author: Bergen, Vice-Ordinary.

text:
    In the matter of the probate of a paper purporting to be the last will and testament of Catherine McLaughlin deceased.
    [Decided February 7th, 1905.]
    1. The fact that a testatrix had great confidence in her brother, and appealed to him for advice, and accepted from him assistance and counsel in the management of her business, cannot be made the sole foundation for a claim that he improperly influenced her in favor of his children.
    2. Where a testatrix, after the execution of a will, drawn according to instructions given one who conveyed them to the draughtsman, has the executed will in her possession a sufficient length of time, and with the opportunity and ability to acquaint herself with its contents, and she then preserves it, it will be conclusively presumed that the will was prepared according to her instructions, especially when it follows her pronounced intentions and provides for no unnatural disposition of her estate.
    On appeal from Middlesex orphans court.

      Mr. Theodore B. Booraem, for the appellants.

      Mr. Theodore Strong, for the respondents.
   Bergen, Vice-Ordinary.

Catherine McLaughlin was unmarried, her nearest relatives being a brother, 'Charles, and sister, Mary Eoyle. Her intimacy with her brother and his family was extremely close and friendly, while, on the other hand, she was estranged from her sister, because of a real or fancied wrong done her by her sister many years before her death, the evidence showing that her sister had not been at the house of testatrix for nearly seventeen years, until the day before her death, although during all of this time they had resided in the city of Hew Brunswick.

On the day of her death the testatrix executed her last will and testament, by which she gave all of her estate, excepting $25 bequeathed to her sister, to the executors named in the will, in trust, to hold until the youngest child of Charles reached the age of twenty-one years, when it is to be equally divided among his children, and appointed two of the sons of her brother as executors. This will was admitted to probate by the surrogate of the county of Middlesex, from whose order an appeal was taken to the orphans court of that county, which resulted in a decree annulling the order of the surrogate. The present appeal brings up for consideration this decree of the orphans court. The formalities attending the execution of the will required by law were sufficiently' observed to sustain the judgment of the orphans' court that it was properly executed, but I find no sufficient proof to sustain the finding below that undue influence, as defined by our courts, was exercised, or that the free agency of the testatrix was so destroyed as to constrain her to do that which she would not have done if left to herself. On the contrary, the disposition of the property followed the declared intentions of the testatrix announced by her on more than one occasion prior to the execution of the will, and owing to the enmity which she felt towards her sister, and the kindly relations existing between her and her brother Charles and his family, the property was loft by this will to those who would naturally expect to be the recipients of her bounty. That she had great confidence in her brother, appealed to him for advice, and accepted from him such assistance and counsel in the management of her business as she had a right to expect from one standing in so close a relation, and that this brother rendered sneh service, cannot and ought not to be made the foundation and sole support of the claim here made that he improperly influenced her in favor of his children. There should be proof of other facts or circumstances from which it may be fairly inferred that the will of the testatrix was dominated by the brother and her free agency thereby destroyed. TJpon a careful review of all of this evidence, I cannot but conclude that the situation surrounding the preparation and execution of this will is similar to the conditions existing in Gilman v. Ayer, 47 Atl. Rep. 1049; affirmed in 63 N. J. Eq. (18 Dick.) 806.

The really important, and, in fact, only question worthy of consideration is, did the testatrix have that knowledge of the contents of her will which the law requires in order to make it a lawful testamentary declaration of the wishes of the testa1 trix? The testimony shows that about a week before the will was executed the testatrix spoke to her brother Charles and told him that she wanted to make a will, giving him directions as to the manner in which she desired to dispose of her property, and that he agreed to come down the next, morning and attend to it; that on the following morning he found her much better and said to her, “I don’t think you want to make a will,’’ and she replied that she was feeling much better than she had for the last few days and the matter was not then further discussed. On the following Monday, being the day of her death, her brother saw her early in the morning, and she told him that she felt very badly and said, “I want you to attend to this will immediately; I want you to go to Mr. Elmendorf and take your son with you and have this will fixed as I dictate to you right off,’’ and in response to his sister’s request the brother went to Mr. Elmendorf and repeated to him what his sister had dictated, she having, as he testified on that morning, repeated her directions, with the exception that she added to them a gift of $25 to her sister as a recognition of her first visit to the testatrix in seventeen years, made between- the day when the instructions were first given and the latter day. The brother, Charles, testified that the directions given him by his sister were faithfully repeated to Mr. Elmendorf, who made pencil memoranda from which the will was afterwards prepared. These memoranda were preserved and put in evidence and in all material particulars correspond with the will as drawn. After preparing the will Mr. Elmendorf went to the house of the testatrix with it, talcing with him Hugh McKeag to witness the execution; that shortly after they arrived he said to the testatrix, “We have come to witness your last will and testament, shall I read it to you?” to which, the testatrix made no reply, but shook her head indicating he should not; he then handed to her the paper, and she looked to her brother in an inquiring sort of a way, who said, “That is all right, Kate, I know it is all right;” then the testatrix opened the paper, put on her glasses, and as she did so Mr. Elmendorf turned and walked a few steps away, towards the window, to give 'her a chance to read the will; after standing there, as he now estimates about a minute, he heard something said which indicated that the testatrix was about to sign the will, he turned, walked over to the table where she was sitting, and found that she had already written the first four letters of her name; he then watched her finish the signing, read to her the attestation clause, which is in full form, and requested McKeag to sign his name as a witness, which he did, following which Mr. Elmendorf subscribed his name as a witness, folded the paper, handed it to the testatrix, saying “here is your will,” and when he and McKeag left the testatrix had the will in her possession. Mr. McKeag, the other witness, displayed so much forgetfulness, if not ignorance, that his testimony is of ver}'' little assistance. He testifies that the will was not read to the testatrix; that she had the opportunity to read it; had it in her hands, and that it was given to her to read, but he thought she did not read it; that it appeared to him that she was satisfied with the will from the answer Mr. McLaughlin gave to Mm, the witness, when he asked him what it was, which was that it was merely a paper making his sons executors of this estate; that that was all he, the witness, knew about it, and that he “didn’t think it was important as to the exact words used.”

On the argument it was most earnestly insisted that the testatrix was led to believe that she was merely appointing executors and making no disposition of tier estate, and that her brother Charles so completely dominated his sister that when he told her “that is all right, Kate; I know it is all right,” he was deceiving her with the belief that she was simply appointing executors. I cannot accept this view. The testatrix, although very ill, was, according to the weight of the testimony, possessed of all her mental faculties. She could read and write, and for many years had managed her own business, collecting moneys due her and making loans thereof, and is spoken of by the witnesses as being a sharp, bright woman. I do not believe that MeKcag remembers the whole conversation when he says he was told that the paper merely provided for the appointment of executors. His statements are so desultory and unsatisfactory as to prevent their acceptance as a basis for the alleged deception, and I am disposed to consider the remark made by the brother, testified to by Mr. Elmenclorf, as an assurance that the paper contained her wishes as expressed to him, and that when he said “I know it is all right,” he had reference to his knowledge of its contents, derived from the reading, of the will to him by Mr. Elmenclorf, after its preparation, when, as Mr. Elmendorf says, he compared the will with the memoranda and checked it, to see if he had included all the legatees. This language will certainly bear this interpretation, and in the absence of any proof of fraud, presumptions in favor of honest dealingsliould prevail. Hor do I believe that a person of the attainments possessed by this testatrix supposed she was taking all this trouble simply to appoint persons to administer her estate.

The testimony of the brother is assailed because, as the father of the favored legatees, he is greatly interested, and also for the reason that, according to the testimony of two of the daughters of Mary Foyle, namely, Annie and Catharine (their mother having died since tire commencement of the proceedings), they were at the house of the testatrix from about six o’clock in the morning until her death, and overheard the brother insisting that the testatrix should do something which she appeared to be reluctant to do. But I am satisfied that all that these witnesses testified happened may have reference to some other matter, especially so in view of their testimony as to what occurred with regard to the endorsement of a note or notes, or the signing of a check, that morning between the testatrix and her brother, and in considering this testimony it should be borne in mind that the respondents are as much interested in the result and perhaps more so than the brother,' because if the decree below should be affirmed they will take one-half of this estate. However, if we accept the construction contended fox by the respondents, it would not prove that the contents of the will were not in accordance with the wishes of the testatrix.

