject to the following charge: My beloved wife, Katherine, shall have as good and comfortable a home on this my said farm •as she now has during the remainder of her natural life, and at her death said farm, household furniture &c., &c., &c. and salt meadow lands shall be the property of my son Frank in fee simple.”

This clause is of itself evidence of the contract. In addition to that the parol proof is abundant.

Complainant himself swears that when he was a young man (he was forty-two years of age when his father died) he wished to go away from home and strike out in the world for himself— learn a trade or do whatever he might be able to do — and that his father insisted upon his staying there, living with him and helping him on the farm, and promised him if lie would do so he would leave him, by will, the lands in question, and that he ■did so stay, relying upon his father’s promise. The same thing is sworn to, in effect, by his sister, Mrs. Anna Fells; also, by Mr. Totten and Mrs. Dankoff, neighbors. Then the division which the old gentleman had made, by will, of his property was well understood by each member of 1ns family. He was a German, who did not attempt to speak English, and understood ■it very imperfectly.

The lands mentioned in the will were as follows: A little short of ten acres in one body, bisected by Bloomfield avenue, leaving three and a half acres on one side (on which was his dwelling) and a little short of six on the other, the whole located about a mile and a quarter west of the city of Passaic, and beyond th'e line of the Delaware, Lackawanna and Western Railroad Company. It was within the corporate limits of Passaic, but the neighborhood was not built up or improved. In addition to this ten-acre tract was a tract of thirteen and seven-tenths acres, lying disconnected with and a short distance from it, and not bounding on any highway. It was used for farm land, and as waste sprouts or swamp. Besides this were the ten acres of salt meadow of trifling value. The old gentleman seemed to entertain the notion that the ownership of this land — about thirty-three acres in all — made him a landed proprietor, and as the complainant was his only son, he desired him to reside on it after bis death and perpetuate it in. the Kastell name. Besides this property he was the owner of a block about one hundred feet square, situate on a corner, in the city of Passaic proper, upon which were five houses, which were estimated at the value of $25,000, and rented for $200 a month. This last was subject to two mortgages of $1,000 each. He had also some building lots. Besides the complainant, he had two children — daughters— one a Mrs. Anna Fells, who lived with her husband in Lowell, Massachusetts, and the other, who died in her father’s lifetime, had married a Mr. Hillman, the father of the defendants, and had borne nine children, of whom the defendants are two. The-date of her death, I think, is not given. The block of buildings just mentioned were by the will divided between Mrs. Fells and the Hillman children. Sometime previous to the making of the will above mentioned, but just how long does not appear, the testator had made a will substantially the same as this, except he had excluded from the benefits thereof three of the Hillman children. The contents of this will were known to all his children, and they, particularly Mrs. Fells, feeling that his prejudice against the three Hillman grandchildren was unjust, induced him to change it, and the will of October 2d, 1891, was the result of a family counsel, and was satisfactory to all parties. In point of fact, the value of the two shares given to Mrs. Fells and the Hillman children was greater than that given to-the complainant by the will.

The old gentleman had always expressed a desire that his son Frank should have an heir, and in the year 1889, he married a young lady in the neighborhood, whom at first he took to live with his father and mother, but fearing a difference between the mother-in-law and the daughter-in-law, he sent her back temporarily to her father’s home, and then proposed to his father to build himself a house on a part of the homestead which had been devised to him, and his father agreed thereto, and in 1890 conveyed him a part of the homestead on the north side of Bloomfield avenue, upon which he erected a house in the summer of that year, and lived there with his wife and attended to his father’s business and affairs in the same manner as he had previously done, up to the time of his death. He liad also accepted ■other employment, with his father’s consent. He was, among ■other things, street superintendent of the city of Passaic for four years while living with his father, and swears, and he is uncontradicted therein, that he gave a portion of his salary, or whatever other money he earned outside, to his father. At any rate his performance of the contract must, under the evidence and the language of the will, be held to be satisfactory to the father up to the date of the will. The attention paid by the son to the father from that time on until he died, was precisely the same as it had been previously, and there is no proof that he ever made the least complaint to the complainant or demand upon him to perform anything that he did not perform ; but the tendency of the proofs is to the contrary.

I must then hold, as a matter of fact, that the complainant did perform his part of the contract fully, and that the deceased was under legal obligation to perform his part and to leave undisturbed the devise which he made to him on the 2d of October, 1891.

The wife of Philip Kastell died on the 14th of October, 1893, twelve days after the date of the will, and just before her death, the defendant Meta Hillman, who had been at service in the city of New York, earning wages at $14 a month, came to live with her grandfather and bargained with him to continue to work for him at that price — $14 a month. The defendant Frank T. Hillman was a bricklayer by trade, and at about the same time took board with his grandfather at $4 a week, and worked ■at his trade in the city of Passaic. In the winter time, when very little masonwork was being done, he did chores about the house, and looked after his grandfather, for his board. That continued up to the time the old gentleman died, with the exception that during the winter of 1892-93 Frank Hillman collected the old gentleman’s rents in the city of Passaic. That is, he received them monthly from one of the tenants to whom the others paid.

There is little room to contend that the deed complained of has any valuable consideration. The consideration named is “one dollar and other good and valuable consideration,” and then, at the end of the description, is this clause:

Part of the consideration of this conveyance is for past services rendered' by the parties of the second part, and for future services to be rendered by them to the party of the first part during the remainder of his life, in taking care-of him, and also in consideration of natural love and affection which he bears toward them.”

There is no doubt about their working for and living with him under a contract, and that he paid his granddaughter for her services in full, either up to Christmas, 1892, or Christmas,. 1891, and that he paid her on account as often as she demanded pay, nor is there the least dispute as to what the contract was-with the grandson.

Their story is that this deed was suggested to them on the-14th of March, that it was executed on the 22d of March, and he died on the 1st of April. Further, that the old gentleman and the defendants knew at the time that he was very near his-end and not expected to live. Hence the deed must be held to-be without consideration as against the complainant; and, further, the fact that the complainant was, by a contract with his-father and by a family arrangement, to have this property by will from his father, was well known, as before remarked, to all of the members of the family, including the defendants.

The law governing this class of contracts has been frequently considered by this court and is well settled in this state. The latest cases are Young v. Young, 18 Stew. Eq. 27, where the-previous cases are collected (and see the same case on final hearing, 6 Dick. Ch. Rep. 491), and Drake v. Lanning, 4 Dick. Ch. Rep. 452.

The contract in this case is sufficiently clear in all its parts. There is no room for dispute as to the land agreed to be devised. The services to be rendered, as in all such cases, are not clearly defined, but they were performed to the satisfaction of the other-party through many years and up to the date of his will. Such acceptable and accepted performance removes all difficulty oni the score of indefiniteness.

The complainant's claim is a meritorious one. The case shows that he spent the best part of his life in working for his father and for his father’s interest upon this little farm, and with so little profit to himself that when he came to build the house, in 1890, he was obliged to borrow the whole cost of it on mortgage. The land devised to him, including the lot conveyed to him in 1890, and the house and lot here in dispute, do not exceed in value $8,000 or $9,000, while the block in Passaic city, divided between Mrs. Fells and the Hillman children, is worth $25,000, leaving, after deducting the mortgages on it, at least $11,000 for each. The bargain relied upon was a hard one for the complainant, and its enforcement will give him but scanty justice.

This result is sufficient for the decision of the cause, but as I have fully considered the second ground of relief, and as it throws light upon the fir.?t, I will state my conclusions upon it.

II. The evidence as to the mental condition of the deceased, at the date of the execution of the deed in question, is somewhat conflicting. That he was then very weak in body and mind, as the result of his advanced age and general debility, is thoroughly proved and is indisputable. This weakness had been coming on with steady increase for several mouths, and all who saw him perceived that his end was near. He was himself entirely conscious of this. A physician was called in for the first time oit March 22d, and found his vitality so low that he immediately resorted to electricity. He was unable to speak German, and' communicated with his patient through one of the defendants as-interpreter. He made no examination of his mental condition..

The witnesses mainly relied upon by the complainant to establish incapacity are his sister, Mrs. Fells, and her husband, who reside in Lowell, Massachusetts, and a Mr. Rornecastle, who lived in Passaic, and was tenant of one of the stores, and attended to receiving the monthly payments of rent from the-various other tenants of the block and paying it over either to-his landlord in person or to the complainant, or, during the-last few months, to Frank Hillman. All three speak German.. Mr. and Mrs. Fells visited her father on the 15th of March and! remained until the 18th, Mrs. Fells being with him constantly during that time, and Mr. Fells during the morning and evening hours. They came, upon advice from the Hillmans that he was failing, for the purpose of seeing him and also to assist the Hillmans in a matter of business.

