text:
    Nathaniel Shipman et al., trustees, v. George R. Lord et al.
    [Filed September 25th, 1899.]
    1 Where a creditor who holds security for the payment of his debt has a ■settlement with his debtor, and the amount of the indebtedness is determined, and the debtor executes to the creditor promissory notes for the amount, and the creditor gives the debtor a receipt which recites that, in consideration of the notes and their payment, he thereby relinquishes and discharges all claim he has on him, the creditor does not release or surrender the security, as the security will not be considered surrendered when no payment is made until it clearly appears that such was the intention of the creditor.
    2. When an executor seeks to evade liability on a note executed by his decedent, a married woman, on the ground that it was given to secure another’s debt, the burden of proof is on him to show that it was so given.
    3. An assignment of an equitable, interest in land, made by a married woman to secure another’s debt, will be enforced to the extent of subjecting the land to the payment of the debt, as she cannot rescind her executed contract of suretyship.
    4. Where an executor wrongfully causes land to be conveyed to himself, when he should have had it conveyed to complainants as security for a debt owing to them, they can maintain a bill in equity against him to charge the land and have it sold to pay their debt.
    5. When a note owing at the time of the execution of an assignment of an equitable interest in real estate to secure an indebtedness owing by the assignor to the assignee is not mentioned in the agreement whereby such interest is assigned, it will be presumed that it was not intended to have the security include it.
    6. An executor under a will which gives him a power to sell personalty and a power to mortgage and sell realty has no power to pledge the estate to carry on a partnership, nor has he power to borrow money for the purpose of improving the real estate of his decedent’s estate.
    . 7. One seeking to charge a married woman’s estate for money loaned, and for which her husband personally executed evidence of indebtedness, on the ground that the loans were for the benefit of her estate, has the .burden of showing that the loans were so made.
    8. A cause of action barred by the statute of limitations cannot be enforced against a decedent’s estate.
    On final hearing.

      Mr. Edward A. Day, for the complainants.

      Messrs. B. T. & W. B. Stout and Mr. Allan L. McDermott, for the defendants.
   Stevens, V. C.

The bill is filed to charge the lands therein described with the payment of certain trust moneys alleged to have been lent by George M. Bartholomew to Mary E. Lord in her lifetime, and to George R. Lord as her executor after her death.

By an agreement dated March 17th, 1882, made between Frederick G. Burnham and Mary E. Lord, it was recited that Burnham was about to take a conveyance of a, tract of land containing about one hundred and eleven acres, situate in or near Asbury Park, in trust to sell and out of the proceeds to repay, first, the amount of cash paid therefor ($25,000); second, the amount paid for improving the same and making surveys and maps; third, the amount of.the mortgage ($50,000) given by Burnham to secure the residue of the purchase-money; fourth, any expenses and disbursements that might be incurred by the written consent of Burnham and George R. Lord, the husband of Mary; and fifth, to divide the remaining proceeds of sale into three equal shares, two of which should be given to Mary E. Lord and one to Burnham. There is a further stipulation that if the said Mary should prefer and should so notify Burn-ham in writing, Burnham, after payment of the above sums, would convey to Mary E. Lord two-thirds of the premises then remaining unsold, retaining one-third for himself.

Nine months after this agreement was made, to wit, on December 29th, 1882, Mary died, leaving a last will, by which she-constituted her husband her sole executor. The trust had not then been completely performed, and was not for several years afterwards.

At the time of her death, there was due-from Mary E. Lord, or from her and her husband jointly, to one George M. Bartholomew, who was a trustee for indigent, 'orphan and other children under the will of David Watkinson, the following sums of money:

•On the joint bond of Mary E. Lord and her husband secured by mortgage on Mrs. Lord’s farm....................................... $9,000 00
On their joint and several note dated May 23, 1881, payable on demand..................................................................... 2,958 52
On their joint and several note dated June 22, 1881................ 675 00
On the note of Mary E. Lord dated May 2,1882.................... 2,000 00
Total..................................................................... $14,633 52

On December 1st, 1882, Mary E. Lord and her husband joined in an assignment to Bartholomew of the Burnham agreement, the consideration of which assignment is therein stated to be “$14,633.52 and other valuable considerations to us paid by George M. Bartholomew.” The assignment is declared to be

■“additional to any security which the said Bartholomew now has for the payment of any indebtedness due to him from us or either of us and'is not to impair said security.”

Bartholomew assigned the above notes and collateral to complainants, and the first question is whether the collateral may now be resorted to for the purpose of enabling the complainants to obtain payment of so much money as still remains due on the notes.

It is contended by defendants, first, that these notes have been paid in full; second, that the security of the Burnham agreement has been released or extinguished; third, that if the notes have not been paid, the statute of limitations has run against them; fourth, that as to the note of $675, Mrs. Lord stood in the position of surety only, and her promise, being that of a married woman, is unenforceable.

1) It is quite clear that the notes have not been paid. The $9,000 mortgage bears date June 23d, 1876. Only $300 was paid for interest up to May 23d, 1881. On that day Mr. and Mrs. Lord gave their joint and several note for $2,958.52, being the interest then due on the mortgage, as they computed it. On January 31st, 1885, Lord, as executor of his deceased wife, sold the property, subject to the above mortgage, and from the proceeds of the sale paid Bartholomew $3,000. There was then due for—

Interest, the amount of the above note................................... §2,958 52
Interest thereon, three years, eight months, eight days.............. . 654 77
Interest on §9,000 mortgage, three years, eight months, eight days....................................................... 2,323 00
Total..................................................................... §5,936 29
Deduct..;................................................................ 3,000 00
Still due for interest, January 31st, 1885............................... §2,936 29

The purchaser subsequently paid Bartholomew the principal sum due on the mortgage, with interest, accruing from the time of his purchase, and Bartholomew surrendered the bond and mortgage to him. He retained possession of the note'and subsequently endorsed upon it the following: “Interest settled to August 1, 1885, J. M. B.” No payments have since been made-upon it.

It is said by complainants that the $3,000 were paid on general, account, and not for interest upon the $9,000 mortgage. It is said by Mr. Lord, on the other hand, that this money paid the note for $2,958.52 in full, but in this he is evidently mistaken. Bartholomew’s evidence on the subject is vague in the-extreme. He manifestly recollects little or nothing about it. The money coming, as'it did, out of the proceeds of the sale of ■the farm, would naturally have been appropriated to the payment of the interest then due upon the mortgage on that farm.Bartholomew’s endorsement on the note that interest was settled to August 1st, 1885, can only be correct on the theory that such appropriation was in fact made. Besides, this was the earliest-debt. I think the payment should be attributed to the interest due on the bond and mortgage.

(2) The next question to be considered under this head is the effect of the settlement purporting to have been made August 4th, 1885, though actually made some months after that time. It appears that Bartholomew, having misappropriated the moneys-belonging to the complainant trustees, went to Canada and there had a settlement with Lord with a view to his- return. Exhibit No. 21 is a copy of the account as stated. It includes the notes-secured by the assignment and also some other notes given by Lord as executor after his wife’s death. The principal and' interest due upon the entire indebtedness, after crediting all payments on account of either principal or interest, is $14,869.60. This did not make up the entire amount of Bartholomew’s defalcation, and so Lord, who at that time was extremely friendly to him, agreed that Bartholomew should hold the above-mentioned notes of $2,958.52 and $675, and that he would give him, in addition, a note for $13,566.48. This he did, and t-here-upon Bartholomew gave him the following writing:

“George R. Lord :
“Dear Sir — In consideration of having and receiving three notes, .viz. [describing the notes for $2,958.52, $675 and $13,56.6.48], all said notes to be fully paid in accordance with their tenns, I hereby discharge and relinquish all claims I have upon you and upon the estate of Mrs. Mary E. Lord.
“ New York, 4 August, 1885.”

It is argued that this was a discharge and relinquishment' of the" security of the Burnham agreement. The rule of law is that a security cannot “ be considered released or surrendered where no payment has been made until some act or word of the creditor is proved, clearly manifesting an intention - of relinquishing or foregoing his right.” Hutchinson v. Swartsweller, 4 Stew. Eq. 205 (Vice-Chancellor Van Fleet) ; Swain v. Frazier, 8 Stew. Eq. 326.

Here, it will be observed, the discharge is not of all other claims; that is, of all claims other than the three notes, but of all claim. How, such a discharge could not take effect until the three notes were paid. In order therefore to give effect to what appears to have been the intention of the parties, as we find it expressed in the writing itself, we must construe the paper as if it had read “in consideration of having and receiving three notes and of their payment in accordance with their terms, I hereby discharge,” &c. This construction would relieve Bartholomew from the imputation of being willing, as trustee, to surrender a valuable security, and would appear to be the one most consistent with its terms. Moreover, having regard to what the parties were doing, vix., settling the amount of what was owing, and to the rule of law above mentioned, the word “ claim ” should probably be interpreted as referring to indebtedness merely and not to the collaterals securing it. I think, therefore, that Bartholomew was still entitled, notwithstanding the settlement, to the benefit of the Burnham security.