In addition to the fact that the directions for the preparation of this will were given by the testatrix; that the will was placed in her hands for the purpose of being read by her before its execution; that she did not immediately sign it, but had it in her possession before doing so for a short time; that after it was signed by her, the attestation clause was read and assented to by her, it also appears by the testimony of Charles McLaughlin, J.r., one of the legatees, that this testatrix had this will in her possession; that she was reading and did read it, and spoke to him of some of the contents, and manifestly, if she had been deceived and her instructions had not been followed, she would then have denounced the fraud and destroyed the will. It is urged that this testimony ought not to be accorded any weight because of the great interest the witness had in the result of this litigation. I have considered that, but in the absence of any proof of his want of integrity I think it is entitled to credence. Besides this, it clearly appears that this will was left in the possession of the testatrix, and was simply a folded paper, not enclosed in any wrapper, and subject to an immediate reading, and the presumption should be that she read it. If a will has been in the hands of a testator a sufficient length of time before its execution to permit the reading of it, it is well settled that the testator is presumed to have read it, assuming that he had the ability to read, and I think the same presumption ought to exist where the testator, after the execution of a will, drawn according to instructions given to one who conveys them to the draughtsman, has the executed will in his possession a sufficient length of time and with the opportunity and ability to acquaint himself with the contents. And if, after such opportunity, he preserves it, the presumption that it was prepared according to his instructions becomes conclusive, especially when, as in this case, it follows his pronounced intentions, and provides for no unnatural disposition of his estate. I am satisfied that this will expresses, the intention of the testatrix; that no fraud was practiced or undue influence exercised, and that, while that care and carefulness which a member of the bar should exercise in acquainting the testatrix with the contents of her will was not shown, yet nevertheless I am convinced from all the evidence that this testatrix knew the contents of this will, and that it expresses her uncontrolled wishes. It therefore follows that the decree of the orphans court should be reversed, and I will so advise.


source: Caselaw Access Project

license: Public Domain

text:
    In the matter of the last will of Mary Hynes, deceased.
    [Decided May 9th, 1905.]
    With the consent of the appellant, the orphans court may dismiss an appeal from the decree of the surrogate admitting a will to probate, without notice to the persons who may have been cited to appear, and without hearing the subject-matter of the appeal.
    On appeal from Hudson county orphans court.

      Mr. James A. Gordon, for Roger Ryan, the appellant.

      Messrs. Wilson, Garr & Stackhouse, for the respondents.
   Bergen, Vice-Ordinary.

By the decree of the surrogate of the county of Hudson, bearing date September 3d, 1903, the last will of Mary Hynes was admitted to probate. From that decree an appeal to the orphans court of the county of Hudson was regularly taken by Mary Hynes, one of the children of the testatrix, and citations were thereupon issued to all persons interested as if the contest had been instituted by caveat, and there had been no decree by the surrogate. On August 24th, 1904, an order was made, with the consent pf the appellant, by the orphans court dismissing the appeal of Mary Hynes, and it is from this order that Roger Ryan, who was among those cited oar the appeal of Mary Hynes, appeals to the prerogative court, although he has never appealed from the surrogate’s decree of probate.

The. oaaly question to which the brief for the appellant, Ryaar, was addressed is the power of the orphans court to dismiss, with the consent-of the appellant, an appeal from the decree of the surrogate admitting a will to probate without notice to all persons who array have been cited to appear, and without hearing the subject-matter of the appeal.

The general rule that an appellant array have his appeal dismissed at any tirare while the cause remains within the jurisdiction of the appellate court, upon such terms as to costs as may be lawfully imposed, is well established, but the appellant here insists that under our statute the orphans court has rro power to dismiss an appeal of this character, but is bound to proceed and hear the case anew at the request of any party in iarterest even if such party, arot having appealed from the surrogate’s decree, would be estopped from proceeding oar his own account. This claim is based upon sectiorr 202, page 793, of the Orphans Court act (P. L. 1898), the pertinent part reading:

“Proceedings of surrogates, respecting the probate of a will, shall be subject to appeal to the orphans court by any person interested, * * * and to proceedings thereon, as if the will had not been proved.”

In my opinion the decree of the surrogate admitting this will to probate operates as a conclusive adjudication which can only be avoided by air appeal taken within the time allowed by the statute, and that proceedings under the appeal should be confined to ascertaining and establishing the rights of the party prosecuting the appeal. Under this statute the proceedings below are made “subject” to appeal at the option of oire qualified to. exercise that right, aird the language used cainrot be construed to meair that all who could, but have irot availed themselves of tlio option within the time fixed by law, become joint appellants entitled to control the action of the diligent suitor.

The action of the orphans court in issuing citations cannot invest one cited with any right he did not previously possess; not having taken an appeal his right was lost, and the citation could not restore the privilege. While the section of the act-under consideration does not authorize or provide for the citation of parties whose rights have been settled by the decree of the surrogate from which they do not appeal, it is quite proper, however, that some notice of the appeal should be given to such as might be injured by a reversal of the surrogate’s action, but when thus in court, not having appealed, they can only be heard in support of the decree below. To hold otherwise would permit one, who for want of an appeal has no standing in court, to contest a decree from which he has taken no appeal, and allowed him a right which the law denies to him if proceeding on his own behalf.

Under section 13 of the act we are considering any person interested may deprive the surrogate of his jurisdiction and require the proponents to summon all parties, and in their presence submit the proof required to sustain a probate, in which proceeding the orphans court has original jurisdiction, but this section applies only when a caveat is filed, or the surrogate, for reasons stated in the law, declines to act and submits the matter to the orphans court. If, however, no caveat is filed and the surrogate retains jurisdiction, his determination as expressed in his decree is final, and bars all who do not appeal, where a review of his decree is sought under conditions here existing.

The decree of the orphans court is therefore affirmed.


author: M'agie, Chancellor.

text:
    William H. Woglom v. Anna M. Kant et al.
    [Decided May 23d, 1905.]
    1. A complainant in a bill, one object of which is the partition of lands, may include therein a question of title to said lands when that question is one for equitable cognizance, and especially when the complainant’s claim in that regard is essential to his success in obtaining relief by partition. Such a bill is not objectionable on demurrer on the ground of misjoinder of causes.
    2. A bill seeking partition ■ of lands by the complainant as an heir-at-law of deceased owners thereof disclosed that the title of the deceased owners had been devested in their lifetime by a sale of the land for taxes, which title had been acquired by another heir-at-law, and sought relief against the tax title thus acquired by avoiding it, or by a judicial declaration that it enured to the benefit of complainant and all .other of thé heirs-at-law on their contributing their just proportion of the burden thereof. Such relief-was sought on the ground of fraud. On demurrer thereto for lack of equity—Held, (1) that the bill was defective in not stating any facts on which the claim of fraud could be supported, and (2) that this defect was fatal to the whole bill, as complainant’s claim for a partition was dependent thereon.
    On demurrer to bill.

      Mr. James E. Ilowell, for the demurrants.

      Mr. John TV. Beeleman, for the complainant.
   M'agie, Chancellor.

The question presented in this case arises upon the joint and several demurrer of Anna M. Kant, the Eahway Savings Institution and Clarence D. Ward, three of the defendants to the bill of complainant.

It appears by the statements of the bill that in October, 1868, Charles P. Martin was the owner of the undivided five-sixths of certain lands lying in Perth Amiboy, and that Elizabeth Martin, the sister of Charles, owned the remaining undivided one-sixth thereof, and that Charles P. Martin then died, leaving a last will whereby he devised his interest in said lands to his sister Elizabeth for the term of her natural life, with remainder in fee to another sister named Nancy P. Woglom.

The bill further states that on March 20th, 1897, Nancy P. Woglom died-intestate, leaving as her only heirs-at-law her children Anna M. Ka.nt and William PI. Woglom, the complainant, and. that on the 20th day of March, 1898, Elizabeth Martin died intestate, leaving her surviving, no children, but a brother, and nieces and nephews, who are made parties to the bill.

The-'bill charges that upon the death of Nancy ,P. Woglom the :undivided five-sixths of said lands became vested in complainant and Anna M. Kant as tenants in common, and that upon the death of Elizabeth Martin the one-sijcth of said lands became vested in the brother and nieces and nephews of Elizabeth Martin.

Upon -the above statements and charges the complainant claims a decree for the partition of said lands, and if nothing else .appeared, it is obvious that he would be entitled to maintain this suit.

But the question presented for consideration arises upon further statements in the bill to the effect that on April 22d, 1892,-said lands were sold by the city of Perth Amboy for non-payment .of taxes and assessments, amounting to' the sum of $402.02; that the sale was made to James L. Compton, the collector of revenue of said city, who bought in the lands for the use and benefit of the said city, and that Anna M. Kant, for the purpose of depriving her mother, Nancy P. Woglom, her aunt, Elizabeth Martin, and the complainant of their rights and interests in said lands and securing the title thereto in herself, colluded and conspired with one George A. Seaman, and procured him to purchase from the said city of Perth Amboy the rights it had acquired in said lands by the tax sale for $891.25. At what date this purchase was made or by what it was evidenced is not made to appear, but the bill states that Seaman served notice to' redeem upon Nancy P. Woglom and Elizabeth Martin, the notice to Nancy P. Woglom being stated to have been served upon her in the presence of Anna M. Kant, with whom she was then living.

The bill further states that Nancy P.-Woglom was at that time eighty-eight years old, infirm, deaf and helpless, and that Elizabeth Woglom, at the time of the service of the notice to redeem, was a very aged, infirm and helpless person over eighty-five years of age.

The bill further states that, in pursuance of the agreement between Seaman and Anna M. Kant, Seaman, about January 14th, 1897, gave a deed to Anna M. Kant for all his rights and interests in the lands for the pretended consideration of $1,125, and that Anna M. Kant has, since the death of Elizabeth Martin, taken the rents and profits of the premises in question to her own use.

The bill further states that Anna M. Kant, on November 12th, 1902, mortgaged said lands to the Rahway Savings Institution to- secure the sum of $4,000, and on the same day mortgaged the sarnie lands to Clarence D. Ward to secure $500, which mortgages are unpaid and are liens. The savings institution and Ward are made parties to the bill, and have joined with Anna M. Kant in this demurrer.