The devise to Mrs. Fells was of-two of the five houses and lots in Passaic, one of which was a corner and more valuable on that account. This was subject to a mortgage of $1,000 held by one Somers. The devise to the Hillmans was of the other three houses, which were also subject to a morfgage of $1,000 also held by Somers. The will of October 2d, 1891, was made with the full knowledge of the children and grandchildren, and of their father, Henry Hillman. It was supposed by the children and by Henry Hillman that the encumbrances held by Somers covered only the three houses devised to the Hillmans, and it was understood to be the intention of the old gentleman to sell certain vacant lots which he owned and did not dispose of by his will, and from the proceeds pay off this mortgage. This was never done, and the business object Mr. Fells had in view, in making this visit, was to aid the elder Hillmans in inducing their father-in-law to procure this mortgage to be ■shifted from the houses devised to the Hillmans and placed upon Frank’s share. When he arrived and saw the old gentleman and talked with him, he concluded that he was entirely unfit to do any business and so informed the elder Hillman and the defendant Frank. Mr. Somers came to the house with his mortgages at the request of the Hillmans, but did not see old Mr. Kastell, and the subject of the change was not mentioned to him. Mr. Fells swears that the old gentleman was so weak that he was unable to keep his mind upon one thought for any length of time, that his mind wandered — to use his own language, “1 consider that he was gone by from telling right from wrong.” He tried to converse with him and to road aloud to him some letters he had received from friends in Germany, tested his mental condition in various ways, with, the result above stated. The evidence of Mrs. Fells, who was with her father continuously, is to the same effect. These witnesses are entirely disinterested. In fact, their feelings are favorable to the defendants rather than to complainant.

One matter testified to by Mr. Fells I will mention here. He says that the matter of a legacy the old gentleman had recently received from Germany, was mentioned, and he, Mr. Kastell, said that it was $1,450, and that his son Frank, the •complainant, had kept $1,000 out of it, and had given him only $450. This idea was erroneous. The legacy was for $450, and Frank kept nothing out of it.

Mr. Bornecastle had several interviews with Mr. Kastell •during the three months preceding his death. He was an old and familiar friend, and talked and chatted as such. The effect •of his evidence is the same as that of Mr. and Mrs. Fells.

A Mrs. Spreitzer, wdio saw him about the same time, testifies to the same effect, and says he was childish.

As an evidence of failing mental faculties, including judgment about matters of business, complainant relies upon another circumstance. In the summer or fall of 1892, the old gentleman erected a stone foundation for a building on the land immediately in front of his house and across the road. He did this without any settled plan as to what sort of a building should be erected upon it, and he took no measures looking to the erection of any. He told some one that it was for a saloon. The ground was low and wet, and entirely unfit for the purpose, and there was no demand in the neighborhood for any such building. I think the complainant’s contention is right in this respect, and that the building of this foundation did indicate a failure of mental power in general and of judgment in particular.

On the other hand, Mr. Weis, the lawyer who prepared and attended to the execution of the deed in question, testified that he took the instructions for it from Mr. Kastell’s own lips on the day before it was executed ; that he read and explained it to him carefully before its execution, and that Mr. Kastell was fully conscious of what he did and seemed to understand it. And I think it must be taken as an established fact that Mr. Kastell was conscious of what he did; that he knew that he was conveying this property to his two grandchildren \ that he desired so to do, and was satisfied with it. And if such mere wish to-do the very thing, and the consciousness that he was doing it,, make up the requisite elements of mental capacity, then I think his capacity is established.

But this is not the whole case. Mr. Kastell entertained and expressed a reason for making this conveyance, and I think its validity must depend in a measure upon the question whether that reason was such a one as could be entertained by a sound and healthy mind, or whether it was in itself unreasonable and the result of a weak, childish, morbid and diseased mind.

I have said the ten-acre tract, which formed part of his farm,, was bisected by Bloomfield avenue; the cut was somewhat diagonal, so that the pieces were irregular in shape. The part north of Bloomfield avenue contains three and a half acres, and upon it are situate the homestead and the new house erected by complainant in 1890. It was also bisected by a paper street called Union avenue, an extension of one in the city. This street cut it crosswise of Bloomfield avenue, but not at right angles with its lines or at right angles with those of the lot. It was shown upon maps of the city, but had never been run or staked out on the ground where it crossed the ten-acre lot, and neither Frank, the complainant, nor his father, knew just where' it crossed. In point of fact, when correctly located, it passed just east of the old gentleman’s dwelling, and between it and the barn, covering a part of the latter, and left the lot to its east with a frontage of one hundred and ninety feet, and a width in-the rear of two hundred and fifty-one feet, upon which stood nearly the whole of the barn. When, in the spring of 1890,. Frank wished to build a dwelling, and to borrow money on mortgage for that purpose, it became necessary for him to have the present title to the lot he built upon, and he asked his father for a deed for the land east of Union avenue, and to this his-father agreed, neither one knowing or caring just where the avenue ran, and neither supposing that the proposed lot would include the barn. I say “neither caring,” for the will of 1891 was undoubtedly, in substance, a copy of one in existence in 1890, except as to the number of the Hillmans who partook in their mother’s share. Such is, in effect, the evidence of Mrs. Fells, who procured the change to be made and actually brought the lawyer to the house for that purpose. The language of the-will of 1891 indicates the same thing, for it does not notice that a part of the homestead had been sold out, but treats it as still wholly the property of the testator; and at the time it was made, the wife of the testator was on her deathbed, not expected to live, and did actually die twelve days later, on October 14th,, and yet provision is made for her in this will as if she might live a long time.

This deed of May 8th, 1890, from Mr. Kastell to complainant, was prepared by Mr. George P. Rust, a lawyer of Passaic,, who spoke German and knew the parties. The evidence satisfies-me that he saw the father twice in respect to it — first, to get his instructions for it, and second, to witness his execution of it; and further, that the old gentleman was fully aware that he was conveying to Frank all the plot which he owned on the east of Union avenue, wherever that might be, and north of Bloomfield avenue, and that he did this willingly, and that no deception was therein practiced upon him either by Frank, the complainant, or by Mr. Rust. No measurements on the ground were' made for the description inserted in the deed. The distances mentioned therein, I am satisfied, were obtained by Mr. Rust by putting a plotter’s scale on the city ward map. This conclusion is strengthened by the fact that those distances vary somewhat from those resulting from an actual survey. After this conveyance, no change took place in the occupation and use of the land except that Frank’s house was placed upon it very near the east line of the whole tract, and some distance from the barn. No fence was run or mark put up to show the lines.

Some time afterwards, late in August or early in September of either 1891 or 1892, and, for reasons presently stated, I conclude it was in 1891, the old gentleman was digging potatoes-near the barn, and Frank objected, on the ground, as he says,, that they were too green and immature and would rot when placed in the cellar. The father afterwards said that Frank declared that the potatoes were on his (Frank’s) land. This. Frank denies and says that nothing of the kind was said, and that there was no feeling whatever manifested towards him personally at any time afterwards by his father on this or any other account. And I stop to say that there is not the least evidence in the case tending to contradict his assertion in that respect. Be that as it may, either the potato incident or something else induced the father to have the calls of complainant’s deed measured out on the land, with the result that it was found to include within its calls most, if not all, of the barn, and to be sixty-one feet wider in the 'rear than in front. This measurement was •done with the aid of the Hillmans and entirely without notice to, and in the absence of, the complainant. The result seemed to displease the old gentleman especially, and, I think, only in respect that the increased width in the rear took in the barn, and he mentioned it to the elder Hillman and to Mr. and Mrs. Fells, •saying that Frank had cheated him in getting that land. Mr. and Mrs. Fells, as well as Hillman, told him that it made no sort of difference, as by the will it all went to Frank, and they swear that he was satisfied with that, as, indeed, he ought to have been. It is manifest that they did not think that complainant had been guilty of any fraud or deception in the matter, for they never mentioned it to him.