I now come to a question of more difficulty. Shortly after the settlement, Lord, as executor' of his wife, entered into an agreement with Burnham, bearing date April 1st, 1886, by the terms of which, speaking very generally, Burnham agreed to convey the unsold land held by him in trust to Lord as executor. Doubts having arisen as to wnether this agreement could be lawfully carried out, a bill was filed in the court of chancery by Lord as complainant against Burnham as defendant praying a specific performance. The suit appears to have been a friendly one. On June 10th, 1889, the court decreed performance, and on June 24th, 1889, a deed was givent pursuant to the decree. This terminated the Burnham trust, and it was a valid termination, so far as Burnham was concerned, not only as against Lord, but also as against Bartholomew, who, as far as the case shows, had not notified Burnham of his interest. Now, it will be remembered that this trust was, first, to take a conveyance of the land; second, to sell it; and third, after paying certain debts and expenses, to divide the net proceeds into three parts, two of which should go to Mrs. Lord and one to Burnham, with a proviso, however, that if Mrs. Lord should prefer and should so notify Burnham, Burnham would, after payment of debts and expenses, convey two-thirds of the land to Mrs. Lord in specie and retain one-third for himself. I have already shown that Bartholomew’s interest had not been surrendered. But it was not an absolute interest. It was in the nature of a mortgage interest only. The situation, then, at the time Burnham deeded to Lord, was this: Assuming that, notwithstanding the assignment, Lord, as his wife’s executor, had the right to make an election to take land instead of the proceeds of the sale of it, as he virtually did by his subsequent agreement with Burnham, it was his duty to Bartholomew to have directed Burnham to make a conveyance of that land to Bartholomew, to secure the payment of the obligations mentioned in the assignment. As he did not do this, but, with full notice of the assignment, took a conveyance to himself, Bartholomew had the right to call upon him immediately to execute a conveyance, not, as I have said, an absolute conveyance, but a conveyance in the nature of a mortgage. Bartholomew made' no such demand. He retained the assignment until April 28th, 1897, when he assigned it to the complainants.

The right of Bartholomew was clear at the time, but eight years have elapsed since the _ right' accrued, and the question arises whether the complainants are now barred by Bartholomew’s laches from asserting it. Speaking of a case of specific performance, Mr. Justice Magie, in Meidling v. Trefz, 3 Dick. Ch. Rep. 644, observed that no rule respecting the length of delay which would be fatal to relief could be laid down, but that each case must depend on its peculiar circumstances. While the case in hand is not exactly a case of specific performance, it is so like it that the observation is, I think, fully applicable to it. Looking at its very peculiar circumstances and considering that no injustice will be done to Lord, whose position in respect of the lands remaining unsold has not been changed, I think the complainants should not be prejudiced by the delay of Bartholomew. The cases are numerous in which a much longer period than eight years has been held to constitute no bar.

Another question now. arises. The Burnham agreement was assigned as security for the payment of indebtedness due to Bartholomew from Mr. or Mrs. Lord, or either of them. The outstanding debts thus secured are, at present, only the joint and several notes for $2,958.52 and $675 and the note of Mary E. Lord for $2,000. It is claimed that the statute of limitations has run against them all. On the first two, which bear date May 23d and June 22d, 1881, respectively, there is an endorsement of interest received under date of May 23d, 1881. On the third, which bears date May 2d, 1882, there is no endorsement of interest. In reference to the first two, there is a conflict of evidence as to whether any payment has in fact been made. On May 21st, 1891, Mr. Lord wrote to Mrs. Bartholomew, Mr. Bartholomew being then in prison in Connecticut, “I enclose you ten dollars as requested by Mr. B.” Three dollars of this Mr. Bartholomew applied upon the note for $2,958.52, one dollar upon the note of $675 and six dollars upon the note of $13,566.48, as he says, pursuant to a prior understanding that Lord would send the money to keep the notes alive. This Lord denies, but I think that the weight of the evidence is against him. Consequently the notes for $675 and $2,958.52 were not outlawed, when on May 10th, 1897, the bill was filed. The statute of limitations has run against the note for $2,000, unless, as- the contention is, the payment of six dollars .on the-; note of $13,566.48 has prevented, its running. The last-mentioned note, it will be remembered, yras given on the settlement-of August 4th, 1885, the $2,000 note being one of the items which entered into, the account. The note of $13,566.48 was-signed by “ George R. Lord, executor for Mary E. Lord, > dec’d.” The note of $2,000 was signed by Mary E. Lord > alone, in her lifetime. The note signed by George R. Lord,.executor, is his individual note. Hellier v. Lord, 26 Vr. 367. It cannot.be enforced against Mary E. Lord’s estate. This being so, I am at a loss to understand how a payment credited upon the individual debt of George R. Lord could operate to-keep alive a debt of Mary E. Lord. The debts constituted distinct causes of action; that against Mrs. Lord accrued four-months after May 2d, 1882; that against Mr. Lord four years-after August 1st, 1885. On what principal could a payment made in respect of the one cause of action operate to remove-the bar of the statute to another cause of action against a different person ? I think, therefore, there could be no recovery in an action at law upon the $2,000 note.

The question then arises whether if the note be outlawed the-security may be enforced. It is well settled that although the remedy to enforce the debt may be barred, yet the lien upon the-personal property pledged will remain. Busw. Lim. § 140. It is also well settled that in the case of a bond and mortgage-upon real estate, the statute may have barred the recovery on the bond and yet the lien upon the land will remain and may be enforced until the expiration of twenty years next after the-. breach of the condition upon which the right of entry accrued. Blue v. Everett, 11 Dick. Ch. Rep. 455. If, then, Lord had performed the duty of causing Burnham to make, or of making-himself, to Bartholomew, a conveyance of the land as security . for the sum pledged, notwithstanding the fact that the remedy ■ at law upon the note might have been lost, the remedy in equity would have remained. But it is one of the maxims of this-court that equity regards as done what in good conscience ought to have been done. Pom. Eq. Jur. § 364. It seems to me, ■therefore, that as far as the $2,000 note is concerned, it must •still be regarded as secured by the land.

One other question remains to be considered on this branch ■of the ease, and that is whether the note for $675 may be properly charged upon the land belonging to Mrs. Lord’s estate. It ■is said that the money was lent to one Boud, the father of Mrs. Lord, and that the note was given to secure his debt. There is •but little evidence on this subject, and that vague and unsatisfactory. No one who reads the testimony'can fail to be struck with the general inaccuracy of both Mr. Bartholomew’s and Mr. Lord’s statements. Bartholomew swears that he lent the ■ money to Mr. and Mrs. Lord; Lord swears that the money was lent to Boud. Neither one of these witnesses gives any particulars, and neither is corroborated by other facts or writings. The burden of proof is on Lord. Reeves v. Morgan, 3 Dick. Ch. Rep. 433; Thomas v. Weaver, 7 Dick. Ch. Rep. 581. As the ■evidence in his favor is not preponderating, the defence is not made out; but if it had been, the lien could still, I think, have been maintained on the principle laid down by the court of errors in Warwick v. Lawrence, 16 Stew. Eq. 179, where it was held that while executory contracts of suretyship are not enforceable against married women, executed contracts cannot be rescinded by them. The familiar case of a mortgage given by ¡a married woman to secure the debt of another person is referred to in that case by the chief-justice, and he says that the contract in.the bond being executory cannot be enforced against her, but ■the conveyance by the mortgage being executed her title may be foreclosed. In the case in hand the wife executed an assignment of the Burnham agreement, and this assignment was binding upon her whether it be looked upon as an assignment of money or of land. Walker v. Dixon Crucible Co., 2 Dick. Ch. Rep. 343. The fact that her executor wrongfully procured to himself a conveyance of that which under his power of election he elected to take as land, could not vary the rights of the parties as they had been fixed in his wife’s lifetime.

The complainants, then, not having lost their right to call for a mortgage conveyance and to have the land thus burdened sold to pay the debts owing to them, there is no reason why the court may not in this proceeding charge the debt directly upon the lands remaining in the hands of Lord as executor and order a sale, if necessary.

The complainants further insist that other notes and advances were subsequently secured by a verbal pledge of the Burnham agreement.

The notes and advances as to which this contention was made are the following:

Note of George M. Bartholomew, dated November 10th, 1882, to the order of George R. Lord, payable four months after date, for................................................................................. §1,000 00
Receipt, dated December, 1882, given by George R. Lord to George M. Bartholomew..................................................... $00 00
Receipt of George R. Lord, dated January 19th, 1883, for..... 650 00
Note of George M. Bartholomew, dated February 8th, 1883, payable to order of George R. Lord...................................... 2,000 00
Note of George M. Bartholomew, dated May 7th, 1883, to order of George R. Lord for................................................ 2,500 00
Note of George M. Bartholomew, dated November 10th, 1883, to order of George R. Lord, endorsed George R. Lord and George R. Lord, executor................................................... 1,000 00

The first two of these evidences of indebtedness differ from the rest in having been given in the lifetime of Mrs. Lord. As to the note of $1,000, although it was in existence when the Burnham agreement was assigned, it was not mentioned in it, is not covered by its terms, and is not one of the notes which went to make up the aggregate amount mentioned as the consideration. It must be presumed that the parties intended not to secure it by the assignment. As to the loan of $500, the evidence does not show that it was secured by the assignment either at the time it was made or afterwards.

As to the advances made after Mrs. Lord’s death, it seems to me plain that they are not secured by the pledge. The evidence of pledge lacks definiteness, but, assuming it to be sufficient, it is open to this objection. If Mrs. Lord’s interest in the Burn-ham agreement was in the nature of a partnership interest — that is, an interest in personalty — there was nothing in her will which authorized the executor to pledge her estate for money lent to benefit such interest. He was not authorized to carry on a partnership, and he was not bound by any stipulation in the agreement made by his wife to expend money upon the land held in Burnham’s name. The only powers conferred by the will were a power to sell personalty and a power to mortgage and sell realty. If, on the other hand, Mrs. Lord’s interest was an interest in real estate, her executor had no power to borrow money on his note or otherwise for the purpose of improving such estate. Counsel argued that the executor had power to borrow money to pay debts, and that, having such power, the lender was not obliged to see to its application. This argument is contradictory to the complainant’s case, which is based upon the ground that Bartholomew was lending money to improve Mrs. Lord’s land. Bartholomew explicitly testified that that was the only purpose for which he lent it. Lord, on the contrary, says that the loans to him were personal loans and that the money borrowed did -not go into his wife’s estate. In either case the argument is untenable.