The bill charges that the procurement of the tax title to the lands by Anna M. Kant was a fraud on the rights of her mother and the- complainant and other heirs of Elizabeth Martin and Nancy P. Woglom, and thereupon the bill prays that the certificate of sale for taxes given by Compton to Seaman and the deed given by Seaman to Anna M. Kant should be set aside on payment to Anna M. Kant of the proportionate part of said taxes that complainant and the other parties interested in the lands should pay, or that Anna M. Kant should be decreed to hold said lands by virtue of said deed for the benefit of complainant and the other parties.

It is further prayed that if the lands should be found to be incapable of actual partition among the parties that the same may be sold, freed and discharged from the mortgages to the Rahway Savings Institution and to Ward, the amount due upon said mortgages to be paid out of the proceeds of the sale from the share of said Anna M. Kant upon distribution.

The demurrer indicates the following grounds of objection to the bill: First, want of equity; second, multifariousness or

misjoinder of causes of action; third, upon the statements of 'the bill the complainant shows himself to have no title to the lands; fourth, the allegations of fraud are insufficient; fifth, the Rahway Savings Institution and Ward are bona, fide mortgagees, against whom the bill makes out no case.

The reason most strongly urged in support of this demurrer is that the bill misjoins causes for relief. The contention is that the claim to set aside and avoid the tax title acquired by Amia M. Kant cannot be joined with a prayer for relief by partition of the lands which were the subject-of the tax sale.

Where, upon a bill for partition of lands, the legal title of the parties thereto is brought into dispute, a court of equity will not proceed to- settle that dispute, but will either dismiss the bill or retain it to allow the legal title to- be settled in an action at law. But, if upon such a bill the title of any party is disputed on equitable grounds, tire legal title not being contested, a court of equity will pass upon and settle that dispute in the partition suit. Pom. Eq. Jur. § 1388; Bisp. Pr. Eq. § 489; Obert v. Obert, 12 N. J. Eq. (1 Beas.) 423; Read v. Huff, 40 N. J. Eq. (13 Stew.) 229; Vreeland v. Vreeland, 49 N. J. Eq. (4 Dick.) 322; Slockbower v. Kanouse, 50 N. J. Eq. (5 Dick.) 481.

The charges of the bill respecting the tax sale and the acquisition of the rights acquired thereby by Anna M. Kant, if they sufficiently present any question of title, present one of an equitable nature, properly the subject of the jurisdiction of the court of equity. The question intended to be raised manifestly concerns the title to the lands. For if that title, as it existed in Nancy P. Woglom and Elizabeth Martin at the time of the sale for taxes, was devested and has come to Anna M. Kant, it is clear that complainant and the other heirs-atfiaw have no title to the lands. But if Anna M. Kant acquired the title by fraud, a court of equity may avoid the transaction, or may decree that the title acquired by her enured to the benefit of Nancy P. Woglom and Elizabeth Martin in their lifetime, and to their heirs-at-law since their decease. If either relief can be granted, it is obvious that the heirs-at-law may assert their title to the lands by descent and claim a partition thereof among them;

The question, in this aspect, is -an equitable one, and upon the settled doctrine of the cases cited it may properly be raised in a case in which partition is also sought. ,

But the contention of the demurrants that the bill is lacking in equity is more formidable. The argument is that upon the statements of the bill the title of Elizabeth Martin and Nancy P. Woglom was devested in their lifetime by the tax sale, and that their heirs-at-law acquired no title by descent, and that unless by further statements a case is made for equitable relief, there can be no decree avoiding the tax title or declaring that Anna M. Kant holds the same for the benefit of the heirs-at-law.

In support of the bill it is first claimed that the acquisition by Anna M. Kant of tire tax title to the lands was the acquisition of one who was charged with a duty toward the prospective heirs-at-law of the then owners, and that, being thus charged, her purchase enured to the benefit of all those heirs-at-law.

Where there is a title'to lands in joint tenancy or in common it is undoubtedly true that the acquisition of a tax claim against the lands by one of the parties in interest will enure to the benefit of all interested upon their contributing tlicir portion of the burden.

But in this case the sale of the lands for taxes and the purchase by Seaman from the city and the conveyance by Seaman to Anna M. Kant all took place during the lifetime of Nancy P. Woglom and Elizabeth Martin. The}' alone had any interest in the lands, and they alone had any right to redeem them from the tax sale. Anna M. Kant had no interest in the lands, except what she acquired by her conveyance from Seaman. Neither the complainant nor the other parties had any interest. That she and they, may have expected to be the heirs of Nancy P. Woglom and Elizabeth Martin, upon their respective deaths, intestate, created no- relation between them that charged any one of them with any duty toward the others. The bill, so far as it depends upon a suggested relation between the expectant heirs during the lifetime of the owners, presents no case for relief.

But, in behalf of complainant it is further urged that the bill, by apt and sufficient statemlents, discloses such fraudulent conduct on the part of Anna M. Kant, directed to the then owners of said lands, as would justify them, if now alive, in avoiding the tax title acquired by her, or subjecting it in her hands, to redemption. If Nancy P. Woglom and Elizabeth Martin were now living and could obtain such relief, I think their heirs-at-law may assert their right to such relief.

It is proper to observe that the statements of the bill are vague and lacking in certainty. Upon its allegations, and in the absence of any contradictory statements, it must be inferred that there was a legal and effective imposition of taxes upon the lands in question, for which the law permitted a sale thereof, and that the sale alleged was properly made, and that the title was properly acquired by one of the officers of the city, and for the use and protection of the city. The law permits a title thus acquired to be assigned to a purchaser from the city, and permits the city or its assignee to cut off the rights of owners by notice to redeem and the failure of the owners to redeem.

It thus appears that the lands and rights of the two owners therein were subjected to taxes and to a sale therefor, and that upon the sale the title was acquired by or for the city. For like reasons it must be inferred that notice to redeem was given to the owners and that they failed to redeem.

The question thereon is whether the bill discloses facts which, if established by proof, will support the charge against Anna M. Ivant of fraudulently acquiring the city’s title by collusion wilh Seaman and by the medium of the city’s transfer to him and his transfer to her. A general charge of fraud is not sufficient, but the facts constituting the fraud must be set forth. Small v. Boudinot, 9 N. J. Eq. (1 Stock.) 381; Rorback v. Dorsheimer, 25 N. J. Eq. (10 C. E. Gr.) 516; Stover v. Reading, 29 N. J. Eq. (2 Stew.) 152; Bergen v. Porpoise Fishing Co., 42 N. J. Eq. (15 Stew.) 397; Smith v. Wood, 42 N. J. Eq. (15 Stew.) 563; S. C., 44 N. J. Eq. (17 Stew.) 603.

At the time of the tax sale Elizabeth Martin was the owner of an undivided one-sixth in fee, and was tenant for life of the undivided five-sixths thereof. Primarily she was bound to pay the taxes. Yot having paid them, any person might purchase at a tax sale without incurring a^ obligation to her, unless such conduct was fraudulent. It is not pretended that Anna M. Kant had any confidential relation with Elizabeth Martin. The only facts relied on are the relationship between them of aunt and niece, the advanced age of the owner and her infirmity. These facts might raise suspicion if the title to the lands in question had been procured from her. But no inference of fraud or unfairness can be raised as to a purchase from a city official of a tax title already acquired for the city by reason of any of the facts thus disclosed.

Nancy P. Woglom, at the time of the tax sale, was the owner in remainder in fee of the undivided five-sixths of the land. She therefore had an interest to pay the taxes in order to preserve her title. Is there a sustainable charge of fraud in the purchase by Anna M. Kant and Seaman of the title which the city acquired by the tax sale?

The only facts stated are the great age of Nancy P. Woglom, her infirmity; that she was the m|other of Anna M. Kant, and lived with her in the same family, and that the service upon her of the notice to redeem was in the presence of Anna M. Kant.

Upon the allegations on this subject, in the absence of any contradictory statement, I think another inference is here required, and that is that Anna M. Kant made úse of her own money in the purchase by Seaman from the city, and in the purchase by her from Seaman. If it had been alleged that she used the money of her mother, or that her mother had money to apply to tire payment of these taxes, and Anna concealed the necessity for their payment and then purchased the tax title, a different question would have been presented. If it had been disclosed that Anna M. Kant failed in any mode in a duty she owed her mother when the performance of such duty might be effective to preserve her mother’s title, another question would arise. But on the only facts, the existence of taxes, the' sale for taxes and the notice to redeem!, I perceive no justifiable inference of any duty devolving upon Anna M. Kant to use her own money to buy the title for her mother and to take and hold the title for her protection and the protection of her heirs-at-law. The question is not whether a daughter might be willing to use her own money to preserve her mother’s title for her and for her heirs-at-law, but whether any duty required such conduct. It seems to me that the bill discloses no such duty, and therefore that the charges of fraud are entirely ineffective.

If this is so, it is obvious that the whole fabric of the bill fails, for the rights of the complainant and the other parties as heirs-at-law of Elizabeth Martin, and Yancy P. Woglom depend upon establishing their title as not affected by tire tax sale.


author: MAGIE, CliAlSr OELLOR.

text:
    George H. Boggs v. Lylie Boggs et al.
    [Decided June 6th, 1905.]
    1. A direction in a will that testatorfs real estate remaining unsold at the death of his widow (to whom the use for life was given) should be sold, and its proceeds should be divided among his surviving children, which, if standing alone, would be construed as a gift to such of testator’s children as should survive his widow.—Hold, in view of other provisions in tlie will clearly indicating that portions of the children’s shares might be advanced to them during the widow’s life and that the shares should be transmissible to the survivors in case of the death of any child, to be properly construed as a gift to the children who survived testator of a vested interest, to come into possession upon the death of the widow.
    2. A further provision of the will whereby the share of any child was, at his death, to be “inherited” by the testator’s surviving children (subject to his widow’s use for life), construed to make the vested estate of each child liable to be devested by his death before the period of distribution.
    3. The original share of any child passed at his death during the widow’s life to the then surviving children, but the portions of shares accruing to any.child by such survivorship did not pass at his death to those surviving him, but to his representatives.
    On bill to construe the will of William J. Boggs, of which the following clauses are claimed to be in dispute:

      “Second. I hereby give and bequeath unto my beloved and affectionate wife, Catharine Ann, all my personal property and estate, and the use and income of all my real and leasehold estate during her natural life.