That this discovery was made by the old gentleman previous to the making of the will of October 2d, 1891, appears from the evidence of Meta and Kittie Hillman. Meta swears that she •came from New York to live with her grandfather, October 3d, 1891, the next day after the execution of the will, and about ■eleven days before her grandmother’s death, which was October 14th, 1891, and she is quite positive that her grandfather had discovered where the lines of the complainant’s deed ran before she arrived. This could hardly be unless he heard it before making the will. Her sister Kittie lived with her uncle Frank, the complainant, the summer of the year after the house was built, viz., 1891, and she heard of it while living there, and this would make it in 1891. It is thus rendered quite clear that the old gentleman knew where the lines of the deed ran before and at the time of the execution of the will.

Now, I think the fact that he executed the will with that, knowledge is strong evidence that at that time he was satisfied with the situation as explained to him by Mr. and Mrs. Fells. At any rate, it is certain that he never spoke to Frank about it,, and the fact that he was dissatisfied with it was not known to Frank until,at or about the time of his death.

Frank Hillman, the defendant, swears that his grandfather first mentioned the matter of making this conveyance to him and his sister on the 14th of March, 1893, which was Tuesday (the day before his uncle and his aunt, Mr. and Mrs. Fells, came down from Lowell upon notice sent to them by Frank), and he swears that his grandfather said that he wished to make a deed of the homestead house and lot to him and his sister. Then he says that, on the 19th or 20th, after Mrs. Fells had left on the 18th, his grandfather directed him to go and get a German lawyer to come and draw the deed, and that he went and saw his father, Henry Hillman, in Paterson, and on his suggestion procured Mr. Weis to come and attend to the business. Mr. Weis swears that, in a conversation which he had with Mr. Kastell on the occasion of his first visit, when he took instructions for the d§ed, he endeavored to ascertain the capacity of Mr. Kastell and his reasons for making the proposed conveyance, and that the old gentleman told him that his son Frank had swindled him in the transaction in relation to this property that he had got from him; said Frank asked for a couple of lots to build a house on, and that he got about a couple of acres, and had the deed so drawn that it included a part of the barn. He further stated that Frank had neglected him, had not attended to his wants, and that his grandchildren had done so, and that he wished to make them a compensation.

Henry T. Hillman, the father of the defendants, also had an interview with his father-in-law on the 14th of March, when, as he says, he was specially sent for by the old gentleman, and was told by him that he wished to give a deed for this property to his two children, and at'that time the old gentleman repeated to him what he had previously said to him — that Frank Kastell had cheated him in getting the deed for his lot. And it is ■entirely clear that that idea, and a supposed lack of attention on the part of the complainant to him, was the cause operating on his mind which procured the conveyance to the defendants. In fact, it was put forward by the defendants as the motive for it.

Mr. Henry Hillman had previously, in connection with Mr. Fells, explained to him that it made no difference how much Frank’s deed covered, as-it was all willed to him; but he did not repeat that explanation on the 14th of March, and it is remarkable that, while the old gentleman expressed a desire on that day to make that conveyance, nothing was done about it ■unlil after the expected visit of the Fells, who were sent for to ■oorne to assist to shift the mortgage. When that had failed and the Fells had left, then the project of making the conveyance was revived and the lawyer was sent for.

Now, both of these reasons or motives which produced this conveyance were baseless as a matter of fact. The complainant had not cheated or imposed upon his father in the least in the matter of the conveyance of 1890. He was entirely innocent therein. It is probable that the old gentleman was angered by the manner of his son in the matter of the potatoes, but all that must have been forgiven when the will was made, which was very shortly afterwards. I can attribute its revival in those last ■days in the virulent form which, according to the defendants, it assumed, to no other than one or both of two causes — either his mind was diseased, as well as weak and childish, and its diseased action recalled this once exploded notion, or it was revived by outside influences. Certain it is that the Hillmans — father and children — were quite ready to take advantage of it, if they did not revive it. But whatever its origin, it was a delusion, and it must be treated as such. So with regard to the notion that his son was neglecting him. It is without any reasonable foundation in fact, and must be attributed to. the same source as the ■other and treated in the same manner.

It follows that the two motives relied upon to sustain this conveyance were either the. product of a diseased mind or were imposed upon a weak and childish, mind, and the result is the same in either case.

Whether or not the erroneous notion that complainant had taken $1,000 out of his father’s German legacy, also operated on his mind, does not appear. It is quite certain that it was present in his mind shortly before the deed was executed, and is & strong indication of its morbid condition.

This conveyance may be considered as partly founded upon a substantial valuable consideration, and partly a gift. In the one aspect, it is a business transaction, and requires business capacity, discretion and judgment; in the other, it may be treated as a testamentary disposition. That most favorable for the defendants is testamentary disposition, for it is well settled that a higher degree of mental capacity is necessary to sustain a complicated business transaction than a will.

Let us see if the grantor had capacity at the time to make a will.

In this state, I cannot but think that some of the requisites of a sound and disposing mind and memory laid down by Chief-Justice Kirkpatrick in Den v. Van Cleve, 2 South. 589, have, of late, not been always attended to. Speaking of a sound and disposing mind and memory (at p. 660), he says: By these terms it has not been, understood that a testator must, possess these qualities of the mind, in the highest degree, otherwise very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done, for even this would disable most men, in the de•cline of life; the mind may have been, in some degree, debilitated, the memory may have become, in some degree, enfeebled; and yet there may be enough left, clearly to discern, and discreetly to Judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament; but if they have so far failed, as that these cannot be discerned and Judged of, then he cannot be said to be of sound and disposing mind and memory.”

Here the capacity clearly to discern and discreetly to judge.” is stated as one of the requisites; and the quotation just made was cited with approval by Chief-Justice Ewing and Mr. Justice .Drake in their opinion in Sloane v. Maxwell, 2 Gr. Ch. 569. I stop to say that the criticism made by Chief-Justice Ewing in that opinion upon some former expressions of Chief-Justice Kirkpatrick, referred to his language in Den v. Johnson, 2 South. 455; and Mr. Justice Rossell, in his opinion in Den v. Van Cleve, in which he criticises Chief-Justice Kirkpatrick’s language, refers not to the language just quoted, but to certain, expressions found in his charge in that case, which is not reported ; while Mr. Justice Southard, in Den v. Van Cleve, adheres to the original ruling in Den v. Johnson, and also agrees with Chief-Justice Kirkpatrick.

The same language which I have quoted from Chief-Justice Kirkpatrick was quoted with approval by Lord Chief-Justice Cockburn, in the celebrated case of Banks v. Goodfellow, L. R. 5 Q. B. 549, 567.

This definition of a sound and disposing mind and memory for testamentary purposes seems to me to be unassailable, and I am unable to believe that the learned judges of this state who-have on various occasions since its promulgation expressed themselves in their own language on the point, intended to deviate from or vary it. Children under age are prohibited from making wills because they are presumed to be lacking in the-very elements of capacity mentioned by Chief-Justice Kirkpatrick. In their case the statute law fixes an arbitrary period for the continuance of this incapacity. The unwritten law, for-the same reason, protects the heirs and next of kin of one who-has, by reason of advanced age and disease, or both, reached second childhood, from testamentary dispositions made by him while in that condition.

Now the faculty of discernment and discreet judgment includes-necessarily the capacity to examine, criticise, consider, compare and weigh all those things and all those circumstances which enter into the nature of a fair and just testament,” and which ought to influence the mind of the testator in making his testamentary disposition. Unless he has this capacity for discernment and judgment, his action, however conscious of it he may be, and however it may accord with his present wishes, is the mere indulgence of a childish whim, and does not, in my opinion,, rise to the dignity of a deliberate testamentary disposition made-by a person of sound and disposing mind and memory. I can- • not think that mere consciousness of what he is doing is a sufficient test of testamentary capacity. The merest child may have - that, and yet be far short of having a sound and disposing mind and memory. He may consciously and intentionally, and for-reasons quite satisfactory to himself, give away his property, and ■ yet no one would, for a moment, think of holding him responsible for his acts even if there were no statutory limit to his capacity. And if this be so, why should not the same protection be thrown around the next of kin and heirs of the child who is • such by reason of having attained too many instead of too few years ?

The evidence satisfies me that'Mr. Kastell was not possessed of such a sound and disposing mind and memory at the time he-made this deed, and that it was no more than the indulgence of a childish whim arising out of delusions which had no reasonable foundation in fact.