It is also contended by complainant’s counsel that the money having been lent to a married women for the benefit of her estate, is chargeable against that estate. The argument is specially applicable to the note of George R. Lord for $1,000, dated November 10th, 1882, and his receipt for $500, dated December 22d, 1882, both of them having been given shortly before Mrs. Lord’s death. Of course, it has no application to the money lent to Lord after she died. In point of form the note is made to Lord personally and the receipt is his personal receipt. To overcome the presumption afforded by these indications, we have Bartholomew’s testimony that he lent the money to improve Mrs. Lord’s property. In the case of the note, Lord testifies that the money was lent to him. In the ease of the receipt, I do not find any explicit statement. The letter, if any, accompanying the note, is not produced. The letter accompanying the receipt throws no light upon it. The reference in the prior letter of December 18th is much too uncertain to warrant a reasonable inference. On the whole, the burden of proof being on the complainant and both note and receipt appearing,- upon their face, to indicate that it was the intention to make Mr. and not Mrs. Lord the debtor, I do not think the complainants have made out a case. If they had, the cause of •action established against Mrs. Lord .would have been one for money lent and would have been long since barred by the.statute of limitations. I cannot understand how her estate could be charged with a debt no longer enforceable.


source: Caselaw Access Project

author: Stevens, V. C.

license: Public Domain

text:
    Florence G. Collins v. James L. Steuart.
    [Filed October 4th, 1899.]
    1. An assignment to the wife of a decedent of securities standing in his name was found after decedent’s death. The assignment stated that it was made to protect his wife.from loss of bonds he had borrowed from her with which to raise money, and was signed by one witness, who testified that in executing the paper decedent told him he was about to use some of his wife’s securities to obtain money, and in order to save her from possible loss, was settling over to her certain securities of her own. — Held, .that the document should be sustained as a declaration of trust.
    2. Where a declaration of trust, executed by a decedent and found among his papers, had been amended by him after its execution, by the substitution of different securities, it is to be presumed that the intention was that the declaration should be operative as amended.
    3. The fact that an insolvent decedent had made a declaration of trust covering certain securities, to protect his. wife from loss of bonds belonging to her, used by him to raise money, does not, in case such securities are insufficient to cover her loss, give the wife a preference in the distribution of the general assets over other creditors, where it is not shown that the assets include the, identical money raised by decedent on bonds belonging to his wife.
    On bill, &e.

      Mr. William M. Seufert and Mr. Washington B. Williams, for the complainant.

      Mr. David D. Zabrisicie and Mr. William R. Barrieldo, for the defendant.
   Stevens, V. C.

On July 5th, 1883, the complainant, Florence G. Collins, was married to Walter S. Collins. She was then possessed of prop•erty consisting of bonds and other securities held for her by her mother, Mrs. Gaston. On March 7th, 1884, Mrs. Gaston handed to Walter S. Collins securities to the amount of $16,600, and took from him an acknowledgment that he received them for his wife. Among them were seven bonds of the Chicago, Milwaukee .and St. Paul Eailroad Company, six of which, on March 7th, T888, he deposited with the First National Bank of Staten Island, to secure his note for $5,500. On March 13th, 1889, he borrowed an additional sum from the same bank, gave a new note for $6,500 and deposited the remaining bond as further •security therefor. He continued to pay interest on the note ■up to the time of his death, which occurred on December 5th, 1893.

On March 14th, 1889, that is, one day after he had pledged the last bond, he executed a paper, in form, an assignment of ■certain stocks which he then owned, in the presence of John W. Loveland, his wife’s cousin. This assignment, after stating that in consideration of the loan to him by his wife Florence of the bonds in question (a statement not true in point of fact), he had pledged them as security for his note, proceeds as follows:

“ I hereby assign and set over to said Florence G. Collins, her heirs and .assigns, the following property now standing in my name, to secure her from loss in case said bonds should be forfeited by the non-payment of my said note, as therein provided, viz. [mentioning certain stocks of industrial companies], the certificates for same being hereto attached, and I authorize the ■proper persons to make the transfer of said shares on the happening of the ■contingency herein slated.
“ Witness my hand and seal this 14th day of March, A. D. 1889.
• “Witness — John W. Loveland. W. S. Collins.” [Seal.]

This paper was found at his death in a tin box in which were contained securities, some of which belonged to Mr. Collins and some of which belonged to his wife. It was not in the condition in which it was when executed. Collins had, between the time of its execution and the time of his death, drawn lines through the names and amounts of some of the stocks specified, and written in, in red ink, the names and amounts of others. On the left-hand side of the paper he had written as follows: “Amended in red ink, 22 Sept. /92 W. S. C.” The par value of the stocks in the paper, as amended, was $10,600. Mr. Love-land, who took the paper out of the tin box, a few days after his death, thinks that the stocks enumerated in it, as it then stood, were, with a single exception, attached to it. Collins estate is insolvent, and the question is whether the above paper has legal force, either as an assignment or as a declaration of trust. I have come to the conclusion, after some hesitation, that it is capable of being sustained as a declaration of trust.

The question of what amounts to such a declaration has been recently before the court of appeals in Janes v. Falk, 5 Dick. Ch. Rep. 468. It was said in that case that it is not essential that the memorandum relied upon should have been delivered to any one as a declaration of trust or that the cestui que trust should have been informed of the trust. It has often been held in other cases that it is not necessary that the word “ trust" should be used by the declarant. Such being the law, it seems to me that there is enough here to show that Collins declared a trust at the time the paper was first executed. What he did was this: He, in terms, assigned and set over, using words de preesenti, certain stock standing in his name. This, assuming that the paper took effect immediately, vested in his wife not a legal title but only an equitable interest. Passing by the objection that he could not directly convey to his wife, numerous cases show that the legal title to shares of capital stock does no.t pass by formal assignment merely. The legal title, therefore, in any event, remained in Collins himself. But did Collins so intend ? If he did, then we have what amounts to a declaration of trust — that is, a declaration showing that the declarant holds the legal title for the benefit of another person, to whom he thereby transfers the equitable interest, and the case is distinguishable from such precedents as Milroy v. Lord, 4 DeG., F. & J. 264, and Richards v. Delbridge, L. R. 18 Eq. 11. I think Collins did so intend, for in the paper itself he further provides that the proper persons are to make the transfer “on the happening of the contingency herein stated.” This contingency is the forfeiture of the bonds by non-payment of the note. So he is to hold the legal title until such forfeiture. As the forfeiture did not occur in his lifetime, he, up to the time of his death, held the legal title in strict accordance with the terms of the instrument.

If, however, complainant’s case rested on the paper alone, I should doubt very much whether it would be maintainable for another reason. There would be an entire failure of proof that he intended the paper to become operative. It would be a dangerous thing to give effect to a deed or other instrument found in the possession of the man who had signed and sealed it or had even acknowledged it before a commissioner, without proof of delivery or of something equivalent to delivery. The evidence of Loveland appears to supply, the needed proof. He says that at the time he witnessed the paper Collins said to him:

I am about to use some securities of Mrs. Collins for the purpose of obtaining money, and in order to save her from possible loss in case of forfeiture for non-payment, I am here setting over to her certain securities of her own, and I wish you to witness this paper as a pledge of those securities.”

The securities were at the time, according to Loveland’s recollection, attached to the paper, This evidence shows that Collins intended the declaration to be operative from the time of its execution. The following cases are illustrations of how this subject has been dealt with, under a somewhat -similar state of facts. Ex parte Pye, 18 Ves. 140, 150; Richardson v. Richardson, L. R. 3 Eq. 686; Morgan v. Malleson, L. R. 10 Eq. 475 ; Baddely v. Baddely, 9 Ch. Div. 113; Fox v. Hawks, 13 Ch. Div. 822 ; In re Smith’s Estate, 144 St. 428.

The question then arises, how far is this declaration now ■operative? Some, but not all, of the stock was taken from the ■trust and other stock substituted in its place. I think the trust attaches to the substituted stock. As the paper was to become immediately operative in the first instance, we may reasonably accept as true Collins’ written declaration, made subsequently, that he intended to “ amend ” it only, not to nullify it, by substituting .other stocks -for those taken. If he intended it to become operative in the first instance it may be safely presumed •¿hat he likewise intended it to continue operative as changed; aud this presumption will be the more readily made as we are dealing with a transaction based on valuable consideration and not with a case of gift.

It is contended that the whole estate is liable to make-good any loss complainant may suffer if the collateral should prove to be insufficient, before it can be applied to pay the claims of general creditors. There is nothing to show that- the money which Collins obtained from the discount of his notes went into his estate, or that it now, in a changed form, constitutes part of the estate. He may have paid his debts with it, lost it or used it to maintain his family. No attempt was made to trace the money into the property of the deceased. Under these circumstances the complainant has no prior right to payment. Matter of Gavin v. Gleason, 105 N. Y. 256.


author: Grey, V. C.

text:
    Ellen Chose Roberts v. Lewis B. Scull.
    [Filed May 27th, 1899.]
    1. Where an owner sells a portion of his lands with a covenant restricting its use, a subsequent grantee of another portion from the same owner may enforce the covenant against the original grantee and against all subsequent purchasers from him, with notice of the covenant.

      2. -A-prior purchaser from the original owner cannot enforce a restriction imposed by the latter upon a lot subsequently conveyed, unless in the prior-deed there was a grant of a right in the residue of the land retained by the-vendor, or a stipulation that the restrictions put upon the lot sold by the prior deed should also be imposed upon the remaining property when sales should be made to subsequent purchasers, or other indications that all the lots were-sold as parts of a uniform building scheme.
    3. To justify the issuing of a preliminary injunction the case shown by the complainant must exhibit a right free from doubt or reasonable dispute. '
    On bill. Order to show cause and answering affidavits.

      Mr. Allen B. Endicott, for the complainant.

      Messrs. Thompson & Cole, for the defendant.
   Grey, V. C.

The complainant in this suit is the owner of a house and lot situate on the east side of United States avenue in Atlantic City. She alleges that forty years ago one Brown, being the holder in fee of a tract of land of which her lot formed a part, opened a street, now called United States avenue, and built two- houses-on each side of it, facing on said avenue and set back from the street or property line a distance of thirty-two feet, and after-wards sold lots on either side of said avenue; and that in each of the deeds conveying those lots there was inserted a condition-that the house or houses to be built thereon should be in keeping with those already built by him and set back a distance of thirty-two feet from the property line, and that no stables or outbuildings should be erected on any of said lots; and that as a result of said restrictions United States avenue has been built up with cottages in good style, and said lots have been kept free from all buildings except such as face on United States avenue.