      "Third. I hereby direct that my real estate, leasehold estate and personal estate can be sold at any time, at the option of my aforesaid beloved wife and executrix, Catharine Ann, during her lifetime, and when sold, the proceeds of the real estate and leasehold estate shall be placed by niy said executrix, at interest, on bond and mortgage on real estate, for the benefit of all my surviving children on and after the decease of my beloved wife and executrix, Catharine Ann. My beloved wife and executrix may, at her option, release any portion of said proceeds of such bonds and mortgages for the use and benefit of any one or more of my children if she chooses to do so. Any such portion or portions shall be debited to and deducted from the portion or portions of any such child or children-.

      “Fourth. At the demise and death of my beloved wife and executrix, Catharine Ann, I direct that all of my real estate and leasehold estate that remained unsold at that time, together with any personal estate that may at the decease of my beloved wife, Catharine Ann, remain undisposed of or invested by her, shall be sold, and the proceeds thereof shared equally by my surviving children, share and share alike, except my children Emma I-L, George Henry and Walter J., whose respective shares shall be separately invested at interest on bond and mortgage on real estate during their natural lives, to the end that each child herein named in this ‘fourth’ article may receive their separate and respective interests or proceeds thereof for their separate maintenance and sole use and benefit, to the end that each child named in this ‘fourth’ article may have a separate income upon which each of the said named children can rely for support. From out of the proceeds of the sale of my real estate and leasehold estate, as herein named in this ‘fourth’ article, there shall be deducted one thousand dollars each for my surviving grandchildren, William E., Ivaty and Charles Sickels, children of my beloved deceased daughter, Mary E. Sickels, which several sums of one thousand dollars each must be placed at interest on bond and mortgage upon real estate, the interest on which is to be paid to each of said grandchildren from time to time as it may become due and collected; the principal sum and sums to be paid to each of my said grandchildren herein named in this ‘fourth’ article as they shall each respectively arrive at the age of twenty-one years; either of said grandchildren dying before arriving at the age of twenty-one years, then and in that case the survivor or survivors shall inherit the deceased grandchild or grandchildren’s portions, share and share alike.

      “Fifth. To enable article ‘fourth’ to be fully carried out, I hereby nominate and appoint my two sons, Joseph P. Boggs and Theodore P. Boggs, my executors to act and execute not only this ‘fourth’ article, but to act and execute this my last will and testament in every particular on and after the decease of my beloved wife and executrix, Catharine Ann, who is to act solely as my executrix during her lifetime.

      “Sixth. At the decease of either of my children, then the surviving children shall inherit the deceased child or children’s share, share and share alike, subject, however, to the income from my real and leasehold estate as specified in article ‘second,’- wherein I direct the devising of the whole of the income from my real estate and leasehold estate to my beloved wife, Catharine Ann, during her lifetime.

      “Seventh. I make the foregoing provision, in regard to my beloved wife, Catharine Ann, receiving the entire income from nay real and leasehold estate, knowing full well that she will never allow any of my children to suffer for the necessaries of life, and I also make the foregoing distinction in reference to three of my children, as herein bequeathed and named in article ‘fourth,’ from duly considered and present motives ; that in reference to my beloved daughter, Emma H., I also bequeath at her own request and approval, to the end that she may have during her lifetime the means of support beyond any contingency, and in reference to my sons, Geoi-ge H. and Walter J., each of whom have my affection, I make the same provision for them, after full consideration and from the best of motives, in the full belief that they are incapable from their natural dispositions of being able to manage their respective share or shares so as to have an income therefrom for each of their support during their natural lives.

      “Eighth. My children named in article ‘fourth,’ I have, upon more mature reflection, decided that each of said named children in the aforesaid article ‘fourth,’ shall receive their respective share or shares only upon the following conditions, namely, Emma H., upon becoming a widow; George H. and Walter J., upon becoming married and settled in -some legitimate and prosperous business; all subject, however, to my beloved wife, Catharine Ann, having the full and entire use, benefit and income from all my real estate and leasehold estate during her natural life as my widow.”

      Messrs. Moore & Whiteheadfor the complainant.

      Mr. William F. Gaston, for the defendant.
   MAGIE, CliAlSr OELLOR.

The complainant in this case is the substituted administrator with the will annexed of William J. Boggs, who was a resident of the State of Few York, and died there in 1812, leaving a last will and testament, which was probated in that state and an exemplified copy of which has been duly filed in this state. The complainant represents that there is real estate of decedent in New Jersey which must now be sold under the direction of the fourth clause of said will, and which he, as administrator with the will annexed (appointed because of the death of the two executors named in the fifth clause thereof), must sell, and the proceeds arising from which sale he must distribute. How that distribution is to be made he represents to be questioned.

On his part, he insists that under the terms of the will applied to the facts, he is entitled to the whole of such proceeds. The parties defendant to the bill are those who represent children of the testator other - than complainant, who is the only surviving child. The bill charges that they contest the claim of the complainant to the whole of the proceeds of the sale, and claim the right to some portion thereof.

The substituted administrator is, under this will and the statutes conferring power upon such administrators, empowered to sell said lands. P. L. 1883 p. 395; 2 Gen. Stat. 1429; Varick v. Smith, 67 N. J. Eq. 1.

One of the defendants appears and has answered the bill admitting the facts therein stated, but contesting the claim of the complainant, and submitting -to the jurisdiction of the court the question of the persons to whom the testator’s estate is to be distributed. Some of the defendants are infants, and are brought into the cause by a guardian ad litem. Testimony as to the relationship of the complainant and defendants to the testator, and the death of some of testator’s children and widow, and the times of their respective deaths, has been taken.

The complainant, wbm is to distribute the fund arising from the sale of the testator’s real estate now remaining unsold, seeks the direction of the court, and thereby properly raises a question involving the construction of the will of his testator. Hoagland v. Cooper, 65 N. J. Eq. (20 Dick.) 407.

It appears by the proofs that the widow of the deceased, to whom the use and income of all testator’s real estate was given for her natural life, has died. Thereupon by the express provisions of the fourth clause of the will the unsold real estate must be sold. To whom are the proceeds of sale to be paid bjr the administrator who is to carry- out and perform this will? The language in which the testator expresses his intent in this respect is somewhat involved. By the fourth clause he directs that, at the death of his wife, all his real estate then remaining unsold shall be sold and the “proceeds thereof shared equally by my surviving children, share and share alike.”

If this clause stood alone and unexplained by other clauses of the will, it seems to admit of no doubt that the testator intended that those who should share the proceeds should be his children who survived his widow. Such was the construction given to a similar clause in Seddel v. Wills, 20 N. J. Law (Spenc.) 223. See, also, Brooks v. Kip, 54 N. J. Eq. (9 Dick.) 462; S. C., 55 N. J. Eq. (10 Dick.) 590. But, however clearly the testator’s intent is disclosed by the clause when read by itself, yet if, from other clauses, a different intent is disclosed, not inconsistent with its language, a construction must be given which will carry out his intent.

When the whole will is read, I think it plainly indicates that the testator’s intent was to distribute the fund disposed of by the fourth clause among the children that survived him, and not those merely that survived the life beneficiary. Thus in the third clause, after giving power to his widow, who was also his executrix, to sell real estate and invest the proceeds in bonds and mortgages, and declaring that such investment was to be for the benefit of all his surviving children on and after the decease of his wife, he authorized his wife to “release any portion of said proceeds of such bonds and mortgages for the use and benefit of any one or more of my children/’ and then provides that any such portion shall be debited to and deducted from the portion of such child. Then, by the sixth clause, the testator provides that at the death of either of his children the surviving children shall inherit the deceased child’s share, subject to the provision of a life use to his wife.

Erom these clauses road together it is clear, in my judgment, that the testator intended by the provisions of the fourth clause that, subject to the use by his wife for life, his estate thereby disposed of should go to and be vested in his children who survived him, but to corns into possession only at the death of his wife, except as to such portions of the proceeds of any sale of real estate made by her which she may have advanced to any child.

if the construction of the fourth clause of this will had led to the conclusion that the testator intended to benefit only such of his children as survived his wife, it is obvious that the complainant’s claim would be made out, because the proofs show that he, at the death of his mother, was the sole surviving child. But although the true construction of that clause, when road with the rest of the will, is otherwise, yet complainant’s claim raises a question thereunder which is the question mainly argued.

This claim is made under the provisions of the sixth clause of the will, which provides that, at the decease of any of the children of testator “the surviving children shall inherit the deceased child or children’s share.” The claim is that this clause limits and restricts the interest which the children of testator acquired by the will, and that their respective shares, which were, as before stated, vested in them at testator’s death subject to the life interest of the widow, Avere rendered subject to be devested by tire death of any of them during the life of the widow, in which event the share of that child is, in the language of the will, “inherited” by the surviving children.