I will advise a decree accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    West New York Silk Mill Company v. Laubsch and Dixon.
    1. An application to the common-law court by a defendant, asking that? court to set off a judgment recovered against him there, against one he holds in the same court against the plaintiff, is an application to the equitable jurisdiction of that court, in the exercise of which that court acts upon precisely the same principles as this court does on a bill filed here for the same relief.
    2. Semble that a writ of error will lie to the final determination of the application by the common-law court.
    3. Whether a writ of error will lie to such determination or not, it is still binding on the applicant, and, having failed there, he cannot afterward apply, to this court for the same relief.

      Motion for injunction.

      Mr. Charles L. Carriole, for the complainant.

      Mr. Warren Dixon, fro se.

   Pitney, V. C.

This is a motion for an injunction upon bill and answer. The object of the bill is to procure a set-off of a judgment recovered some six years ago, in the Hudson county circuit court, by one Benjamin against the defendant Laubsch (which judgment has been assigned to the complainant), against a judgment recovered, in 1893, by Laubsch against the complainant.

The defendant Dixon, by his answer, sets up two defences— first, that he became the assignee for value of the claim upon which the judgment of Laubsch against the complainant was founded prior to the time that the complainant procured the assignment of the Benjamin judgment against Laubsch; second, he sets up the independent defence of res adjudicata and estoppel, and shows by his answer — and the truth of the allegation in this behalf is admitted by the complainant — that after the recovery of the several judgments, and on or about the 25th of January, 1894, the complainant herein presented its petition to the honorable judge of the Hudson county circuit court, setting up the same facts found in the bill herein, and praying an order of that court for the same set-off which is asked in this suit; that thereupon a rule was made by that court upon the defendant Laubsch to show cause why the prayer of the petition should not be granted, and a stay of execution in the meantime was made. Testimony was taken under that rule, and the matter was then referred to the supreme court for its advisory opinion, where, after consideration, that court decided that the complainant was not entitled to the set-off prayed for, and that the motion to set off should be refused, with costs. Upon the certificate, dated November 14th, 1894, of this advice of the supreme court being brought down to the circuit court, that court, in accordance with it, entered, November 17th, 1894, a rule that the •original rule to show cause “ be and is hereby discharged with costs to be taxed in favor of Laubsch and against the defendant," the complainant herein. The opinion of the supreme court is reported in 30 Atl. Rep. 550, sub nom. Laubsch v. West New York Silk Mill Co.

The bill herein was filed November 15th, 1894.

To this defence on the part of Dixon, complainant replies that the proceedings in the circuit court and the order of that court dismissing its petition do not amount to res adjudícala, for the reason that the granting of the relief in that court is a matter of pure discretion from which no writ of error will lie.

I do not so understand the law. The principle upon which a court of law acts in such cases is stated at length in the opinion in Brown v. Hendrickson, 10 Vr. 239, from which the learned judge who spoke for the supreme court in this case, quotes.

It is true that the word “ discretion ” is there used, but the context shows that it is used in the sense of that judicial discretion which is or should be brought into play in all causes of pure equity, and it means no more than that the judge will weigh and balance the equities, and decide in favor of that party -on whose side he finds the preponderance.

Upon this question of discretion as affecting judicial action, I refer to what I said in the case of Hennessy v. Carmony, 5 Dick. Ch. Rep. 616 (at p. 625).

It is plain that a court of law acts upon precisely the same principles in setting off one judgment against another that a court of equity does, and that an appeal will lie from a court of equity in such cases is too plain for argument. In fact, an .appeal will lie in equity, and a writ of error at law, in all cases where the ultimate rights of the parties are finally determined. And speaking for myself, I take the liberty of saying that I think the use of the word discretion ” in connection with such cases is unhappy and unfortunate, because it is apt to be misleading. It seems to have misled the counsel in this case into advising this suit. The matters of discretion in which an appeal or a writ of error will not lie, are those which do not determine the ultimate rights of the parties. As, for instance, in equity, the granting or non-granting of an issue at law to determine-some question of fact, the choice of a receiver in insolvency, the question whether or not money in the hands of a special guardian appointed by this court shall be transferred to a general guardian appointed by the orphans court, as exemplified by the-case of In re Anderson, 2 C. E. Gr. 536.

I have no doubt that a writ of error will lie to the determination of the circuit court of the county of Hudson, in this case. There was a final determination of the petitioner’s right there-presented and a judgment for costs against it.

The jurisdiction of the court of errors and appeals of this state, by writ of error, is larger than at the common law. This-has been settled law ever since the case of Eames v. Stiles, 2 Vr.. 490, where the learned chief-justice reviews the whole subject.

The complainant relies upon the case of Simpson v. Hart,. decided in the first place by Chancellor Kent, as reported in 1 Johns. Ch. 91, and afterwards in the court of appeals, in 14 Johns.. 63, and it must be confessed that the case is precisely in point in favor of the complainant. There the complainant had applied to the mayor’s court of the city of New York to offset a judgment which had been recovered against him, against one which he held against the plaintiff and another party, and that motion, had been refused in the mayor’s court. A bill was then, as here,. filed by him in the court of chancery, asking the same relief, and Chancellor Kent held that, having applied to the equitable jurisdiction of the mayor’s court, he could not come into chancery. An appeal was taken to the old New York court of errors and appeals. The judges were divided. Two of the judges of the supreme court agreed with Chancellor Kenfy and three took an opposite view, and, with a considerable majority of the senators, reversed his decree.

It is enough to say of that case that, in the first place, I think the reasoning of Chancellor- Kent and the two judges of the-supreme court who agreed with him in the court of errors and appeals, is more satisfactory than that of those who took the-opposite view; and, in the second place, the jurisdiction of the court of errors and appeals of New York, upon writs of error,. was strictly confined to that of the common law, and was not so wide as that of our court of errors and appeals.

But if I am wrong in supposing that a writ of error will lie to the judgment of the circuit court in the ease here in hand, I ■am still of the opinion that the proceedings there are a bar to proceedings here. The complainant deliberately chose its forum, in which it had, at least, the benefit of the judgment of four judges of the supreme court, who dealt with the case on the merits upon equitable principles precisely as this court would have done had it come here in the first place. Having chosen that forum, I think it is as much estopped in case no writ of ■error will lie to the judgment of that court as if it will. I am unable to see on what ground the fact that a writ of error will not lie, if such be the fact, can affect the question of estoppel.

The result is that I conclude that the complainant is not entitled to relief against the defendant Dixon, that the injunction must be refused, and, as the truth of the matters set up in estoppel was admitted at the hearing, that the bill must be dismissed, with costs, as to Dixon. It- prays for other relief against the ■defendant Laubsch, and may be retained as against him.


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    James H. Lindsley, administrator &c., v. Amzi T. Dodd et al.
    1. A trustee who has once actually received the funds of the trust estate ■cannot discharge himself from accounting for the same to the cestui que trust by showing that they were lost h}r his own neglect. In such case, a suit against him by his cestui que trust to recover the estate is not based upon his neglect, but upon his actual receipt of the estate; and the case is not varied if the suit be against the devisee of the delinquent trustee.
    2. In an action by a cestui que trust against the trustee of an express trust to recover the trust estate, laches in bringing of the suit cannot be imputed to the complainant until he is informed of some breach of the trust or culpable negligence on the part of the trustee resulting in a loss, which the latter refuses to make good.

      Final hearing on bill, answer and proofs.

      Mr. James E. Howell, for tiie complainant.

      Mr. Alfred F. Skinner, for the defendant.
   Pitney, V. C.

This action, as originally framed, was brought by the administrator de bonis non cum testamento annexo of Stephen H. Dodd, late of the county of Essex, deceased, against the several heirs-at-law and devisees of the executors named in the will of said Dodd. Its object is to recover the amount of the estate of said Stephen H. Dodd, once in the hands of his executors, and which has been lost, as is alleged, by their neglect.

The particular act of neglect relied upon is the failure to cause-to be filed for record a mortgage for $1,500, given by one Van Orden to the executors, to secure his bond to them for that amount, payable in one year, with interest. After the giving of the mortgage, the land which it covered was sold away from Van Orden by the sheriff of Essex county, by virtue of judgments against Van Orden, and came to be held by bona fide purchasers without notice of the unrecorded mortgage, whereby —Van Orden having died insolvent — a total loss has occurred.

The first question is as to the right of the administrator cum. testamento annexo to maintain the action.