Brown, on the 19th of October, 1888, conveyed to one James F. Graham the lot at the southeast corner of Pacific and United States avenues, running back from United States avenue to-Pacific avenue with a uniform width of eighty feet. This lot is marked Harris on the annexed map. The deed to Graham contained the following restriction :

“Under and subject nevertheless to the following condition and restrictions: That the house erected upon said lot shall be of good style, and in keeping with other properties on the said United States avenue, to be built in a line with the other houses and at a distance of not less than thirty-two feet from the line of United States avenue, and that the depth or width of the porch shall not be more than eight feet; that there shall be no stable or outside privy erected upon the same, and that no building erected upon the said lot shall be used as a hotel, tavern, boarding-house or other like purpose.”

The last-named deed was duly recorded. By intermediate conveyance this lot came to be held by Eva L. Harris, who, on the 20'th of January, 1899, conveyed to the defendant, Lewis B. Scull, a portion of that lot, not facing on United States avenue, but located at the other end of the lot, fronting forty feet on Pacific avenue and eighty feet on Delaware avenue. This lot is marked “ Scull” on the annexed map. The complainant alleges that Scull’s lot is subject to the restriction above quoted, as contained in the original deed from Brown to Graham, and that in the deed from Mrs. Harris to the defendant, Scull, there is also contained this additional restriction :

“Subject nevertheless to a restriction (to which the party of the second part agrees) that the foundation wall of the cottage to be built upon the above-described lot shall not be more than four feet east of the most westerly line of the said lot.”

The complainant, Ellen C. Roberts, is the owner of the lot of laud fronting on United States avenue, which lies immediately adjoining to the above-mentioned Harris lot on the south, along its whole length, and which is marked “ Roberts ” on the annexed map. She alleges that Brown, in 1882, conveyed the lot she now owns to one Ladner; that in the deed Brown inserted the same covenants and restrictions and conditions as those particularly set forth above, as contained in the deed from Brown to Graham, and that she took title to her lot by intermediate conveyance from Ladner, with full knowledge of the restrictions imposed upon it in the deed to Ladner, and was induced to purchase it because of the fact that the lands immediately north of her, and indeed all lots on both sides of United States avenue, were subject to said restrictions, and that the restrictions on her lot; and on the lot immediately adjoining her on the north, formed part of the purchase price of said lots respectively.

The situation of the lots in question is indicated by the following diagram:

The complainant further alleges that the defendant, Scull, is about to erect a cottage or dwelling-house on the lot of land conveyed to him by Mrs. Harris, and she alleges further that such a structure will be a great detriment to her, because it will interfere with the view of Delaware avenue, and that it is a violation of the covenant and restriction above referred to, because it will not be in a line with the other houses on United States avenue, or in a line with the house already erected on the Harris lot, and that it is also a violation of the covenant because it is not in keeping with the general plan and scheme with which United States avenue was opened and lots sold and houses built thereon; that she has given notice to Scull that the erection of his house as proposed is a violation of the restriction, “unless-it faces United States avenue and sets back thirty-two feet from the property line;” and threatening him with an application for an injunction to restrain him from building as proposed.

The complainant prays that the defendant may be restrained from erecting any building on the lot of ground conveyed to-him by Mrs. Harris. An order to show cause has been allowed,, and upon the qoming in of the rule argument was heard upon application for a preliminary injunction to restrain the defendant from erecting any building on his lot.

The defendant, Scull, for showing of cause, files an affidavit admitting his intention to build a dwelling-house on his lot, to-front on Pacific avenue, which dwelling-house, he declares, will be attractive in appearance and as expensive, approximately, as-the other buildings on UniLed States avenue. He denies that the lots on United States avenue have been kept free from structures, except such as faced United States avenue, and says that on the easterly side, at the ocean end of United States-avenue, there has, for five years past, been a building, not a cottage or dwelling-house, used for amusement purposes, and on the westerly side, at the ocean end of United States avenue,, there are bath-houses, which have been so used for five years; that there are also two buildings on said avenue which are being used for boarding-house purposes, one of which has been used-for the past three years, and that none of said buildings are of good style or in'keeping or built in line with thé other properties on said avenue.

The defendant also files an affidavit of a civil engineer showing that the complainant’s own property is built in- breach of-the restriction above quoted, in that it is but thirty-one feet back of the line of United States avenue, and that the porch on-her property is ten feet in width or depth; that several other properties are nearer the line of United States avenue than thirty-two feet, and also showing that there are other buildings on the United States avenue lots which are in breach of the-restriction because they have been used, some of them, for boarding-house purposes for a number of years; and that Brown had conveyed to other parties lots on the. easterly side of United States avenue, by deeds which contained no such, restrictions as to keeping the building back thirty-two feet from the property line, as aire imposed by the deeds to the complainant’s and defendant’s grantors.

It appears to be settled law in the state that restrictive cove-; nants, of the character set forth in the bill, will be enforced in equity, not only against the original grantee, but also against all subsequent purchasers with notice of the covenant. De Gray v. Monmouth Beach Co., 5 Dick. Ch. Rep. 329 ; Hayes v. Waverly, &c., Railroad Co., 6 Dick. Ch. Rep. 345, and cases there cited.

The parties who may enforce such restrictive covenants are the original grantors with whom they were made, and all subsequent purchasers of the lands to be benefited by them. The parties against whom they may be enforced are the grantees who accept deeds containing the restrictions, and all those who subsequently purchase the restricted lands with notice of the covenant.

The principle upon which a person not a party to a restrictive covenant is permitted to enforce it, is based upon the idea that the subsequent purchaser of lands to be benefited by the enforcement has made his purchase and paid his consideration in the expectation of the benefit to accrue to the land bought, from the observances of the restriction imposed by his grantor upon the use of the lots previously conveyed to the covenantor, and no injustice is worked upon the covenantor or his assigns with notice of the covenant by restraining them from using the land in a manner inconsistent with the contract under which they obtained the title and which fixed the price they paid with relation to the restrictions imposed. Tulk v. Moxhay, 2 Phil. 774. That is, the prior purchaser from the common grantor, by reason of the restrictions imposed, paid less price for his land; the party who subsequently purchased from the common grantor a part or the whole of the land to be benefited by the restrictions, bought in consideration of the benefits coming to his lot because of the restrictions. This relation is such a privity as supports an equity in the subsequent purchaser of the lot benefited by the covenant to enforce it.

' But this rule, while operative to enable a subsequent purchaser of land to be benefited by a restrictive covenant to enforce it against the prior purchaser, who made it, and against his assigns, with notice of it, does not work inversely to support the claim of a prior purchaser from the original owner to enforce a restriction imposed by the latter upon a lot subsequently conveyed. De Gray v. Monmouth Beach Co., 5 Dick. Ch. Rep. 329. The prior purchaser did not buy in expectation of any benefit to be derived from.the subsequent covenant not yet in existence, nor did the subsequent purchaser make his covenant with the common grantorwith relation to lands which the latter had previously conveyed and in which he had no interest.

In order to entitle prior purchasers from. a common vendor, or those claiming under them, to enforce such covenants, it must be shown that they are parts of a general plan adopted for the development and improvement of the property by laying it out. in streets and lots, prescribing a uniform building scheme, regulating size and style of houses, or uses to which the buildings may be put. De Gray v. Monmouth Beach Co., supra. When there is such a general plan and covenants imposing uniform restrictions, each purchaser, as he buys his lot and accepts the restrictive covenant, pays his purchase-money in •consideration of, and relying upon, the subsequent execution of the general plan by the imposition of like covenants upon succeeding purchasers. This equity arises in favor of a grantee .under the restriction of the uniform plan, as well against the original owner who promulgates and sells lots on the general plan and attempts to make subsequent conveyances in avoidance of it, as against a grantee who accepts a deed with the restrictions, and does acts in breach of them.

In the case before me, Brown was the commou grantor. He made the deed to Ladner for the complainant’s lot in 1882, im- • posing the restrictions above recited. He made the deed to Graham for the Harris lot, of which the defendant’s land is a part, in 1888. There is no proof whatever that when the deed for complainant’s land was made there was either a grant of any right in the residue of the land retained by the grantor, or a stipulation that the restrictions put upon this first lot should also be imposed on the remaining property when sales were made to subsequent purchasers. The complainant’s .affidavit declares that she, Mrs. Roberts, purchased with the information and belief that the lots on United States avenue were subject to the restrictions. The question must, however, be determined not by her expectation in her purchase from Ladner or from his grantee, but by the contract or action of Brown, the original owner of. the common property. The complainant herself does not appear to have had either dealings with or original knowledge of the transactions with Brown. No assurance of any kind from Ladner, or those from whom Mrs. Roberts received her deed, that Brown’s other lots were charged with the restrictions, could be of any effect to put her so in privity with Brown’s subsequent grantees that she would have an equity to enforce the covenant in Brown’s deed to Graham made subsequently to Brown’s deed to Ladner. The complainant’s right to enforce the restrictions must be based entirely upon rights vesting in her under Brown’s deed to Ladner, and which were conveyed by, but did originate in, the deed of Ladner to her. The Brown to Ladner deed, under which complainant claims, was made in 1882, and the covenants she seeks to enforce against the defendant are those in the Brown to Graham deed, made in 1888. She is, therefore, exactly in the position of the complainant in Mulligan v. Jordan, 5 Dick. Ch. Rep. 363. She cannot enforce the subsequent covenant in the Graham deed, because it was not made for the benefit of her lot, which had been previously conveyed by Brown to Ladner.

• The only ground upon which she can assert any equity to enforce these subsequent covenants, must rest upon proof that they were made with relation to,a general plan of improvement by the imposition of uniform restrictions for the b.enefit of the property included in the plan, with reference to which all bought, and the obligation to observe which is binding upon all.