In my judgment there is no doubt as to the intent of the testator in this clause. He thereby provided that, upon the death of any of his children during the life of his widow, the share which would have been payable to him at her death (including so much only as had not been advanced and debited to him under the provision of the third clause to that effect) should go to testator’s then surviving children.

While this is perfectly obvious with respect to the share of the child who first died, a question, however, arises as to the effect of this clause upon the shares of tire children who subsequently died during the lifetime of the widow. That is the question presented by the claim on the part of the defendants. When the second child died the share which he took originally under this clause undoubtedly passed to the children who then survived. But the child who secondly died had before acquired a fractional part of the share of the child wlm first died. Did that fractional part go to the surviving children or to the representatives of the child secondly dying? In the language of the books and cases on this subject, did survivorship include not only the original shares but the accrued shares? This question has been presented in many cases and has received various solutions.

The applicable-rule, in my judgment, is that stated by Mr. Jarman. 3 Jarm. Wills (R. & T. ed.) 560 et seq. Briefly expressed it is, that clauses disposing of shares of legatees and devisees dying before a given period, do not, without positive and distinct indication of intention, extend to shares accruing thereunder, but that if the intention is manifested that the entire subject of disposition shall remain in mass until the period of distribution, and then be distributed among one and the same class of objects, then the accruing shares will be carried over to those objects, together with the original shares: This rule is supported by many pertinent cases in the English courts, cited by Mr. Jarman in its support, and is, in my judgment, in accord with reason. The opinion of Chief-Justice Iiornblower in the supreme court in Seddel v. Wills, ubi supra, recognizes and applies the principle.

If, in the true construction of this will, it had been found that the testator intended that the fund in question should remain intact until the death of his widow • and then be distributed in mass to those of his children who survived, doubtless the so-called accruing shares would pass with the original shares.

But the testator’s intention has not been found to be such as would produce that result, but rather that he designed to separate the children’s respective interests, which notably appears from the provisions permitting the widow to advance to a child upon his share, which advance was to be debited to 'such child, and thereby diminish the amount to be distributed to him at the death of the widow.

It follows that complainant, the sole survivor of the children, is entitled to his original share of the fund to be distributed and to the original share of the child who last died leaving complainant sole survivor.

But original shares of the children wlm successively died before the last passed to those surviving at the death of each. Complainant is entitled to such portions thereof as thus accrued to him.

Other portions of such original shares, which passed to surviving children other than complainant, became their absolute propertjr, and were no longer subject to the survivorship provisions of the will. As accrued shares they passed to their representatives and must be accounted for to them.

It remains to consider whether the conclusions reached ought to be modified with respect to the shares of certain of the children, in view of the curious provisions of the will. By the fourth clause testator, in declaring that all his surviving children shall share equally in his estate, excepts three of them by name. One of them is complainant; the others died during the life of the widow. But I think it obvious that what is contained in this clause was not intended to diminish the interest of those two deceased children in testator’s estate. Testator explains his purpose in directing their respective shares to be invested during their lifetime and the interest thereon to be paid to them. The clause must be construed as not diminishing their interest in the estate, but only restricting the use'of it for life. The shares therefore of the two who have died passed under the survivorship provision. What disposition is to be made of the share of complainant? By this clause it is to be invested for complainant for life and he can take only the interest thereon.

Before testator completed 'his will, he felt bound to elaborately explain the reason for the exceptional treatment of the three children in question, which he did in the seventh clause. Then in the eighth clause he modifies the provisions of the fourth clause by a direction that each of them should receive his respective share under specified circumstances. The conditions on which complainant was declared entitled to receive his share were thus expressed, “upon becoming married and settled in some legitimate and prosperous business.” Complainant’s bill states that he has never married, and that he is not now engaged in any business.

Complainant is represented to be of mature age and settled good habits, and it is urged that the limitation upon his use of his share should not now bind him. But the court has not power to construe testator’s will so as to eliminate therefrom a clearly expressed intention. By the fourth and eighth clauses he expressed an intent to limit the use of complainant’s share unless certain conditions existed. As they do not exist, the limitation is in force and must be followed.

A decree expressing these conclusions will be made.


author: Magee, Chancellok.

text:
    William B. Varick, administrator and trustee, and others, v. Ethel V. Smith.
    [Decided June 26th, 1905.]
    1. Testatrix gave her residuary estate to trustees, in trust, to divide into five equal shares, and to pay over one of the shares to each of her brothers, and to hold and manage one of the remaining shares for each of her three sisters, and to pay over to them the rents and profits thereof, with power, under certain contingencies, to convey the real estate, if any, to different persons.—Held, that the trustees had power to convert the real estate into money for the purpose of performing the trusts imposed on them.
    2. Testatrix devised and bequeathed her residuary estate to trustees, in trust, to divide the same into five equal shares, and to pay over one of the shares to each of her brothers, if living, but if any should have died, his issue should take the share which his parent would have been entitled to if living.—Held, that on the death of one of the brothers leaving issue during the life of the testatrix, the issue were entitled to his share.
    3. On the death of one of the brothers without issue during the life of the testatrix, his share lapsed and a trust resulted in favor of the heirs-at-law and next of kin of testatrix.
    4. Where a beneficiary in a will giving property to a trustee for beneficiaries for life, and on their death to their children as they should appoint, and in default of appointment, to persons designated, is alive, the court will not give the trustee direction as to his duty in case she should die without making the appointment authorized.
    5. Testatrix gave her residuary estate to trustees, in trust, to hold three shares for her three sisters. Bach share was to be invested and the rents and profits paid over to the sister for whom it was set apart, for her life, and on her death to be paid to her children as she should appoint. In default of any appointment, the children were to take the share equally, and in case there were no children, the share was given to the sister’s next of kin. Two of the sisters predeceased the testatrix.— Held, that the shares to them did not lapse, as testatrix had provided against a lapse by the direction that the shares should go to such sisters’ next of kin.
    G. One of the sisters died before the death of testatrix, leaving two children and a grandchild. The grandchild was the daughter of a son who died before his mother. The amendment to the statute of wills approved March 29th, 1S87, was applicable to the gift in the will of testatrix, as she died subsequent to its enactment, although the will was executed prior thereto. By the provisions of that act the grandchild took an interest in the share given to her grandmother.
    On bill for directions to a trustee upon the construction of the residuary clause of a will, expressed in the following words:

      “Fourth. All the rest, residue and remainder of my estate of which I may die seized or possessed, of whatsoever kind and wheresoever situated, I do hereby give, devise and bequeath to my executors hereinafter named:
    “In Trust : to divide into five equal shares, and to pay over one of the said shares to each of my said brothers, Francis W. Raymond and Henry A. Raymond, if living, but if either shall have died, then his issue to take the share which his, her or their parent would be entitled to if living, and to hold, invest and manage one of said remaining three shares for each of my said three sisters, Mary Louisa Raymond, Catherine J. Smith and Emma E. Langwith, and to invest their said respective shares in the securities allowed by law only, and to receive the rents, income and profits thereof, and to pay over the same quarterly to my said sisters, respectively, for each of their sole and separate uses and benefit during their natural lives, respectively, and free from the control or debts or engagements of either of their present or any future husbands either of them may marry, and after death of either of them, then to pay the principal of the personal estate and convey the real estate, if any, to and amongst her child or children, in such shares or proportions as she shall, by deed or by her last will and testament, direct and appoint, and in default of issue, my said sisters to have the power, by appointment, to leave their respective shares to such persons as they shall think proper; and in default of any such appointment, said respective shares to go to their said respective children, in equal shares, upon attaining the age of twenty-one years, respectively, with power to said trustees to apply the income and such part of the principal as they in their discretion shall think proper towards the education, maintenance and support of such child or children during his, her or their minority, and in case there shall not be any child who shall attain the age of twenty-one years, and in default of issue and any appointment, then the said share of either one of my said sisters so dying shall go to her next of kin, as provided by law in any state where I may be residing' at the time o'f my death, excepting, however, that it bo in the same manner as if she had died unmarried.

      “Lastly. I appoint as executors and trustees under this my will, with full power to execute all the provisions thereof, my brother, Francis W. Raymond, of the City of New York, and my friend, Henry W. Johns, of the City of Brooklyn, in the State of New York; and in the event of the death, disability or refusal of either of them to qualify or act, then I appoint in his place Thomson Kingsford, of Oswego, in the State of New York.”

      Mr. Isaac 8. Taylor, -for the complainant.

      Messrs. Collins & Corbin, for the defendant.
   Magee, Chancellok.

The bill originally filed in this cause was presented by William B. Varick, administrator with the will annexed of Augusta A. Thompson, who died July 15th, 1900, a resident of this state. Varick was appointed such administrator because of the death of two of the executors named in the will, who predeceased the testatrix, and the renunciation of the third executor. Associated with Varick as complainant were all the parties in interest under the clause of the will contained in the prefatory statement who are now in existence, unless Ethel V. Smith, the defendant, has such an interest. She is an infant and appears by a guardian ad litem.

The purpose of the bill was to obtain a construction of the will and a direction to the administrator with the will annexed respecting his duty.

The matter was heretofore brought to the attention of the court, and the conclusion then reached therein is expressed in the opinion reported in 67 N. J. Eq. 1. The conclusion was that the administrator did not possess power to deal with the residuary estate, either by sale of the real estate or by division thereof under the will, and that a trustee was necessary to carry out the testatrix's disposition of the residuum. Thereafter application was made for the appointment of a trustee.