I think the clear weight of authority in this state, as well as elsewhere, is that, in the absence of a statutory provision giving an ordinary administrator de bonis non such right, it does not exist. There is no such statute in tin's state except in the case of a removal of an executor, administrator or trustee for misconduct, by the probate court, and the appointment of a successor to take his place. In such case, a suit of the nature of the-present is expressly authorized, as pointed out by the chief-justice in McDonald and Glynn v. O’Connell’s Administrators, 10 Vr. 317. The case of Beall v. New Mexico, 16 Wall. 535, seems precisely in point against the right of the administrator to recover in this action, and many authorities are collected by Mr. Justice Bradley iu his opinion in that case. That suit was, in form, an action by the Territory of New Mexico against the first administrator and his sureties upon his official bond, to recover the amount of the estate of the decedent, as shown by the inventory thereof, made by the first administrator, and which, it was alleged, he had lost by selling it upon credit and failing to take proper security for it. The action, though in the name of the territory, was prosecuted by and for the use of the administrator de bonis non, and it was held it would not lie. In the course of his opinion the learned judge says: “For the delinquency of the former administrator in not prosecuting [claims which it was his duty to prosecute], he is responsible to the creditor, legatees and distributees directly, and not to the-administrator de bonis non.”

This rule was distinctly recognized and applied by Chancellor Zabriskie in Carrick v. Carrck, 8 C. E. Gr. 364, and is stated to-be settled law by the chief-justice in McDonald and Glynn v. O’Connell, supra; and see, also, Bradway v. Holmes, 5 Dick. Ch. Rep. 311. The only authority looking the other way is Lindsley v. Personette, 8 Stew. Eq. 355, decided by Chancellor Runyon. For the reason stated in Bradway v. Holmes, I feel constrained not to follow Lindsley v. Personette, and come to the conclusion, that the action cannot be maintained by the administrator.

However, this point was not taken in the answer, but the defendant answered fully to the merits, and they were fully gone into at the hearing. The wife of the complainant is the sole legatee and devisee in remainder of the testator, and is the real complainant in the cause. Motion has been made to amend by making her complainant in place of the present complainant, and making him a party defendant. A perusal of the bill shows that this can be done without materially altering its frame or prayer or stating any new matter requiring an answer. Under these circumstances, I think the motion should be allowed. A similar course ivas pursued in Bradway v. Holmes.

Looking at the merits, complainant’s case, briefly stated, is this: Calvin Dodd and Philip Ward, surviving executors of Stephen H. Dodd, deceased, on the 28th of November, 1873, . held the bond of Isaac L. Van Orden for $3,000, secured by a -■ mortgage given to them as such executors by Van Orden and •wife, on land in Essex county, which was ample to secure it. 'The bond and mortgage bore date March 3d, 1858, and the mortgage was duly recorded on September 1st, 1858, in the ..proper book of records. Ou or about the 28th of November, 1873, they surrendered these securities to Van Orden and took •in their place a new bond and mortgage to them as executors of 'Stephen H. Dodd, to secure $1,500 in one year, with interest, the mortgage covering a small part only of the land which had been covered by the first mortgage. The actual surrender of the old mortgage and the taking of the new mortgage was probably done on or about the 18th or 19th of December. On the date last named Van Orden caused the old mortgage for $3,000 to be canceled of record, but the executors failed and aieglected to cause the new mortgage to be registered or recorded. 'Van Orden shortly afterward became financially embarrassed, 'judgments were recovered against him, executions thereon were ' levied upon the lands covered by the mortgage, and the same ■ were subsequently sold thereunder by the sheriff of Essex county, .- and the title became vested in bona fide purchasers for value ■ without notice of the unrecorded mortgage. Van Orden died insolvent, and the debt is wholly lost. It abundantly appears that the value of the property covered by the $1,500 mortgage is, and always has been since it was given, ample to secure it. It also appears that neither the complainant nor her mother, who are the sole beneficiaries under the will of Stephen H. Dodd, • ever had any knowledge or suspicion of the existence of the •' $1,500 mortgage until about July, 1889, whén it was accidentally < discovered among the papers of Calvin Dodd, one of the executors, after his death. He died in 1878. In the meantime both mother and daughter supposed that they had some right and ' interest in the lands covered by the old mortgage, which lands ' had belonged to Stephen H. Dodd’s father, Samuel Tyler Dodd, . and they had made industrious and continued inquiries into the affair with the view of ascertaining what that interest was, and s. whether the purchaser at sheriff’s sale of Van Orden’s right had notice of it. Sucli inquiries commenced shortly after the death •of Calvin Dodd in 1878, and the death, which occurred a year •or two later, of Eliza Dodd, who was the widow of Samuel Tyler Dodd, and entitled to a life estate in the lands. Such inquiries resulted in discovering the unrecorded mortgage above stated, and that no proof could be produced to show that the holders of the title had any notice. It is proper, however, to remark here that no burden was cast upon the beneficiaries under •the will of Calvin Dodd, to show lack of notice to the holders •of the title of the lands. The natural presumption is against ■such notice, and the burden is on the executors or their representatives to show the contrary.

No account was ever rendered by the executors of Stephen II. Dodd of their dealing with the estate, either privately to ■the beneficiaries, or to the orphans court, or otherwise, so far as ■appears.

Now it seems to me that these facts show a complete case ■against the deceased executors. It should be observed that the executors are in reality not sought to be charged because they have lost the estate through their own negligence, though such ■negligence is stated as a part of complainant’s case.

Their liability arises out of their having once had the estate in their possession in the shape of a good bond and mortgage, and they cannot discharge themselves from this liability by saying that they lost that estate by their own breach of trust or negligence in the care of it. This proposition seems so self-evident as to require no authority to support it. There is, how‘■ever, abundance of authority for that purpose.

In Burrowes v. Gore, 6 H. L. Cas. 907 (at p. 956), Lord St. Leonards said: “ What is the position of Thomas Burrowes [the trustee] and of Robert Burrowes, his son [the defendant], as his representative? He ought to have the £1,500 in his hands ready to be paid over to the complainants. He is liable 'in a court of equity as having committed a breach of trust in not having that money forthcoming. * * * In his answer, Robert Burrowes says that he believes that the sums [of money ■demanded] have * * * been lost through the default of the trustee to the settlement [Thomas Burrowes]. Lost by the-neglect of the trustees ! "Who are the trustees? Why, he himself is a trustee at this moment. He is the representative of Ms-father, Thomas, who was himself a trustee.' How is it possible-for him for a moment to be heard to say, ‘ I have lost the money by my breach of trust ? ’ The answer should have been, ‘ If you have, you will be so good as to pay it.’ No trustee can, say as a defence, I have committed a breach of trust.”

In Holcomb v. Holcomb, 3 Stock. 281 (at p. 300), Chancellor Williamson said: “As to the promissory notes and all other debts not properly secured, it was the duty of the executors to-have collected them and made them secure. If, by permitting-them to remain without security, they afterwards were lost to-the estate, it was through the negligence of the executors in not properly discharging their duty, and they must be charged with their loss.”

The same principle is recognized in McCartvn v. Traphagen, 16 Stew. Eq. 323 (at p. 334).

Both executors are dead. Philip Ward left no property, and no defence is made by his heir-at-law. Calvin Dodd, the other-executor, left a considerable estate, which, by his will, he gave to the defendant, Samuel T. Dodd, who was his grandson. His-executors settled his estate many years ago, and were not made-parties.

Several defences are set up by Samuel T. Dodd, the grandson, and devisee of Calvin. I will notice them.

First. He alleges that, after the giving of the unrecorded mortgage of November 28th, 1873, viz., on December 5th, 1873,. seven days later, the present complainant and her mother conveyed, released and quit-claimed all their right, title and interest in the premises covered by the mortgage to the mortgagor, Yan Orden. Such a deed, or certified copy of it, is produced, and it covers the whole premises covered by the first mortgage. It purports to be recorded December 19th, 1873, the very day on-which the old mortgage for $3,000 was canceled of record.. Now, the giving of this release, whose consideration is $1, by-these ladies, who were mere beneficiaries under the will of' Stephen H. Dodd, and not mortgagees, does not and cannot,, upon its face, have the effect of discharging a mortgage given substantially at the same time to the executors of the will of the husband of one and father of the other. Even if the release had been given by the mortgagee to the mortgagor, no presumption would, under the circumstances, have arisen that it was intended to discharge the mortgage. The presumption would be all the other way, viz., that the bond and mortgage was given to the executors in consideration, in part at least, of the giving of the release. The presumption is that if the parties had intended to discharge the mortgage they would have done so-directly, and would not have adopted so expensive and roundabout a mode as the giving a release within seven days after its. date, and before its record, by a person not a party to it. I shall have occasion farther on to state the circumstances attending the giving of this release.