.There is a suggestion in the bill that there was such a general plan of improvement, but the supporting proof depends entirely upon the complainant’s unaided, deposition. She was not a purchaser from Brown, the common grantor, nor does she appear to have any knowledge of his original design in laying out the-property. She testifies as to her information and belief as of the time when she purchased from Ladner, or some subsequent grantee, that the lot north of her and those on United States avenue were subject to covenants

“ that no dwelling-house could be erected on any of said lands except those-that front on United States avenue, and set back thirty-two feet from said avenue.”

No map of the lots is shown marking the building line, nor is-there any other proof of any action by the common grantor, Brown, indicating a design on his part to develop the land upon a uniform plan of which the covenants in the deed of Brown to-Graham for the defendant’s lot, fixing the building line, &c.,. formed a part.

The complainant herself does not appear to have any knowledge upon the subject save from hearsay. The coincidence-that all the deeds conveying any portion of the property contained the same covenants would not, if it were true, be sufficient of itself to show that the covenant made by Graham on-receiving his deed from Brown in 1888 was intended to be for the benefit of Ladner’s lot, who had bought from Brown in 1882, six years before. Mulligan v. Jordan, 5 Dick. Ch. Rep. 363.

The proof submitted does not support the claim that the covenants were part of a general building plan.

The construction which the complainant puts upon the Graham covenant, that it prohibits the erection of more than one building on the lot sold, and that the building in question must front on United States avenue, is not so clear that it is free-from doubt. The covenant speaks of “the house erected upon said lot” and prescribed its style and distance from the-line of United States avenue. It forbids the erection of a stable or outside privy, but does not otherwise prohibit a second^ building on the lot. The declaration that “ no building erected upon the said lot shall be used as a hotel, tavern, boardinghouse or other like’purpose” is not expressed to be limited to “ the house ” before referred to, and appears to recognize the possibility that other buildings might be erected on the lot, none .of which should be used for the prohibited purpose. It is’also doubtful if the covenant prohibits the building of a house to front otherwheres than on United States avenue. Such location is not in terms forbidden and can only be implied by holding •the covenant to restrict the use of the lot to the erection of one house.

The proofs submitted by the defendant refute in several essentia] particulars the claims made by the complainant. The •alleged uniformity of the plan of improvement is denied, and it is shown that Brown conveyed to at least one grantee a lot on the easterly side of United States avenue without imposing any restrictions whatever as to keeping his house thirty-two feet back from the property line of that avenue.

The defendant’s affidavits also show that in the actual improvements erected on the lots conveyed by Brown on United 'States avenue, nearly every one of the restrictions named in •Graham’s covenant have been violated. Buildings have been erected at the ocean end of United States avenue which do not ■face on that avenue, and have been for years used as boardinghouses, and which are not built in good style or. in keeping with the other buildings on that avenue. Porches on six lots, ■including the complainant’s, are wider than the eight feet named in the covenant. At least two of the houses are nearer to the line of United States avenue than the thirty-two feet prescribed by the covenant, and one of these latter is the house of the complainant herself.

Vice-Chancellor Green, in De Gray v. Monmouth Beach Co., 5 Dick. Ch. Rep. 329, declares the equity of a complainant^ in cases of this character, to spring from the presumption that he has purchased and paid for his lot, relying upon the general plan prescribing the restrictions for the benefit of all the purchasers, and that while he is bouud by and observes the covenant, it would be inequitable to.allow another owner, subject to the same restrictions, to violate it. But in the case at bar the complainant, on her own lot, maintains a house which is erected in breach of the very covenant which she seeks to compel defendant to observe.

The order to show cause should be dismissed, with costs.


text:
    William D. Johnson v. John A. Hughes et al.
    [Filed June 28th, 1899.]
    Though a court of equity will not determine a dispute concerning a purely legal title to lands, where no equitable question is connected therewith, it will restrain wanton injury to structures on the land in dispute, not adequately remediable at law, until the complainant shall, by suit at law, have his rights-adjudicated,
    On bill, answer and proofs.
    This is a suit seeking to enjoin the defendants from interfering with certain signs which the complainant had erected on a tract of meadow land lying along the West Jersey and Seashore Railroad near Atlantic City. The signs are business advertisements, painted on a wide board surface, which is built upon posts firmly set into the ground, so that they last- for years. These signs are placed near and parallel to the railroad and are rented by the complainant to advertisers for agreed periods of time and are intended to attract the attention of passengers in passing trains. The complainant claims to be the owner in fee of the land on which the signs are erected, which has been referred to in the evidence and indicated on a map (Exhibit D 10) as the “John T. Lake” tract. He charges that the defendants intruded on .his possession and have cut down his signs and interfered with and greatly injured his business and threatens to destroy all the rest of his signs, &c.

    The defendants also claim a legal title in fee to the same lands by deeds here exhibited and insist that they and those under whom they claim have been and are in possession of the premises in dispute.
    The lands consist of salt meadow, producing salt grass and sedge. They are not shown to be fenced or otherwise shut in, and the actual possession of the complainant appears to have been limited to the erection and maintenance of these signs.' The alleged possession of the defendants is of a very shadowy character and was actually asserted as against the complainant only at a very recent date.
    The complainant and the defendants both claim by deeds shown to hold a legal estate in fee in the lands in dispute.

      Mr. Martin V. Bergen, Jr., and Mr. Martin V. Bergen, for the complainant.

      Mr. Enoch A. Higbee, for the defendants.
   Grey, V. C.

There is no question of an equitable estate, or of fraud, or trust, or other matter of an equitable nature in this case. The title -asserted on each side is the holding of a legal estate in the premises which is antagonistic to the legal estate claimed to be held by the other.

No recovery or judgment of any kind establishing the right of either party to the lands in question is exhibited. '

Under this showing there is presented as to the ownership of the lands a question of dispute as to the holding of a purely legal estate disassociated from any element of equity jurisdiction. That questions as to the legal title to lands must in such case be determined in a court of law, is the settled rule. Hart v. Leonard, 15 Stew. Eq. 416. A court of equity will not determine disputes as to legal titles in such cases. Fahy v. Fahy, 42 Atl. Rep. 726; Torrey v. Torrey, 10 Dick. Ch. Rep. 410.

The complainant appears to have had his signs erected on the premises for some years before the defendants began to destroy them. He claims that he is entitled to a restraint against such action, because, if his signs are cut down as is threatened, his business will be destroyed and he will suffer irreparable injury, for which he can obtain no adequate remedy at law, and that on this ground he is entitled to the protection of this court, irrespective of the fact that there is a denial of his title to the lands in question, and that he has not as yet established his right, and that this court will not decide a dispute as to the legal title to lands in such cases.

Under the earlier practice, both in England and in this country, equity refused to restrain trespasses to land, and left the party to his legal remedy. As late as the time of Lord Thurlow injunctions were refused in such cases. Even quite recently courts of equity have refused relief in such cases. But the evident injustice of permitting the actual destruction of the subject-matter in dispute during the delay necessarily incident to the establishment by judicial determination of the rights of the parties, led the equity courts to interfere, not to decide the dispute as to the legal title, but to save the property from destruction until the law courts should, by a proper proceeding, adjudge the rights of the parties.

In the Flamang Case, cited in Hanson v. Gardiner, 7 Ves. 304, Lord Thurlow, in order to prevent irreparable mischief, allowed an injunction, though the right of the complainant was not established, and in the Hanson Case Lord Eldon followed that authority. The jurisdiction assumed by the courts of equity in such cases'is not for the determination of the controversy as to .the title, but simply for the preservation of the subject-matter in dispute from destruction; and, in the English practice, the •complainant who' claims the intervention of this court is put under terms that he shall, within a proper time, bring such suit in the law courts as may be necessary to establish his rights. Harmon v. Jones, 1 Craig & P. 299. In Coffin v. Loper, 10 C. E. Gr. 443, an injunction was allowed to stay waste in a partition suit requiring the complainant to establish his title without unnecessary delay, and that case was followed in Weise v. Welsh, 3 Stew. Eq. 434.

In the case in hand an injunction is sought to restrain the •defendants from the destruction by them of the signs put up on -the property in dispute by the complainant, and there maintained by him for a long time before any controversy had arisen. In, the signs themselves as structures the defendants claim no right or interest.

A part of the destruction (which appears, so far as the articles in question are useful for signs, to be absolute) the defendants admit was done by their acts. Another portion of the destruction, while neither proven nor admitted to have been done by the defendants, yet does appear to have been, done in accordance with their claim of right and to have effectually ruined several •of the structures used as signs. The character of the injury was plainly and finally destructive of the usefulness of the thing sought to be protected. When the signs were either-painted out •or cut down they were absolutely useless for any purpose of value to the complainant. The act of destruction was not only a final ending of the business of the complainant to the extent that it was carried on by the exhibition of these signs, but the •complainant is hereby made liable to a multiplicity of lawsuits by those who have paid him* for advertising by means of the signs.

The defendants do not deny the destruction of some of the •signs since this suit has been pending, and they assert their right to destroy them all, and while not confessedly declaring ■that to be their intention, they do not deny that purpose, and it ■is reasonable to believe that, having destroyed some and asserting a right to destroy all, that assertion of right may in the ■future be carried into effect by the actual destruction of the residue of the signs which still remain on this property.

An injury of the character threatened, which will deprive the •complainant of the business in which he has for years been engaged, and subject him to many suits by advertisers wdiose money he has received in payment for the continuous display ;of the signs, is not capable of adequate redress by action at law, for the reason that the extent of the damages which it will inflict on the complainant cannot be presented to a jury.

To restrain a destruction of such a character is within the practice of this court, in the exercise of its general equitable powers. Cornelius v. Post, 1 Stock. 196; Bank of Chenango v. Cox, 11 C. E. Gr. 452; Hart v. Leonard, 15 Stew. Eq. 416, under paragraphs 5 and 6, as to injunction to stay waste and to prevent irreparable injury, &c., and cases there cited.