The bill stated that Thomson Kingsford, named in the last clause of the will as executor and trustee in case of the death of the executors and trustees previously named in that capacity, had renounced his executorship and trusteeship. A trustee cannot be compelled to accept a trust, and may decline and refuse to act. Perry on Trusts § 267 et seq.

The statements of the bill disclose a disclaimer on the part of Kingsford. As the answer of the sole defendant made no contest respecting those statements, it was deemed proper to appoint a trustee, and in the presence of' counsel for defendant an order was made appointing Varick, the administrator with the will annexed, as trustee, which appointment he accepted. Thereafter the matter was again brought to the attention of the- court by the presentation, of briefs.

"Upon taking the case up for consideration it was discovered that, although Varick has been appointed trustee under the will, he has not amended his bill or sought the relief which it was before intimated he might be entitled to in that capacity. But as he had the status of trustee, and may amend his bill so as to claim such relief, I have concluded to consider the questions presented and express my views as if the amendment had been made.

The first question raised respects the power conferred by the will in regard to real estate of which the testatrix died seized and which made up part of her residuary estate. The question is whether the trustees under the will were endowed with power to sell the real estate of testatrix for the purpose of making a division among the parties interested in the trust. If they would have such power, the substituted trustee possesses it.

On this question no contest is made, and I think it obvious that the clause of the will conferring power upon the trustees impliedly includes power to sell real estate for the purpose of carrying out the trust, if the sale is reasonably required for that purpose.

The only doubt raised upon this construction arises from an expression in the clause creating the trust, directing the trustees “to receive the rents, profits and income” of the fund, and the further provision that under certain contingencies the trustees are to pay the principal of the personal estate, and convey the real estate, “if anj” to different persons. But these phrases are not inconsistent with the creation of a power to sell real estate. They may well indicate that the testatrix had in mind the possible happening of the contingencies upon which such conveyances were directed before the trustees had sold and converted all the real .estate, and in that event the power was given them to convey real estate not previously converted. The use of the words “if any” clearly indicates that testatrix assumed that there might be none and strengthens the indication of power to convert. For is this inconsistent with tire fact that the mind of the testatrix seems also to have contemplated the possibility that the trustees might malte a division of the'real estate into the different shares directed without sale. In such case the trustee would receive the income therefrom until the happening of the contingencies which required another disposition of it.

The result is that, in my judgment, the trustee'has power to convert the real estate into money for the purpose of performing the trusts imposed upon him.

The next question upon which the direction of the court is sought relates to the division of the residuary fund by the trustee under the powers conferred by the will.

The primary duty of' the trustees under the clause in question was to divide the residuum into five equal shares. With respect to two of the shares the trustee’s duty to distribute arose upon the conditions existing at the testatrix’s death.

One of these shares was directed to be paid over to testatrix’s brother, Francis W. Raymond, if living, but, if not living, then to his issue. The proofs show that Francis W. Raymond predeceased the testatrix, and died leaving issue wlm are parties complainant. It admits of no doubt that such issue are entitled to one of the shares.

Another of the five shares was directed to be paid to testatrix’s brother, Henry A. Raymond, if then living, but, if not living, then to his issue. The proofs disclose that Henry A. Raymond predeceased the testatrix, but died without issue, never having married. Fo further provision having been made for the disposition of the share, and the disposition intended being impossible, the trust as to that share has failed by lapse, and a trust has resulted in favor of the heirs-at-law and next of kin of the testatrix. Perry on Trusts § 160. The present trustee must therefore account for and pay over this share accordingly.

The disposition of the remaining shares was different. The trustees were directed to hold them in trust, one share for each of testatrix’s three sisters, viz., Mary Louisa Raymond, Catharine J. Smith and Emma E. Langwith. Each of said shares was to be invested, and the rents, profits and income thereof paid over to the sister for whom it should be set apart by the trustees for her natural life, and upon her death such share was to be paid to her child or children in such shares as she should by deed or will appoint. In default of issue such sister was to have the power to appoint such share to other persons, and in default of any appointment among the children of such sister they were to take the same in equal shares upon attaining the age of twenty-one years, and in case no such child attained that age, and in default of issue and any appointment, then such share should go to such sister’s next of kin.

Emma E. Langwith, one of such ceskds que irustenl, survived the testatrix, and is yet living. She is one of the parties complainant to this bill. In respect to her share, direction is sought as to the duty of the trustee in case she should die without making the appointment which she is authorized to make among her children, or, in case of their death, to other .persons. But,, obviously, this direction cannot now be given, because she is now living, and there is no present contingency which requires any further construction of the clause, or any direction to the trustee in respect thereto.

Testatrix’s other sisters, viz., Mary L. Raymond and Catharine J. Smith, predeceased the testatrix, and the questions principally raised are with respect to the duty of the trustee as to the shares which would otherwise have been set apart for them.

The first question, in my judgment, is, whether it having-become impossible to dispose of these shares for the life use of the primary beneficiaries, there is a failure of the trust by lapse, as we have found to be the case with respect to the share intended for testatrix’s brother, Henry. By the careful provisions conferring- on the primary beneficiaries a power of appointment over each share, it seems clear that the testatrix contemplated their surviving her. But when she provides for the contingency of failure to appoint and of failure of issue, and upon such contingencies co-existing directs the share to go to the next of kin of the sister for whose life use the share should be set apart if surviving her, in my judgment, testatrix evinced a clear intent not to permit a lapse of such share, and she has provided against such lapse by the direction that it should go to such sister’s next of kin. It appears that Mary L. Raymond died leaving no issue. The share directed to be set apart for her will therefore go to her next of kin, all of whom are parties to this bill. The trustee will properly account for and pay over one share to them.

Another question, however) is raised respecting the share of which Catharine J. Smith, if she had survived testatrix, would have had the life use. It appears that she died leaving issue, viz., two children (who still survive and are parties complainant to this bill) and a grandchild, the daughter of her son Chauncey, who died before his mother. This grandchild is the defendant, Ethel Y. Smith, who is Chauneey’s sole heir-at-law and next of kin.

I have above construed the clause in question as passing a share to the next of kin of one of the primary beneficiaries who predeceased testatrix without leaving issue. A like reasoning leads to the conclusion that a share which one of the beneficiaries would have had the life use of if she had survived testatrix will pass to her children if she predeceased testatrix leaving children. Catharine J. Smith died leaving children, and the controverted point in respect to the share which would have been set apart for her life use is whether it is to go to her two children who survive her, or whether her grandchild, daughter of her son who did not survive her, is to take a part thereof.

The contention on the part of the interested complainants is that Ethel Y. Smith takes no interest in that share. The contention on the part of Ethel Y. Smith, the defendant, is that she is entitled to the one-third part of that share. This contention is not based upon the meaning to be attributed to the word “children” in this clause in its natural and usual sense. It is not contended that it naturally includes a grandchild or a remote descendant. But the claim of Ethel is based on the provisions of the supplement to the Wills act, approved March 29th, 1887. P. L. 1887 p. 63; 3 Gen. Stat. p. 3763. By its provisions, legacies and devises in any will made to a descendant of the testator, or to a brother or sister of testator, or to a descendant of a brother or sister who predeceased the testator, do not lapse if the legatee or devisee leaves a child ox children or descendants of such. If the share in question passed at the death of Catharine J. Smith, by the terms of this clause, to her •children, and if this act is applicable to this will, obviously Ethel Y. Smith is entitled to share with the surviving children of Catharine J. Smith.

The contention of complainants is that this act is inapplicable to the testatrix’s will now before us, because that will was executed, according to its date, on October 37th, 1879, and does not appear to have ever been republished.

The argument is that, although the will took effect at the death of the testatrix in 1900, the legislation of 1887 was ineffective in respect to it because the will was made eight years before such legislation came into existence.

In my judgment this contention cannot be sustained. The object of this legislation was to regulate the construction of wills. Theretofore, when a will giving an estate to any person came into existence by the death of the testator, and the person to whom the legacy was given or the devise made had previously died, the legacy or devise was held to have wholly lapsed. The intended regulation was to provide that nn such lapse should be raised upon the language of the will if the person who was the proposed beneficiary was a descendant of testator, or a brother or sister or descendant of such, and had predeceased the testator, leaving a child or children, or the descendants of such, but the will should be construed to pass the legacy or devise to such child or children. Manifestly this construction is to be given to the will at the time it becomes the will of deceased, that is to say, at death. That the statute declares that this shall be applicable to bequests and devises that may be made does not, in my judgment, discountenance this construction. When testatrix -made her will in 1879 her legacies and devises were ambulatory in character, like all other provisions in wills. She had a right at any time to destroy the will, to alter her testamentary dispositions, and to make new bequests and devises. It did not pass any legacy or devise until the death of the testatrix with the will unrevoked, and the will, though executed previous to this legislation, came into effect at the death of the testatrix after the legislation had taken effect and is subject thereto, and legacies and devises therein contained are to be construed according to its provisions.