But in the next place, the defendant, not relying upon the release alone to show that the mortgage never had any vitality, falls back upon the previous history of the dealings of the parties interested in the mortgaged premises.

That history is, briefly, as follows : Samuel Tyler Dodd, the grandfather of the now complainant and the father of Stephen H. Dodd, died seized of them in April, 1849, testate, leaving a widow, Eliza, and seven children, viz., Stephen H., Phebe L. Van Orden, wife of Isaac L. Van Orden, John, Israel, Zebina, James W. and Samuel T. Some of these children were under age. So'much of his will as bears upon the present question is-as follows :

“Second. I give and bequeath to my wife, Eliza, the use of all my household furniture during her widowhood.
Third. I do authorize, empower and direct my executors hereinafter named, or the survivor of them, to sell and convey my lot of salt meadow, lying between meadows of Daniel Dodd and Calvin Dodd, for the best price that can be obtained for the same, and also to sell my personal estate, except the household furniture, and by and with the advice of my son, Stephen H. Dodd, either to sell and convey so much of my real estate as may be sufficient to pay all my just debts, or raise such amount as may be necessary for that purpose by a mortgage upon my real estate, the reason whereof will hereafter appear.
“Fourth. I do authorize my son Stephen H. Dodd to take, or my executors to convey to him, his heirs and assignees, all the remainder of my real estate •at the sum of three thousand dollars by his paying to the other of my legal heirs their share of the same as he may agree with them, upon the following conditions, that is to say, all my estate to remain except the amount for debts, which may be sold or mortgaged, for the use of my wife Eliza, if she remains my widow, to maintain and educate my minor children, and when the .youngest shall have attained the age of twenty-one years, then one-half the value above mentioned, my just debts and other charges on my estate being • deducted from the said three thousand dollars, be paid share and share alike to my heirs, the other half to remain for the support of my wife Eliza during her widowhood and no longer In case, of the marriage or death of my said wife, then my son Stephen H. Dodd to pay my heirs an equal share each, "himself included, out of what may remain. In case my daughter Phcebe ¡should marry before the first dividend of the estate, I direct my son Stephen H. Dodd, should my estate then be in his hands, or my executors, should it •not, to give her one hundred dollars, at her marriage, to be deducted from her •share in the first dividend.”

And he appointed Calvin Dodd and Philip "Ward his executors.

Besides the salt meadow mentioned in the will, the testator ■seems to have died seized of five several tracts of land: one of twelve acres, called the homestead, and one of six acres (these "two were afterwards conveyed to Van Orden, and the $3,000 mortgage above mentioned was given as consideration money); two tracts, one containing fourteen acres and forty-one one-hun•dredths, and the other, contents not given, sold together by the •executors in 1851, for $653.50; one containing one-fifth of an acre, sold, in 1857, for $910. The salt meadow produced $75. •Stephen appears to have taken possession of the homestead and to have held it as a home for his mother and younger brothers .and sisters while he lived. In June, 1854, he purchased from his brother, Israel L. Dodd, then just of age, his interest in his father’s estate, paying therefor $100 and taking his deed of conveyance for the land, which deed was duly recorded.

Stephen died testate in January, 1856, leaving the present •complainant, his only child, about two years old, and his widow •him surviving. By his will he provided as follows:

“ I hereby constitute and appoint Calvin Dodd, Philip Ward and Amzi S. Dodd, son of Calvin, of said township, county and state, and their survivors ■■and survivor, executors and executor of this my last will and testament, whom I do hereby authorize and empower to sell and dispose of my property, real and persona], for tiie payment of my just debts and charges, and as they shall think expedient from time to time to convey the same in fee simple or for a term of years for the benefit and behoof of my lieirs-at-law and to carry out and fulfill the intentions of the will of my father, Samuel T. Dodd, and with the consent of my father’s widow to sell, dispose of and invest the proceeds of such sale or conveyance for the benefit of my own and my father’s heirs-at-law.
I give and bequeath unto my loving wife Letitia the residue of my property, real and personal, to have and to hold the same during her widowhood,, and upon her marriage or decease, the same to go to my daughter, her heirs- and assigns forever, provided that if my said daughter should die leaving no-heirs of her- body, then and in that case, the same shall revert to the heirs of my said father deceased.”

It will be observed that he named the same executors as those-named in his father’s will, adding Amzi S. Dodd, who was-the son of Calvin Dodd and father of the defendant Amzi T. Dodd.

By deed dated March 23d, 1858, acknowledged March 25th,. 1858, and recorded September 1st, 1858, the three executors-above named — Calvin Dodd and Philip Ward being named as-executors of Samuel T. Dodd, and all three being named as-executors of Stephen H. Dodd — after reciting the power of sale, contained in each will, conveyed the two tracts of twelve acres-(called the homestead), and six acres, respectively, to Isaac L. Wan Orden, in consideration of $3,000. In satisfaction of this, consideration, Wan Orden and his wife gave back to the three-executors, as exectítors of Stephen H. Dodd only, a bond of like-date with the deed, to secure the sum of $3,000,

“or whatever less sum shall be found to be due from the executors of Stephen H. Dodd, deceased, at the time the youngest child of Samuel T. Dodd, deceased, shall attain the age of twenty-one years, to the heirs and for the widow of the said Samuel T. Dodd, deceased, under and by virtue of his last will and testament, which sum hereby required to be paid, and intended to be secured, is the sum which said will directs to be divided into two equal parts, upon the-said youngest' child’s coming of age, one part to be paid to the heirs of the-said Samuel T. Dodd, deceased, and the other part to remain for the support of his widow.”

This mortgage appears to have been acknowledged March 30th, 1858, before a different master from the one taking the-acknowledgment of the executors’ deed, but was recorded on the same day, September 1st, 1858.

The language of the condition of the bond indicates that Van ■Orden had taken the property upon the same terms upon which it was given to Stephen, viz., at $3,000, and out of this sum Van Orden was to pay the debts of the first testator and support the widow and minor children, and the net balance was to go to and be divided between the children of the first testator, Samuel T. Dodd.

There is further proof that this was the understanding of the parties. A receipt following a slatement in the handwriting of Van Orden and signed by the attorney of Letitia H. Dodd, the widow of Stephen, is produced, by which it appears that on May 7th, 1860, two years after this deed was given, Van Orden paid her a balance of $150.89, due on a total of $255.95, composed of $167.37, the amount of divers small debts of Samuel T., paid by Stephen H., and $88.58 of interest thereon.

Further, the bond of Van Orden, above recited, bears the following endorsement in the handwriting of Calvin Dodd, the executor now sought to be charged :

“Orange, January 27th, 1859. Deceived of Isaac L. Van Orden, seventy dollars for Letitia A. Dodd, widow of Stephen H. Dodd, as per receipts $70.00; do. received Isaac L. Van Orden ninety-four dollars for David Biker’s account as by receipt $94.00; do. received of Isaac L. Van Orden two hundred thirty-seven dollars one hundred thirty-seven xVr dollars being money advanced for the estate of Samuel T. Dodd’s estate, and one hundred dollars for services as executor of estate $237.37.
“Calvin Dodd,
“One of the executors of Stephen H. Dodd, deceased.”

This receipt was, I think, intended as a memorandum of credits which Van Orden would be entitled to upon the sum of $3,000 at the time the youngest child came of age. What became of the interest on the whole sum or how much went to support Eliza, the elder widow, and how much to educate the ■children, does not appear.

Another document produced by the defendant is as follows:

“$75. Orange, Dee. —, 1861.
“Received of I. L. Van Orden, seventy-five dollars, being an installment on •a dividend of one hundred and fifty dollars payable to each of the heirs of the late Samuel T. Dodd from his estate, the other half of said hundred and fifty dollars I direct to be paid to the order of Eliza Dodd, and endorsed upon an order given to her for one hundred and seventy-five dollars upon the executors •of the estate of Stephen H. Dodd, deceased.
“Letitia A. Dodd.
JExecutors of estate of Stephen Ii. Dodd, deceased:
“ Pay to the order of Eliza Dodd, one hundred and seventy-five dollars, as follows: Seventy-five dollars of the amount now due the estate of Stephen H. Dodd, deceased, from the estate of Samuel T. Dodd, deceased, and the balance of one hundred dollars to be paid when the next dividend comes due, which total amount you will charge to the estate of Stephen H. Dodd, deceased.
“Letitia A. Dodd.”