An injunction to stop such threatened destruction of or interference with these structures until the complainant shall have had time and opportunity to establish by a suit at law the legal title which he claims he owns in these lands, is not, in my view, either an intrusion upon the province of the law courts or an unreasonable hardship to the defendants.

The propriety and necessity of establishing a legal title in the law courts is not only recognized, but by the terms here'imposed, on granting the injunction, that course may be compelled. The defendants are thus deprived of no other enjoyment of the lands in dispute than the opportunity for the wanton destruction of the structures erected thereon, a privilege the exercise of which, while of the greatest possible injury to the complainant, resulting, if carried into effect, in the substantial destruction of his business, is of no advantage whatever to the defendants.

The complainant insists that it should be the defendants and not the complainant who should be required to bring the suit at law to establish title. This would be true if this were a bill filed in accordance with the statutory requirements of the act regarding bills to quiet title. But this is not a suit to quiet title, in which an issue might be framed and the defendants be required to bring an ejectment. The bill does not set up the statutory incidents of such a suit. The complainant alleges that he had title and possession, and the defendants deny it and assert they own. The court intervenes only to prevent destruction, while the complainant may make good in the law courts his-allegation of title.

^ . There should, however, be no more interference with the possible legal rights of the defendants than may be necessary to-protect the property of the complainant from the threatened destruction, and the restraint should be upon terms that' the complainant shall within a reasonable time begin and prosecute with diligence against the defendants a suit at law, to define and enforce his title to the lands in question, as was done in the case of Harmon v. Jones and Coffin v. Loper, ubi supra. I will advise that an injunction be issued upon the terms named.


text:
    Mary A. Carter v. John Gray et al.
    [Filed June 30th, 1899.]
    1. A devise of all the residue of the testator’s estate 'and property will pass the territory of his lands not otherwise disposed of and all his title thereto.
    2. Where the words of a residuary devise plainly pass a fee, other language in the will will not be construed to impute to the testator an intent to die intestate of the residue, if such construction can be avoided. Presumptions in such case should favor a construction that the testator intended to die testate rather than intestate.
    3. Where the dominant purpose of the testator plainly appears on the face of a will, the whole instrument (so far as the words used permit) will be construed in accordance with that dominant purpose.
    4. Where the residuary clause blends the real and personal estate into one mass, the legacies are a charge not only on the personal but also upon ¿he real estate. ,
    Bill to quiet title, answer and proofs.

      Mr. Alan H. Strong and Mr. Woodbridge Strong, for the complainant.

      Mr. James H. Durand and Mr. Leslie Lupton, for the defendants.
   Grey, V. C.

This cause is presented on bill to quiet title and answer admitting all the material allegations of the bill, save the averment that the complainant took a title in fee-simple to the land in question under the will of Simon Carter, deceased,'under whom both parties claim, the complainant by devise, the defendants by descent.

The lands consist of five separate tracts in New Brunswick, N. J. Of these, Simon Carter died seized in fee-simple in '1893. His will is dated the 10th day of March, 1893, and was proven on April 6th, 1893, which is within a month after its date.

The whole controversy between the parties arises upon the construction of the will, and particularly upon the residuary clause and the next following paragraph. The complainant, who is the widow of the testator, contends that the will devises to her a fee-simple estate in all the testator’s real property, and the defendants, who are the collateral heirs of the testator, insist that the devise to the complainant passed only a life estate in the realty, and that the testator died intestate of the fee.

The testator left him surviving, his widow, the complainant in this suit, and no children, his heirs-at-law being his nephews and nieces, who are the defendants in this suit. He was possessed at the time of his death of about $11,320 of personal •estate. He does not appear to have owed debts to any substantial amount. He gave to his nephews and nieces ten money legacies. The sum of the legacies is $11,500, which would more than exhaust the whole of the personal estate. There is but one clause which makes any disposition of the testator’s real estate, and that is the residuary clause.

Looking at the whole instrument, it is readily seen that care for his wife was the dominant purpose of the testator’s mind, but in forming the will no expression was given to that purpose until he had by his money gifts disposed of all his personalty. Then comes the residuary clause, which shows the first dealing with the testator’s real estate. It is in these words:

“All the rest and residue of my estate and property real and personal, and of every nature and kind and wheresoever situate and being, I give, devise- and bequeath unto my wife, Mary A. Carter.”

The testator, by this clause, clearly shows his intent to give-to his wife the residue of both his realty and personalty. This-was the subject-matter of the gift. He does not define the extent of the interest which he devises to her, but his use of the words estate and property in this connection shows that he was giving to her his whole interest and ownership in this residue. The-word “estate,” at common law, even when used in a grant,, signified such inheritance, freehold, &c., or the like, as any man hath in lands (Co. Litt. 345); and a devise of all one’s real estatecomprehehds not only the physical thing itself but the interest which the testator has in it. It is a description of his fee (Bridgewater v. Bolton, 1 Salk. *237, Chief-Justice Holt), and carries not only the land but also the testator’s interest in it. Barry v. Edgeworth, 2 P. Wms. *524, and cases there cited; Jackson v. Merrill, 6 Johns. 191.

So, also, the word “ property,” when used in connection with other expressions showing that it refers to the testator’s real estate, or where the devise is of all tile testator’s property, will give a fee to the devisee. Morrison v. Semple, 6 Binn. 94; Jackson v. Housel, 17 Johns. 283.

These constructions of the meanings of these words are those-given at the common law and without the aid of any statutory declaration of the effect to be given to them.. They accord with their usual and ordinary use by all classes of persons and must be held to indicate a purpose to devise a fee in the testator’s real estate, unless some other expressions in his will control their use and indicate a different intent.

' In addition to the common-law rule above cited, the statute of 1784 (Gen. Stat. p. 3763 § 35) provides that devises from which the words of inheritance may be omitted, but which contain no expressions indicating an intent to pass an estate for life only, and no limitation over, shall pass a fee-simple. This statute is declared in its preamble to be enacted to aid testators who intend by their wills to pass absolute estates but who omit to use the technical expressions apt for that purpose. Since this statute, it has become common usage in drawing wills intended to pass a fee to omit the use of the word “ heirs.” A devise of the character named in the statute has, in legal construction under the operation of this statute, precisely the same effect as it would have had if the word “heirs” had been used.

The effect of the common-law construction of the words “estate and property” in this residuary gift must be held to pass a.fee, if they alone supported the complainant’s contention. The statute has the same effect, unless there be something in the will indicating a purpose to pass an estate for life only or to create a limitation over.

The only expression in the will which is claimed to show a contrary intent or to have a limiting effect, is found in the paragraph following the residuary gift, in these words:

“I do further will and direct that none of the foregoing moneys and legacies shall be paid until after the death of my said wife, and that she shall liave for her sole use and benefit the whole of the income from my entire estate, after payment of my just debts and funeral expenses, so long as she my said wife shall live.”

The defendants insist that the effect of this clause is to show an intent on the part of the testator to limit his wife’s interest in his real estate to an estate during her life only, and that he died intestate of the fee in that real estate.

This clause cannot be given the construction for which the defendants contend.- The subject-matter with which the testator is dealing in this paragraph is the “ foregoing moneys and legacies” and not his real estate. His gifts of money by his previously bestowed legacies were so large in amount that they would exhaust the whole of his personal estate. Their payment could be required in a year from his death, and this would deprive his wife of any use of his personalty. The whole scheme of the will shows that her support was his controlling purpose. Her deprivation of the use of his personal estate by the legacies was the mischief he desired to remedy by this paragraph. It should be noted that the legacies remain bequeathed to the legatees after this clause precisely as before, save that the time of payment is postponed until after the death of the wife, and ■it is during this same period — that is, so long as she shall live— that she is by the clause given the whole of the income. It is true the testator states it as the “ income from my entire estate after payment of my just debts and funeral expenses, so long as my said wife shall live,” but the subject-matter to which he was referring was his entire personal estate, and it was this whose payment he had just postponed during his wife’s life, and it may be fairly understood that it was the income from this which he wished his wife to have during her natural life. His use of the words my entire estate after payment of my just debts and funeral expenses ” aids this view, because it is from the personal estate that debts and funeral expenses are paid, and it was the income from what remained of this estate after such payment, which he desired to secure to his wife.

In the clause restraining the payment of the legacies and giving the income to the wife, there is no mention of real estate nor of the preceding residuary devise. To construe by implication the words “ my entire estate,” occurring in the clause which obviously deals only with personalty, to include also real estate, and to cut down the residuary devise to a life estate, and cause the testator to die intestate of the fee, is, in my view, to stretch these words beyond their proper relation, and give to them a meaning not within the contemplation of the testator and.opposed to the dominant object of the will, as it deprives the wife of a fee previously fully given.

A will ought not to be construed so as to impute to the testator a purpose to die intestate of the fee if it can be avoided. Wadley v. North, 3 Ves. *367.

This rule has been accepted in this country, and it has been held in Pennsylvania that no presumption of an intent to die intestate will arise where the words of the testator will carry the whole estate (Stehman v. Stehman, 1 Watts 475), and in New York that the law prefers a construction of a will which will prevent a partial intestacy to one which will permit it (Vernon v. Vernon, 53 N. Y. 361), and in this state in Yawger v. Yawger, 10 Stew. Eq. 218.

When the question presented requires the construction of a residuary clause, the courts have a strong disposition so to interpret it as to prevent an intestacy with regard to any part of the testator’s property. Leake v. Robinson, 2 Mer. *386. “ It must always be remembered,” says Sir Richard Pepper Arden, master of the rolls, in Phillips v. Chamberlaine, 4 Ves.*59, “that when the residue is given, every presumption is to be made that the testator did not intend to die intestate,” and in Warner v. Willard, 54 Conn. 470, where there was a devise of the real estate in terms for life to the wife, and also a gift of “ all the residue of my estate of whatever name or kind” to her, the residuary gift was helfl to have passed to the wife a fee in the real estate.