It results that the claim of Ethel Y. Smith to a portion of the share which should have been the share of her grandmother, Catharine J. Smith, must be upheld. Although this question -has never been directly presented upon the statute, other legislation off similar purpose has been construed in accord with the view above expressed. In the case of Condict v. King, 13 N. J. Eq. (2 Beas.) 375, a construction was given by Chancellor Green to the provisions of a will in accordance with the requirements of an act passed after its execution, although it produced an effect contrary to the intention of the testator as manifested by the language of the will as construed by our courts at the time of its execution. This statute, now under consideration^ has been before this court in Murphy v. McKeon, 53 N. J. Eq. (8 Dick.) 406, and before the court of errors and appeals in Reichle v. Steitz, 64 N. J. Eq. (19 Dick.) 789, and although this precise question was not raised, there was no indication of opinion counter to that which I have expressed.

A decree will be made in conformity with this opinion.


author: Magie, Chancellor.

text:
    Ettie Corson v. Charles Corson.
    [Decided July 3d, 1905.]
    1. Petitioner and defendant were married, and lived together in a hotel for two or three days, when they separated, and she went to her own home and he to his former residence. The evidence justified the conclusion that the separation was voluntary, and that they had not made a provision for or expected to establish a matrimonial abode. Afterward petitioner met defendant and demanded that he should support her or make a home for her.—Held, that, in the absence of proof of his ability, his refusal would not establish willful desertion.
    2. At the demand for support, the defendant uttered threats and did acts of violence toward petitioner.—Held, that his misconduct in this respect did not make out willful desertion.
    On bill for divorce.

      Mr. Joseph Beck Tyler, for the complainant.
   Magie, Chancellor.

This is an undefended divorce case, and the master to whom it was referred has found that the proofs establish a willful, continued and obstinate desertion of the complainant by the defendant.

I find myself unable to discover sufficient proof to that effect.

This is a case of the hasty marriage .of a mere child, who admits that she misrepresented her age to the clergyman who performed the ceremony. It seems manifest that there was no provision for or expectation of establishing a marital home. She and the husband thus acquired went to a hotel for two or three days and then separated, she going to her own home and he to his former residence. She states that thereafter they met at times at the same hotel, but such meetings soon ceased. Upon this evidence, and there is no other, the inference is that the separation was voluntary.

Was this separation turned into desertion by the proofs? If so, it is by the evidence of complainant and her brother as to what occurred when she met her husband in a public street in the month of June, 1888. Both agree that the complainant then demanded of her husband whether he would support her or make a home for her. While she did not expressly demand a return of the marital relation, such a demand was, perhaps, implied, and, if so, a refusal would be indicative of an intent to desert if the husband was able to do what he was requested to do. Of this there is absolutely no proof.

Complainant’s solicitor, who has been heard as to the confirmation of the master’s report, insists that the violence and threats of the husband on that occasion operate to establish a constructive desertion, but complainant was not then living with defendant. If she had been, his violence and threats might have justified her in leaving him, and the inference of a desertion by him. But the parties were then living apart, and complainant was not driven from her marital home or excluded therefrom.

Yiolence and threats may characterize the defendant’s conduct if, when he made them, he was able to provide for a resumption 'of the marital relation and make a home for his wife, of which no proof is made.

The result is that the report cannot be confirmed, and the bill must be dismissed.


author: Magie, Chancellob.

text:
    Lucy H. Holzer v. Marion G. Thomas et al.
    [Argued April llth, 1905.
    Decided July 3d, 1905.]
    1. A bill by a beneficiary under a foreign will, against the executrix and trustee thereunder, alleging that the latter has not accounted for the estate in the foreign jurisdiction, but has removed the assets to this state and used them (with other moneys) in the purchase of real estate which she caused to be conveyed to her children, they having knowledge of such use of the assets, and seeking an accounting of the assets, and a charge upon such real estate, is not open to demurrer.
    2. The bill further'alleging that the same defendant was also executrix and trustee under a will of a resident of this state (in which complainant was interested), and had never properly accounted for the assets thereof, but had mingled them with the assets derived from the foreign estate above referred to, and used them in the purchase of said real estate, and seeking an accounting and relief as to such real estate—Held, not open to a demurrer for misjoinder of causes of action, the two separate accountings sought being essential and necessary to the main relief prayed against the real estate thus acquired from the mingled assets.

      3. While unexplained laches appearing on the face of the bill is good ground of demurrer—Held, that the allegations of this bill, if proved, will explain the long delay apparent on the face of the bill.
    On demurrer to bill.

      Mr. Hugh K. Gaston, for the demurrant.

      Mr. William II. Carey, contra.

   Magie, Chancellob.

The sole defendants in this ease are Marion G. Thomas, Marion L. Thomas and Frederick G. Thomas, her children, and each of the defendants has filed a demurrer to the bill. The demurrer of Marion L. Thomas and of Frederick G. Thomas present the same objections. The demurrer of Marion G. Thomas includes those objections and presents others. The case, therefore, can be disposed of by considering all the objections presented in the demurrer last referred to.

Complainant’s bill sets out, first, that Henry B. Gates, the father of complainant, died a resident of the State of New York on April 17th, 1873, when complainant was about six years of age, leaving a last will and testament, which was probated in the State of New York. By said will Marion G. Thomas, who was the sister of the testator, was appointed executrix and guardian of the complainant, and general legatee of the residuum of the estate, which was directed to be sold and used for the benefit of testator’s daughter, the complainant.

The bill states that complainant’s father died leaving property, and excuses her inability to describe the property because of her tender age at the time of his death, and the confidence that she had in her aunt and guardian, but she asserts that Marion G. Thomas, the executrix, never filed an inventory of the estate of Henry B. Gates, nor made an accounting of it, nor of her guardianship of complainant.

Complainant thereupon asserts her right to all the residue of her father’s estate that had not been used for her benefit.

Complainant, secondly, proceeds to declare that Joshua B. Gates, her grandfather, died, domiciled in the county of Somerset, on May 26th, 1877, leaving a last will and testament, which was admitted to probate in that county August 17th,' 1877. By that will the testator appointed his daughter, Marion G. Thomas, his sole executrix, and gave and devised to her all the residuum of his estate, in trust, with power of sale and direction to invest the proceeds thereof, and divide the income arising therefrom during her life among herself and her children, Marion L. Thomas and Frederick G. Thomas, and the complainant, and, upon the decease of Marion G. Thomas, to divide the income among all the testator's grandchildren then living. The will further provided that upon the decease of complainant her share was to pass to her surviving children, but if she left none surviving, then it was to' pass to the children of Marion G. Thomas. It would seem thereby that the complainant has a present right to a portion of the income of the proceeds of testator’s property, with the prospect of an increased right at the death of Marion G. Thomas, if she survives her, and a possible interest exists for the benefit of any child or children that may be born to her.

The bill sets out that Joshua B. Gates died possessed of considerable personal property, and also seized of valuable real estate in the State of New York; that one parcel of the real estate in New York was sold upon the foreclosure of a pre-existing mortgage, but that a considerable amount of surplus was raised by the sale, which came to the hands of the executrix, Marion G. Thomas, and that the other portion of the real estate of testator in New York was so conveyed and transferred by the executrix, Marion G. Thomas, as to raise an inference that the proceeds of the sale of that land, to' a large amount, came to her hands, or that a person who afterwards purchased the lands at a foreclosure sale upon a pre-existing mortgage took and held the title for the benefit of the estate, and accounted to her for the rents and profits thereof until it was sold by him, and then accounted to her for the proceeds of his sale, amounting to a large sum of money.

The bill further states that on the 9th day of August, 1878, while complainant was still a minor, Marion G. Thomas filed an account as executrix of Joshua B. Gates in the Somerset county orphans court, and that her account was, passed and allowed by that court, but it is charged that such accounting failed to include all the personal property of the deceased, and did not include the proceeds of the sale of the real estate in Few York, as it ought to have done, and asserts that the order or decree allowing the account was of no effect, because there was no advertisement of the accounting, and that the allowance by the court was made on the very day on which the account was filed.

The bill then proceeds to state that Marion G. Thomas mingled the estates of Henry B. Gates and Joshua B. Gates together and made use thereof in the purchase of real estate in the county of Somerset, and procured the title to be taken to one tract in the name of Marion L. Thomas and to another tract in the name of Frederick G. Thomas, and that said Marion L. and Frederick G. Thom|as now hold these tracts, which are of considerable value. Complainant further charges that both Marion L. and Frederick G. Thomas- knew that their mother, Marion G. Thomas, had'mingled the assets of both estates, and had made use of them in the purchase of said real estate, and that they conspired with said Marion G. Thomas to conceal the same from the complainant.

Upon these charges the complainant prays that Marion G. Thomas may be required to account both as executrix of Henry B. Gates and as executrix of Joshua B. Gates; that upon such accounting a decree may be made fixing the balance due to complainant, or the amount in which she has an interest, and further, that by the decree there shall be imposed upon the real estate now standing in the names, of Marion L. Thomas and Frederick G. Thomas a lien for her protection.

The demurrer of Marion G. Thomas first claims that the bill misjoins causes of action.

It is obvious that if the relief sought by the complainant was a decree for the payment by Marion G. Thomas to complainant of what should appear to be due complainant upon an accounting of the estate of Henry B. Gates, and also- a decree for the payment of what should be due complainant on her present interest in the estate of Joshua B'. Gates, a case of misjoinder would be presented, although the accountings might be made in the same cause.

But this is not the purpose of the bill. The accountings are incidentally sought as appropriate to the relief really asked. That relief is to reach the assets of both estates, claimed to be mingled by connivance, and now existing in real estate within this jurisdiction. To this relief accountings in both estates are essential.