A close study of these memoranda indicates that the accounts, stated roughly, stood thus:

Land sold by the executors in Stephen’s lifetime....................................................$653 50
After his death.......................................... 985 00
Total............................................. $1,638 50
Debts paid by Stephen, as per Van Orden’s memorandum.......................................$167 31
Interest on that......................................... 26 57
Advanced by Calvin Dodd........................... 108 35
Interest......................................... 29 02
Calvin Dodd’s charges................................ 100 00
Biker’s bill............................................... 94 00
Total............................................. 525 25
Which, deducted from $1,638.50, leaves in the executors’ hands...............'........................................$1,113 25

a sum quite sufficient from which to make a dividend of $150 each to six children, John having previously died intestate and unmarried, and leave untouched the half of the $3,000 which, by the will of Samuel T. Dodd, was to be divided at the majority of his youngest child. This balance remaining from the sale of the out lots must be the fund from which this dividend was declared, since, as will appear farther on, the youngest child •did npt attain majority until about 1870. But the conveyance for value of Israel’s share in the land to Stephen in his lifetime,, and before the several conveyances by the executors, gave Stephen’ the right to have Israel’s share in the net proceeds of those sales- and increased his interest from a sixth to a third.

In the meantime, in August, 1858, after the date of the exeeutor’s deed, but before its record and the record of the $3,000* mortgage Van Orden procured to be executed by Zebina Dodd, Israel Dodd and James ~W. Dodd, three of the children of Samuel Tyler Dodd, a deed conveying to him, in consideration of $1,000, the same land comprised in the executors’ deed. The-wives of Zebina and Israel are named as grantors in that deed,, but they did not execute it until 1873. Samuel T. Dodd, another of the children of Samuel Tyler Dodd, is also named as a. grantor, but by reason of his infancy did not execute it until about the time it was recorded — December, 1873. This deed was recorded on the same day that the first mortgage was canceled, viz., December 19th, 1873, though executed by three of the grantors many years before. The four children named in. and who executed it — Zebina, Israel, James and Samuel — comprised all the living children of Samuel Tyler Dodd the elder,, except Mrs. Van Orden.

On the same day, December 19th, 1873, Van Orden lodged' for record a deed from his mother-in-law, Mrs. Eliza Dodd, the-widow of Samuel Tyler Dodd, which, in consideration of $1, released to him all her interest in the mortgaged premises. This conveyance, as well as the release from Mrs. Letitia Dodd and her daughter, the complainant, was prepared by and executed in the presence of Mr. Edward D. Pierson, an attorney practicing in Orange, since deceased.

The procuring of these releases from the two widows and the putting of them on record on “the same day that the old mortgage was canceled, and the fact that the unrecorded mortgage-covered only a very small part of the whole premises — two hundred feet by one hundred and sixty feet, less than three-quarters-of an acre — indicates that some question had been raised as to* the sufficiency of the conveyance of 1858 made by the joint executors to Van Orden; In no other way can I account for-the trouble taken to procure and record releases from the two widows and the complainant and all the surviving children.

With regard to the release from Mrs. Letitia Dodd, widow of Stephen H., and her daughter, the now complainant, it purports to be in consideration of $1; and the proof is clear that nothing was paid for it. The evidence of Mrs. Lindsley, the complainant, upon this subject, was given in such a manner as to command belief in the honesty of the witness and reliance in the accuracy of her evidence. At the date of its execution she was just past twenty-one years of age, was living with her mother and engaged in teaching a public school in the city of Orange, about a mile from their residence. She was called upon at the school-house, during school hours and while in the midst of her school duties, by Mr. "Van Orden and Mr. E. D. Pierson, and asked to'sign the deed in question. She was told by one-of them that her mother had already signed it. She had just commenced teaching that school, and was agitated and excited. No previous appointment had been made for that purpose, nor-had the subject been previously mentioned to her by anybody. As a reason for wishing the release signed, Pierson said to her, in "Vau Orden’s presence:

“ Mr. Pierson said that Mr. Yan Orden wished to make some improvements on the property, and that he could not make them without my signature, and-told ine it was to my interest that these improvements should be made, and wanted me to understand distinctly that it did not cut me off' one cent. Those were his exact words. And he reiterated that remark to me in the aisle as he passed out. He said: ‘ You understand that this don’t cut you off one cent.’ ”

And, again, on cross-examination:

“Q. You say he told you it would not cut you out?
“A. He told me it would not cut me off one cent.
“Q. Then what did you think you were signing?
“A. I thought I was simply giving Mr. Yan Orden permission to go ahead and improve the property; that was the idea I had.”

Now, if we give full effect to all the foregoing evidence and draw every inference it will bear in favor of the defendant, it still falls short of showing that, in December, 1873, when the old mortgage was canceled, it had been fully paid. This would be the result leaving out of view the fact that the new mortgage for one-half the amount was given back at the time of its cancellation. Taking that into account, in connection with the clause in the will of Samuel Tyler Dodd providing for dividing the estate when the youngest child attained majority, I think it clear enough that the cancellation of the old mortgage and the giving of the new one were brought about in this wise: Van Orden was able to satisfy the executors, or rather Calvin Dodd, for the evidence shows that he was the acting executor, by the production of the releases from the four children, given for a consideration, or by other means, that $1,500 was all that was due, and the new bond and mortgage was given for that amount, and that it should have been, and but for the failure to record it and the insolvency of Van Orden would have been, a valid security for that sum.

In the next place, the defendant relies upon great lapse oi time, and pleads the statute of limitations.

It will be observed that, by the will of Stephen H. Dodd, his estate was given to his wife during her widowhood. She did not marry a second time, and died October, 1892, less than six months before the present bill was filed. Up to that time, the present complainant had no right at law to sue the executors or their representatives for the residue of the estate. She may have had, and probably did have, a right to call them to an account in order to ascertain the exact amount and condition of the estate in their hands, and if she was aware that there had been any loss of the estate by their neglect, it may be that she had, as a person interested in the preservation of the fund, the right to come into equity and compel them to make it good in advance of the maturity of her right of enjoyment. But if that is so, I still do not see how she can be said to be in laches in not pursuing such right before she knew' of the default out of which it arose. And it is clear that she had no knowledge of this default until the unrecorded mortgage was found in July, 1889. It is abundantly clear, as before remarked, that neither the complainant nor her mother ever knew anything definite about the details of the dealings with the two estates. They saw the two wills, and understood that the right, whatever it was, of the present complainant, was subject to her mother’s life estate, and that the rights of both mother and daughter were subject to the life right of Eliza, the widow of the elder Dodd; and she lived until 1879, having survived Calvin Dodd, the'executor, by one year.

Now, the complainant swears that her mother called on Calvin Dodd about her and her daughter’s supposed right in this land, and that her mother informed her that Mr. Dodd said that their rights were secured, in some unexplained way, in the property, but that no settlement of it could be made until the elder widow, Eliza, died. That explanation was probably strictly true, for it is quite probable that Van Orden, who was living on the homestead with his mother-in-law, claimed that she was entitled to the interest on the $1,500 during her life.

The judgments went against Van Orden in July and August, 1875, and amounted to a small sum, considering the value of the land over and above all encumbrances at that time. They were sold by the sheriff, for the comparatively trifling sum of $490, to John A. Van Orden, a brother of lsaac, and one Josiah F. Dodd, a neighbor but not a relative. Calvin Dodd was a near neighbor. Subsequently John A. Van Orden conveyed his interest to Josiah F. Dodd. The circumstances of the conveyance render it probable that if Calvin Dodd had at that time — that is, shortly after the sale — discovered or known that his mortgage was not recorded, he might have saved it by recording it after the judgments, because the. land" wa's worth enough to pay both the judgments and the mortgage, and it is by no means improbable that he could have enforced it against Josiah F. Dodd and John A. Van Orden', even after the sale. The circumstances also indicate that Calvin Dodd did discover that the mortgage was unrecorded at a period Some time after the sheriff’s sale. I infer this from his failure to mention its existence to Mrs. Letitia Dodd in her various interviews with him, in which he put her off until after Eliza’s death. Certain it is that so far as appears he never did state to Mrs. Letitia Dodd that her claim under her husband’s will was satisfied, but always encouraged her to believe that it was still alive, in force- and secure; and equally certain it is that he never disclosed toiler the existence of the mortgage. It is impossible to account for the condition of the minds of the mother and daughter, as-shown by the evidence, upon any other theory.