Kouvalinka v. Geibel, 13 Stew. Eq. 443, is in some respects like the case now under consideration. The testator gave his real estate to his three children in fee, and by a subsequent clause provided that the share of one of the three should be retained by his executors to be held for her benefit, the proceeds therefrom to be paid to her every year during the term of her natural life. The interest of this child was not cut down to a life estate-by the provision that she should have the proceeds during her life, nor did the testator die intestate as to the fee of that share. The devise to the child was held to pass a fee, though the rents, &c., were to be collected and paid to her by the trustees during' her life.

In the case at bar the testator had disposed of the residue of his whole estate by the residuary clause. The whole structure-of the will indicates that he did not intend in the next following-clause to deal in any way with the residuary disposition already made, but only to take away from the legatees during his wife’s-life, the enjoyment of their legacies, and to give it to her during that period.

This view accords with the expressions used by the testator in the legacy to James Carter. In the arrangement of his will he-had evidently overlooked James until after the other legacies,, the residuary clause and the paragraph giving the wife the use of the legacy moneys for life, had been written. The testator then gives to James Carter a legacy of $500, “ to be paid to him as-said other legacies are to be paid ai and after the death of my said wife, she having the income thereupon during the term of her life.” There is no reason to believe that the testator intended the reservation of the payment of the preceding legacy moneys to his other legatees, to have any effect different from the reservation of James’ legacy money. He evidently had in each case the same object in view, the saving to his wife during her life the enjoyment of his entire personal estate.

The phrasing of the residuary clause blending the real and personal estate into one mass, is held to indicate the testator’s intent that the legacies are to be charged not only upon the personalty but also upon the real estate. Corwine v. Corwine, 9 C. E. Gr. 579. This rule is admitted in the complainant’s bill to apply in the present case. The several money legacies are, under the terms of the will, charges upon the testator’s real estate.

There should be a decree declaring that, as against the defendants, the complainant became seized, under the will of Simon Carter, deceased, of a fee-simple estate in the premises described in the bill of complaint, charged with the payment of the several money legacies given by that will; that the defendants have no title to the lands in question, and no other interest therein, than the charge of their said several legacies thereon.


text:
    Dan Bishop v. Anna Estelle Bourgeois.
    [Filed July 1st, 1899.]
    1. Equity is the proper forum in which to enforce contracts between husband and wife.
    2. A wife’s promissory note is forceful only' when some beneficial consideration proceeds to her or to her estate.

      3. The wife’s possible share in the surplusage of her husband’s personalty in case he should die intestate and leave any, is too remote to operate as a beneficial consideration for her promissory note, given to pay his debts incurred for the purchase-money of personal property acquired by him.
    4. Where a contract which a married woman was incapable of making is sought to be enforced against her, an estoppel will not be worked in order to give it validity.
    The bill in this case is filed by Dan Bishop, the holder of a promissory note made by the defendant, Anna Estelle Bourgeois, the wife of one Anderson Bourgeois. The following is a copy of the note:
    “$1,000. Estellville, June 26,188
    “ Two years after date I promise to pay Anderson Bourgeois or order one thousand dollars for value received, without defalcation or discount, with interest. . “A. Estelle Bouegeois.”
    The circumstances under which this note was made and came to the hands of the complainant, Bishop, are somewhat disputed, but by the weight of the evidence they appear to be as follows:
    One Ellis Reeves was, in June, 1888, engaged at Dorchester, Cumberland county, in business as a ship carpenter. In that year he rebuilt a vessel for Dr. Palen, of Philadelphia!. Reeves demanded payment of Palen, who- told him he had traded the vessel to Anderson Bourgeois, who was the husband of the defendant. Bourgeois proposed to give Reeves his note in payment for the rebuilding of the vessel, and Reeves agreed to accept it, but on inquiry found that he could not “ handle it,” and so informed Bourgeois, adding that if he had Mrs. Bourgeois’ note he could “ handle ” that. Reeves then attended at Bourgeois’ house, and in his presence Mr. Bourgeois had the note drawn up and obtained his wife to sign it. Reeves then took it and a few days after sold it to Bishop for less than its face value. Reeves claims to have had a right of lien upon the vessel when Bourgeois bought it from Palen, and says he released the vessel from this lien when Palen agreed to transfer .the schooner to Bourgeois. •

      Anderson Bourgeois, the husband, appears to have paid $400 nn account of his proposed purchase of the vessel before the-giving of the note in question and to have paid some interest on' the disputed note. Afterward, in some proceeding against the boat and Dr. Palen, not fully proven, the marshal sold the boat by what is claimed to have been a superior title, and Palen was thus prevented from fulfilling his part of the contract. Mr. Bourgeois swears that Dr. Palen never did in fact transfer the vessel to him, and he does not appear to be contradicted on this point.
    After Bishop had bought the note Mr. Bourgeois paid the interest for some time, and when he ceased Bishop brought suit at law .against Mrs. Bourgeois, the maker, and against Reeves and Mr. Bourgeois as endorsers. Mrs. Bourgeois defended on the ground that no consideration proceeded to her for the note; that she was merely an accommodation maker for the benefit of her husband and of Reeves, and on this the complainant, Bishop, plaintiff in that suit, alleges he suffered a voluntary non-suit. He files this bill solely against Mrs. Bourgeois and prays that she may be decreed to pay the note with interest.
    Mrs. Bourgeois defends on the ground that she was a married woman when the note was given ; that it was made in a transaction in which she took no part and in which she had no interest, and which brought to her no benefit whatever; that she signed the note at the request of her husband and Reeves and for ‘their accommodation, without receiving any consideration therefor; that she paid no interest and did not know until about the time the suit was brought that the complainant considered her liable upon it.

      Mr. John 8. Mitchell, for the complainant.

      Mr. George. A. Bourgeois, for the defendant.
   Grey, V. C.

The complainant filed his bill in this court to enforce the payment of Mrs. Bourgeois’ note, alleging that as that contract, which he holds, is on its face an agreement between husband ánd wife, he can have no standing in a court of law to enforce it. He has undoubtedly selected the proper forum in which to present his claim. Rahway Bank v. Brewster, 20 Vr. 231.

The general rule that the contracts of a married woman are void at common law is practically undisputed.. One of the ele-, mentary principles on which this rule is founded is that the wife is presumed to be in the power of the husband and her' contracts to have been made under his coercion. Reeve Dom.Rel. *98. It is only when every presumption of any possible coercion is removed out of the way that the wife is held to be bound. Reeve Dom. Rel. *99. The cases in which the contracts of a wife are enforced stand under this exception, and it is held that if she ceases to be under his power by reason of his-absence from the realm (Co. Litt. 133(r) et seq.), or in case of his civil death (Co. Litt. 133(a); 2 Kent Com. *154), she may be held to answer separately. When, however, the wife acts-with reference to her separate estate she may lawfully separately dispose of it in any manner not inconsistent with the terms of the instrument under which she holds it. Leaycraft v. Hedden, 3 Gr. Ch. 548. But in order to enforce payment of her debts they must have been contracted for the benefit of her separate estate or for her own use on the credit of it. Armstrong v. Ross, 5 C. E. Gr. 114.

The complainant’s contention in this case is that the defendant wife should be decreed to pay this promissory note, because a beneficial consideration proceeded to her — first, through the sale of the schooner to Bourgeois, which increased his-personal estate, and that she thus received a benefit to her possible interest in this estate in case of her husband’s death intestate; and secondly, because Beeves had a lien on the schooner for his bill, which lien, by reason of her giving of the note to Beeves, came to Mrs. Bourgeois. He further insists that Mrs. Bourgeois apparently executed the promissory note as maker and Bishop purchased and paid for it, and that by this-Mrs. Bourgeois is estopped as against Bishop to deny the validity of her contract.

That the defendant was a married woman when the note in ■question was made; that the complainant knew this when he took the note, and that she did not participate in the transaction ■out of which the note came into being, appears substantially without dispute. The original indebtedness, as it arose, was the indebtedness of the husband, Anderson Bourgeois, to Eeeves. This is conclusively shown by the testimony of both Bourgeois and Eeeves. Palen was indebted to Eeeves for work on the schooner; Bourgeois had contracted to buy the schooner from Palen, and it had been agreed between them that Bourgeois .should pay to Eeeves a- part of the contract price on account of his bill for work done upon her. Eeeves had, as he says, accepted Bourgeois as his debtor. He shows this by his effort ■to obtain the note of Bourgeois alone to be discounted. The bargain was then complete. Bourgeois had himself then received the consideration in Palen’s agreement to transfer the schooner to him; he was ready to give his (Bourgeois’) note to-Eeeves; the latter was willing to take it. The transaction, so far as the exchange of values was involved, was concluded. Bourgeois had received the benefit of the contract, conveying the schooner to him, and was-arranging the ways and means of payment. It is quite evident that Eeeves considered Bourgeois as his debtor, and that the latter’s note to Eeeves would have been accepted save for the single reason that with Bourgeois’ name alone on it Eeeves was unable to “handle it” — that is, to have it discounted.

. It was not until this stage of the business that Mrs. Bourgeois’ name was ever mentioned. She was then brought in at Eeeves’ suggestion, not as a purchaser of the schooner, nor a transferee of the lien on her, nor as a bargainer in any respect whatever; nothing was reconsidered or rearranged. Mrs. Bourgeois came into the business solely and only to make the note, which, by joining her name with that of her husband, would give his obligation such additional credit that Eeeves might jeadily “ handle it” — that is, discount it. Mrs. Bourgeois had nothing to do with the negotiations with Palen for the purchase of the schooner, nor with Eeeves touching the payment for it. All .these matters had been concluded before she appeared in the transaction. She was brought in, as stated, to help make her' husband’s name good in promising to pay for a purchase preeedently made for his own sole benefit. Nothing was agreed to be given her, nor was there in fact or in law any benefit conferred upon her or upon her estate. Her possible interest in the-surplus of her husband’s personalty, in case he should have any at the time of his decease, and should die intestate, and she-should survive him, is entirely too remote and illusory to stand as a beneficial consideration to support her undertaking to make' good her husband’s’obligation to pay Reeves for the vessel.