The demurrer of this defendant further questions eomjplainant’s right to require an accounting of the estate of her father, Henry B. Gates, on the ground that he died domiciled in a foreign state, and that this property is to be accounted for by his executrix in the courts of that state. Such, in general, is undoubtedly the law. Cocks v. Varney, 42 N. J. Eq. (15 Stew.) 514.

But this relief cannot be invoked if a foreign executrix or trustee has brought into this state portions or the whole of the assets which should be accounted for in the foreign state, and has invested them in property in this state and within the jurisdiction of this court. In such case this court may require an accounting of the assets for the purpose of reaching the relief sought, and may follow the assets and decree their disposition. Brownlee v. Lockwood, 20 N. J. Eq. (5 C. E. Gr.) 239; Allen v. Arkenburgh, 57 N. J. Eq. (12 Dick.) 440.

There is a difficulty which, at first, seemed to me somewhat formidable, and that is that the relief sought and obtainable by the complainant differs'in respect to the assets of the two estates. As to assets arising from the estate of Henry B. Gates, complainant seems to be entitled to their immediate possession. As to assets arising from the estate of Joshua B. Gates, she is entitled only to a share of the income arising therefrom for her life, with the prospective benefit of a share thereof to her children. In regard to the latter estate, she is entitled to be protected in her present right and to have protection for her prospective benefit. Reflection, however, has led me to conclude that the claim' for the protection of what complainant may show herself entitled to, although of diverse character, does not render this bill multifarious as misjoining causes of action. The real question underlying both matters is the real estate now owned by Marion L. and Frederick G-. Thomas. Tf that has been bought by money arising from both estates, the assets thus used may be followed into those lands, and complainant, in doing so, presents a case against the same defendants and must rely upon the same proofs. Although the question; if found in her favor, leads to a relief having two aspects, the bill is not thereby rendered multifarious. If the assets of both estates have been mingled and used in the purchase of these lands, complainant’s decree may fasten thereon her present interest and require security for her prospective interest in proportion to the amount of the purchase-money derived from each estate, and this relief will necessarily x-equire accountings in both estates.

The only debatable question that I discover arises upon the cause assigned to the effect that the bill discloses laches on the part of the complainant. Laches appearing by the bill may be taken advantage of by demurrer,, and if unexplained will be fatal. Van Houten v. Van Winkle, 46 N. J. Eq. (1 Dick.) 380.

The bill shows not only that Henry IB. Gates, whose estate complainant seeks to pursue, died more than thirty years ago, and that Joshua B. Gates, in whose estate complainant seeks an interest, died twenty-eight years ago, but that complainant has remained for sixteen years, since she became of age, without seeking any relief in respect to the matters she now presents. If this laches is unexplained these demurrers should be sustained.

When there is a legal and equitable remedy for the same cause of action, if the legal remedy is barred by lapse of time the equitable remedy will, in general, be also barred. Agens v. Agens, 50 N. J. Eq. (5 Dick.) 566; Partridge v. Wells, 30 N. J. Eq. (3 Stew.) 176; S. C., 31 N. J. Eq. (4 Stew.) 362. Where the remedy is necessarily to be sought in equity, while laches will be deemed a bar to the maintenance of the suit, the circumstances may so explain the delay as to deprive a defendant of that objectioix on demlurrer. Gutch v. Fosdick, 48 N. J. Eq. (3 Dick.) 353; Lundy v. Seymour, 55 N. J. Eq. (10 Dick.) 1. Eor is it possible to fix what length of time will be deemed to be laches, nor to define what circumstances will amount to a satisfactory explanation for a delay which, if unexplained, will be fatal to the bill.

But, upon reading this bill, I have come to the conclusion that the circumstances stated therein do not leave the apparent laches unexplained. Complainant was the niece of Marion G. Thomas. She was not only complainant’s near relative, but she had been made complainant’s guardian and trustee, under the father’s will and the will of the grandfather. Complainant states that her aunt told her that the most valuable part of her grandfather’s property, viz., one of the tracts of land in Yew York, which had been bought under a foreclosure, was held by the purchaser for the benefit of the estate and of complainant’s interest therein. Complainant further states that she has frequently demanded accountings from her guardian and trustee, and has never been refused, but has been continually promised such accountings. Whether complainant can make out these explanations by proof is not in question. Upon such allegations of admissions and promises by her who was complainant’s guardian during minority, and her trustee under both wills, being proved, I think laches would be explained.

It may further be observed that I discover no occasion to suppose that there has been any actual or potential loss of evidence to the defendants, or any inability of Marion G. Thomas to now make the accountings which she ought to have made, on account of the loss of time. Tynan v. Warren, 53 N. J. Eq. (8 Dick.) 313; Lutjen v. Lutjen, 64 N. J. Eq. (19 Dick.) 773.

Although with some hesitation, I have concluded {hat on the face of the bill complainant is not chargeable with unexplained 1 aches.

The result is that all the demurrers will lie overruled.


text:
    Joseph Edgar Edwards v. Elizabeth J. W. Edwards.
    [Decided July 3d, 1905.]
    1. Defendant, upon leaving her husband, left a letter to him disclosing that her leaving- was caused by difficulties between her and petitioner’s mother and the subsequent conduct of petitioner. The letter gave him permission to come and see her, and was expressed affectionately.—Held, that it was the husband’s duty, under those circumstances, to seek his wife and urge a reconciliation, and that the proof did not establish a willful desertion at the time she left.
    2. A subsequent letter from defendant to petitioner declared that she intended never to live with him again. This .would be proof of willful desertion, but will not support a decree, as the statutory period had not elapsed since the date of the letter when this petition was filed.
    3. The evidence held not to show that petitioner had performed his duty in respect to a reconciliation.
    On petition for divorce.

      Mr. William D. Wolfsheil, for the petitioner.
   Magie, Chancellor.

The master to whom this undefended divorce case was referred has reported that the proofs before him establish a willful desertion of petitioner by defendant on July 29th, 1901.

I am unable to discover sufficient evidence to support that conclusion.

On July 29th, 1901, the defendant left the house in which she and her husband had been living and thereafter did not return. When she left her husband was absent. In his testimony he admits that his wife and he had a quarrel on the night preceding that day, but he claimis that they had been reconciled. If the wife’s conduct in leaving indicates an intent to desert, the case of the petitioner will be made out.

Her intent at the time is indicated in two modes—first, by the testimony of a neighbor, who came to her house while she was preparing to leave, and to whom she stated that she was intending to leave, and second, by a letter which defendant sat down and wrote to her husband in the presence of the neighbor. This letter is more persuasive evidence than that elicited from the person present. I find it impossible to read it and resist the conviction that its writer did not intend to break up her home and life by removing from her husband's house. In it she declares that her husband loves his mother better than he loves her, and plainly indicates that there had been a serious quarrel between them, evidently respecting some difficulty with his mother. She says: “I do not like black looks as I have been getting, and you would not do it if you did not want me to go." And a fair inference is that in this, and perhaps in previous quarrels, his conduct was such that she assumed that he desired her to leave him. At all events,1 after signing herself thus: “I am as very [ever] your true and loving wife,” she adds: “Now, Ed., go and have a good time, as I will stay at home—but if you want to see me you can.”

From the tone of this letter, I think it clear, under the doctrine of our cases, that it was the duty of the husband to seek and urge a reconciliation with his wife, who thus left him holding out a hope that if he came to’ see her, matters might be mended. Petitioner did not perform this duty, but on the 2d of August published in the local newspaper a notice that his wife had left him and forbidding anyone to trust her on his account.

On the 3d of August defendant procured the insertion, in the same newspaper, below the notice of her husband^ of a paragraph stating that she had just cause for leaving him, and “if he wants the world to know, the reason, I will publish it if needed.”

The petitioner produces no evidence of any immediate or early attempt at reconciliation. He states in his deposition that he sent friends to her, but he does not disclose the names of the friends or produce them as witnesses. That evidence is wholly unavailing to establish his performance of his duty.

On the 21st oí September, 1901, petitioner received a letter from a lawyer threatening him with proceedings if he continued to “slur” his wife.

Thereafter the petitioner did nothing to procure a reconciliation with his wife until a period within a year prior to the filing of his petition. He then called upon the mother of the defendant, taking with him a friend, and demanding from the mother an interview with his wife or a reply to his request that she would live with him. This call was repeated, but during that period the defendant was away from home, engaged in the occupation of a nurse. Thereafter a letter, without date, the envelope of which is postmarked November 29th, 1904, was received from defendant, in which she wrote him that she had heard that he was inquiring for her and wanted to have a talk with her in regard to living together again. She excused herself for not meeting him on account of her being compelled by her work as a nurse to leave her mother’s house, where she had been making a visit and had learned of his wish. She then added: “If you should care to write, direct to mama, she will forward it to me and I will answer when I write her my address.”

Petitioner did not avail himself of this opportunity held out by the wife. What further he did he does not disclose, but he produces a letter, without date, the envelope of which is postmarked January 19th, 1905, in which his wife stated that she had heard that he wished a decided answer whether she would live with him or not, and she adds: “I never intend to live with you again.”

This letter is proof of a desertion that is willful, but I fail to find that, prior to that letter, a reconciliation might not have been effected if the husband had done his duty in seeking it. But this leaves the petitioner unsuccessful, because the desertion thus proved has not continued for the statutory period.

The result is that the report cannot be confirmed and the petition must be dismissed.