After the death of the elder widow and life tenant, Mrs.. Letitia Dodd, widow of Stephen, prosecuted her inquiries, and therein had the assistance of a competent member of the New York bar, who gave his aid without charge. He had no suspicion of any mortgage, but after examining the records and getting what information the two ladies could give him, went upom the hope that, under the circumstances, he might make out a. case of an equitable interest in their favor in the land, and that the purchaser at the sheriff’s sale had notice of it.

There can be no doubt that Calvin Dodd occupied, in this-matter, the position of a trustee of an express trust toward the complainant. And it is equally certain that the neglect of duty which led to the loss occurred as early as the time of the recovery of the judgments in 1876, if not in 1873, the date of the mortgage.

The statute of limitations does not, in express terms, apply to equitable actions. Nevertheless, courts of equity feel bound to follow and apply it in all cases where an action at law is a concurrent remedy. Bank v. Veghte, 15 Stew. Eq. 39. And also in cases of acquiescence in wrongs for remedy of which the party must come into equity, where the party has acquiesced in the wrong for the statutory period with knowledge of his rights, and without excuse for the delay. 1 Pom. Eq. Jur. § 419. Actions by a cestui que trust against his trustee, where the trust is what is called an express one cognizable only in equity, are-usually not within the statute of limitations as applied in equity, for the reason that ordinarily the possession of the trustee is the-possession of the cestui que trust. Their attitude toward each other is not hostile or antagonistic, and there is no cause of action to be barred. Dyer v. Waters, 1 Dick. Ch. Rep. 485, and cases.

But if the trustee of an express trust has assumed a hostile. attitude against the cestui que trust — has disavowed the trust and denied the right of the cestui que trust, or has committed a breach of trust, resulting in the loss of the estate, which has come to the knowledge of the cestui que trust, and has refused to make it good — then there is a present cause of action by the cestui que trust against the trustee, and the case so presented seems to me not to be within the rule that the statute of limitations does not run against an express trust. Nevertheless, there are numerous •authorities which hold that the statute of limitations does not run in equity against such a breach of an express trust. 2 Lew. Trusts (Flint’s ed., 8th Eng. ed.) §§ 900, 901; Metropolitan Bank v. Heiron, 5 L. R. Exch. Div. 319 (1880) (at p. 325): “Where a trustee has a fund in his possession and wastes it either by neglect of duty or by doing an act not justified, and the cestui que trust comes to recover his money, no time will bar his suit, for it is a claim by the cestui que trust against the trustee for money or property which was in the possession of the trustee, ■and must be considered as in the possession of the trustee for the benefit of the cestui que trust until the trustee duly discharges ■himself. To such a suit there is no bar by statute.”

See, also, Obee v. Bishop, 1 De G., F. & J. 137 (at p. 140); Woodhouse v. Woodhouse, L. R. 8 Eq. Cas. 514; Burrowes v. Gore, 6 H. L. Cas. 907 ; Butler v. Carter, L. R. 5 Eq. Cas. 276 (1868); Brittlebank v. Goodwin, L. R. 5 Eq. Cas. 545 (1868). In this case there is a review of the authorities. The case itself is very much in point with the one before the court, and it has been cited with approval and followed in many other cases. In re Cross, Harston v. Tenison, L. R. 20 Ch. Div. 109 (1881) (at p. 121), Lord-Justice Baggallay, in his written judgment, said: “With reference to the contention that any •claim which the parties interested in the trust estate, whether as trustee or cestui que trust, ever had against Hannah Cross, was barred by the statutes of limitation before the present action was commenced, it is sufficient to state the recognized doctrine of equity that as between the trustee and the cestui que trust no time will operate as a bar to the equitable claim of the latter in respect of a breach of an express trust; the second rule of the twenty-fifth section of the Judicature act of 1873, which provides that £ no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any statute of limitations;’ is but a statutory declaration of a law which had always been recognized and administered in courts of equity.”

See, also, Story v. Gape, 3 Jur. (N. S.) 706 ; Williams v. McKay, 13 Stew. Eq. 189; Williams v. Reilly, 14 Stew. Eq. 137.

Conceding, however, that for a direct and open breach of trust, avowed by the trustee, and for which he refuses to make amends and places himself in an attitude of hostility to his cestui quetrust, the court ought to apply the rule governing in other cases of equitable wrongs, yet it is entirely clear that such rule will not be applied unless the injured cestui que trust has notice and knowledge of the injury and the right growing out of it. Just here is found the radical weakness in the trustees’ plea of laches.'

It is quite- clear in this case that complainant has not knowingly slept on her rights for the statutory period. It is true that if she had employed counsel as soon as she became of age, in the-lifetime of both the life tenants, it is probable that such counsel would have discovered the true state of the affair, but I can find-no authority for debarring her from relief because she was not diligent in ascertaining just what her rights were when, as here, the mystery surrounding them was due to the neglect of duty of the trustee. It was his duty to keep a record of his dealings-with both estates, and he kept none; and to render an account of those -dealings either to the cestui que tmst or to the court, voluntarily, and he rendered none. The duty to account arose-at least as soon as the youngest child of Samuel T. Dodd arrived at age, and that could not have been later than 1871, for the father died in 1849.

There must have been some sort of a settlement in 1873, when the old mortgage was canceled and the new one taken. To believe otherwise is to charge Calvin Dodd with utter neglect of his duty. But if any such settlement was had, no record of it was kept or rendered. It may be, as before suggested, that Van. Orden induced Calvin Dodd to act upon the release, for value, given by the four children. Be that as it may, the new mortgage was not recorded, and these helpless ladies were left entirely in the dark as to the condition of their affairs, and for this ignorance the executor was responsible. That being so, it seems to me that it does not lie in his mouth to say to the complainant, you might have ascertained the facts if you had employed competent counsel.

The result is that the defence of lapse of time fails in whatever view we take of the case. The complainant had no right at law till the death of her mother, in 1892; and if she had a right in equity, it was one which it is doubtful, at least, if she was under any obligation to enforce until her .mother’s death, and she is not in the situation of being chargeable with having knowingly slept on her rights.

It follows that the complainant, as the sole legatee of her father, Stephen H. Dodd, is clearly entitled to relief against the answering defendant, as sole legatee of Calvin Dodd, the only one of the negligent trustees who has left any property. The only question is as to the amount which she is entitled to recover.

Clearly, she is not entitled to any part of the interest on this fund during her mother’s lifetime. For that interest, the personal representative of her mother must sue.

The only remaining question is as to whether there is any presumption here that the other children of Samuel Tyler Dodd, the first testator, have any interest in this fund which can or should be recognized and protected in this suit. The bond and mortgage was given to Dodd and Ward, as executors of Stephen H. Dodd, deceased. Prima fade, the money belonged to his estate. If his brothers and sisters had any interest in it, they should make claim against his estate for it. No such claim has ever been made so far as appears. The evidence shows that they did receive substantial payments from Wan Orden. Israel Dodd received a payment from him. in addition to the payment which he previously received from Stephen H. Dodd at the time he gave him his conveyance. On the back of one of the exhibits hereinbefore set out, are receipts from the other brothers and sisters for shares in the fund, and the release from the four children, which was put on record at the date that the $1,500 bond and mortgage was given, is expressed to be in consideration of $1,000. Such papers as are in the handwriting of Isaac L. Van Orden show a great confusion of ideas, and it is not easy to interpret them. The fact remains that when the $3,000 bond and mortgage was surrendered and the $1,500 bond and mortgage taken in its place, no money was paid to the complainant or her mother, while the other legatees of Samuel T. Dodd did receive money and have made no claim for any part of this fund, although some of them had notice of the suit. And I think that the fair presumption is that the whole of this fund belongs to the complainant.

In the absence, then, of any defence based on the contrary notion, I will advise a decree in favor of the complainant against the answering defendant, for $1,500, with interest from the date of the death of her mother.