As to the contention that Reeves’ lien on the schooner, by reason of the transactions between the parties, came to Mrs.Bourgeois, and the argument that in effect Mrs. Bourgeois purchased of Reeves his lien against the vessel, the foregoing narration of the facts shows that no incident occurred which justifies such a claim. There was no agreement whatever for such a purchase of the lien by Mrs. Bourgeois, nor did any of the parties contemplate or intend such a result. Reeves swears that he released the lien, and does not hint that he ever considered the transfer of it to anyone, and certainly never to Mrs. Bourgeois. Nothing in the whole course of the business was done which would have entitled Mrs. Bourgeois to have enforced such a lien, nor was such a possibility shown ever to have been within the thought of anyone. As above stated, the dealings with relation to the schooner were completed, resulting in the indebtedness of Mr. Bourgeois for the purchase, before Mrs. Bourgeois was mentioned as a party to the note. She came in not as an original contractor, but to lend her credit to make negotiable her husband’s note. Reeves did not release the schooner because of Mrs. Bourgeois giving the note. He had already released the schooner, accepted Bourgeois as his debtor and tried to get some assurance that he could get his paper discounted before Mrs. Bourgeois’ name was brought in to aid in accomplishing that result.

Nor was there in fact any novation whereby Reeves, Palen and Mrs. Bourgeois agreed that Mrs. Bourgeois should pay Reeves the debt which Palen owed, and that Reeves should forgive Palea and accept Mrs. Bourgeois in his stead. Nothing of this kind, affecting Mrs.' Bourgeois, appears to have been within the dealings of the parties. If this had taken place, it must be observed that, in view of the fact that the property of Palen in the schooner came to Mr. Bourgeois and not to Mrs. Bourgeois, it would not have been a beneficial consideration moving to her, though it might have been a damage consideration to Reeves, if he had surrendered his claim against Palen, taking Mrs. Bourgeois as his debtor in Palen’s place. But that was not the transaction; it was Mr. Bourgeois, not Mrs. Bourgeois, who agreed to pay Palen’s debt, and if there was a novation Mrs. Bourgeois was not a party to it.. The rule that the wife’s contract, in order to be forceful, must be her original undertaking based upon a consideration beneficial to her or her estate, is firmly established. In Perkins v. Elliot, 8 C. E. Gr. 526, and in cases where such a beneficial consideration is necessary to support the contract, the surrender of a lien by the other party or other consideration detrimental to him does not make the contract original. Cowenhoven v. Howell, 7 Vr. 327.

There was neither a purchase of Palen’s debt to Reeves by Mrs. Bourgeois, nor a surrender of it and an acceptance of Mrs. Bourgeois as the new debtor, nor a transfer of the lien of Reeves on the schooner to Mrs. Bourgeois, as a consideration for her giving of the note. She gave it at Reeves’ suggestion and her husband’s request, to enable his debt to be more readily negotiated, without any consideration whatever moving to her.

The complainant also insists, that as against him, Mrs. Bourgeois, having made a promissory note negotiable on its face, and he having bought it, she is estopped from setting up her incapacity to become a surety, as her defence.

The incapacity of a married woman to make any contract at common law has been above stated. The statute in force in 1888, when the contract was made, which, it is claimed, enabled her to contract, declares that “nothing herein contained shall enable such married woman to become an accommodation endorser, guarantor or surety, nor shall she be liable on any promise to pay the debt or answer for the default or liability of any other person.” Rev. of 1877 p. 637 § 5.

The face of this statute, so far from enabling a wife to become chargeable upon a promise to pay the debt of another, appears rather to positively protect her from such a possibility. The phrasing, so protecting her, is broad enough to extend its shield to save her from liability on any promise to pay the debt of another, no matter in what form it may be expressed.

The touchstone which will solve all questions as to the wife’s liability is whether her undertaking, whatever may be its form, is in fact a promise to pay the debt of another. If this be the case, an estoppel will not be worked to charge the wife on a surety contract which she is incapable of making at common law, and from liability under which she is expressly relieved by the very words of the statute. That she made the note in question without any liability on her part to her husband, the payee, or to Reeves, who, it was understood, was to receive it, has been hereinbefore shown. The note was not made and given for any consideration which passed to her, but to aid in the payment by her husband of the amount owing by him upon ■his precedent agreement to pay for property which passed to him.

The case of Hackettstown Bank v. Ming, 7 Dick. Ch. Rep. 156, is cited by the complainant in support of his contention that the wife is estopped to deny her liability on this note where in form she appears to promise as an original contractor. In that case one Swayze and Mrs. Ming, in order to raise money for Mr. Ming, made a note payable to his order. In that form, so long as it was held by Ming, it had no consideration whatever, and was nothing but accommodation paper. Ming, the payee, could have recovered nothing upon it, either at law or in ■equity. It was discounted by the bank’s officer, and all the proceeds were in good faith put to the credit of Mrs. Ming by a check given payable to her order. She was thus tendered the opportunity to receive the full beneficial consideration for her contract. She accepted it and subsequently marked the check payable to her husband’s order, and he used it in payment of his personal debt. The transaction was, as between the bank and Mrs. Ming, an original undertaking by her to pay the money, on .Mr. Ming’s order, and when the bank had in good faith given -to Mrs. Ming the full proceeds of her note, it did not lie with her to dispute her liability to the bank because of the manner in which she afterwards dealt with those proceeds. The note ■in the hands of the bank was, as stated in Bank of Elizabeth v. Craig, 1 N. J. L. J. 154, “ her own engagement to pay back the money she had induced the plaintiff to let her have.” The .argument advanced by the complainant that a married woman, in a matter not relating to her separate estate, but in a transaction in which she is in fact a mere surety, receiving no beneficial ■consideration whatever, may yet be estopped to set up her incapacity and be held bound, because her contract is apparently ah original undertaking, is not supported by the authorities cited. 'The contention is in direct contradiction of the declaration of the enabling statute. Gen. Stat. p. 2017 § 26.

In the Hackettstown Bank Case, ubi supra, the learned vice-,chancellor, in dealing with the question of estoppel, uses language which shows some color of a declaration, that where the face, of the wife’s promissory note does not indicate that she was .undertaking to .satisfy the liability of another, she should thereafter be estopped as against one who discounted her paper •to deny that she was liable as on her own original contract. Hackettstown Bank v. Ming, 7 Dick. Ch. Rep. 160, 161. The ■case presented for his consideration, however, showed that while the wife executed the note as maker, she also actually received •the credit for the moneys raised on the note. She therefore had :a beneficial consideration supporting the contract, as in fact her -own primary undertaking to repay to the bank what she received. This was the ruling in Bank of Elizabeth v. Craig, supra, which the learned vice-chancellor cites. The first syllabus in the Hackettstown Bank Case, in express terms, limits the estoppel against the wife to “ her acts done within the scope of the enabling acts,” and the discussion shows that the learned vice-chancellor dealt with the acts done by the wife as within the power given her by the enabling statute. To have been within the power given her by this statute, her undertaking could not have been to discharge the liability of another, but must have-been to perform her own contract, made upon a consideration beneficial to her. No estoppel was necessary to charge her. It-was not a case where, while incapable of acting, she, by her conduct, induced another to believe she had effectually acted, andón this to change his own position. She was capable of acting,. and did act, and because she acted was held to be bound. An estoppel will not be worked to enforce a contract which the-party whom it is sought to estop, had no power to make. So, in Noel v. Kinney, 106 N. Y. 81, the learned judge, who delivered the opinion of the New York court of appeals, declared that a-married woman may be estopped by her acts and- declaration in any matter in respect of which she is capable of acting sui juris. ■Where there is no legal capacity to contract, a party will not beestopped, even by falsely representing that he has capacity, for incapacity cannot be removed by the fraudulent representation of the actor. The law will not permit one legally incapacitated, to do that indirectly, which he or she cannot do directly. Herm., Estop. § 1105.

The case at bar is one of those to which the proviso in the-enabling act, above cited, directly applies. The husband and his creditor desired to secure the benefit of the wife’s credit to-enable the latter to obtain the money needed to discharge the-husband’s debts. They represented to her that she would not be held responsible, and thus obtained her to sign the note as maker, which the creditor took in payment of the husband’s-debt and sold to the complainant.

No consideration whatever moved to the wife, and it is now sought to make her liable on her promise to pay the debt of another.

In Bank of Elizabeth v. Craig, 1 N. J. L. J. 153, the wife was an endorsee of a note. She thus appeared to have not a-primary but a secondary liability, but the court, permitted proof to be taken to show that in fact she herself received the benefit-of the transaction with the bank. So, in- Todd v. Bailey, 29 Vr. 10, the wife appeared on the face of the note as a joint maker with her husband, but the case was held to be rightly tried when it turned upon an inquiry as to which was the principal debtor.

To deny a wife the right to set up her incapacity as a defence in such a case, is not only to defeat the express words of the statute, but also to precipitate upon a class unacquainted with business matters, the misfortunes depicted by Chief-Justice Beasley in Perkins v. Elliott, 8 C. E. Gr. 533, where, speaking for the court of appeals as to the proposition to enforce the surety contracts of married women, he says : To give to such an inexperienced body of persons the right to endorse notes, to accept bills, and to become surety on bonds and other instruments under the urgency of their husbands, or from the importunities of their relatives or friends, would not be a boon but a calamity. In my opinion, there is nothing in the general doctrines appertaining to the subject that should compel this court to concede the existence of the power in question, nor is there any consideration of public policy which seems persuasive of such a concession. I agree, therefore, with the chancellor as to the general principle that a court of equity will not effectuate the contract of a married woman not founded on a valuable consideration, binding her as surety for another.”

The complainant’s bill should be dismissed.