source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Michael Keavey v. Martin Barrett et al. Michael Keavey v. Catharine A. Barrett et al.
    [Submitted February 20th, 1901.
    Decided September 4th, 1901.
    Filed December 21st, 1901.]
    1. In an action by a claimant of realty as heir of his mother, evidence by the claimant that he learned from his mother that he was born in Ireland, and after his father’s death his mother emigrated to the United States, leaving him with his grandmother, who afterwards received money from his mother and stepfather to bring him to the United States, corroborated by others, and contradicted only by witnesses who are wholly discredited, is sufficient to establish his identity as such child.
    2. Where realty is claimed by inheritance from a mother, and it was proved that plaintiff was born of such mother, lived with her, and was known by a name other than that of his mother’s maiden name, that his mother declared his father died while claimant was an infant, and that he was recognized by her as her child and by her husband as a stepson, is sufficient, after such mother’s death, to support an inference of legitimacy, as against such stepfather.
    On bill, plea and joinder of issue thereon.
    Two causes heard together by consent.
    The parties to these two causes, and the subject-matter thereof, are the same. The difference in them lies in the statement of different facts and the prayer for a different relief in each, such difference arising out of the difference in the facts.
    The complainant, Michael Keavey, claims an undivided one-third interest in certain real estate in the county of Hudson as one of tbe heirs-at-law of his mother, Bridget Barrett, deceased, subject to the tenancy by the curtesy of his stepfather, Martin Barrett, one of the defendants.
    The allegation in one bill is that Martin has permitted the annual taxes on the premises to remain in arrear, and the prayer for relief is that he may be compelled to pay those taxes or lose his estate by the curtesy.
    The allegation in the other bill is that certain assessments for benefits have been levied upon the lands in question and remain unpaid, and that complainant is ready to pay his share, but that the other two heirs-at-law—defendants—who are entitled to equal undivided parts thereof, have not paid their share; and the prayer is that they may be decreed to pay the same, or, in default of such payment, that the premises may bé sold to pay the same.
    The plea which has been put in issue and tried by evidence is that of Martin Barrett alone, and is the same in each cause, namely, that the complainant, Michael Keavey, is not a child nor an heir-ai-law of the said Bridget Barrett.
    The complainant joins issue on the plea in each cause.
    Testimony was taken before a master, to be applied by consent to both causes, and they were brought on for hearing' upon the issues so joined and the evidence taken.

      Mr. James B. Bowen, for the complainant.

      Mr. Clement d,e B. Leonard, for the defendant Barrett.
   Pitney, V. C.

The solution of the question raised by the pleadings affects only the defendant Martin Barrett and his interest in the estate.

The defendant assumed the burden of proving his plea, although that plea consisted in a mere negativing of one of the facts necessary to the support of the bills, and was himself the first witness sworn in support of it.

He swore that he was married to his wife, who was the mother of his children, forty-five years ago, which would make it in the year 1855, at the Church of the Holy Cross, between Eighth and Ninth avenues, on Forty-second street, in the city of New York; that he knew his wife about two months before he married her by the name of Bridget Maloney; that she married him as such; that she told him before the marriage that she was a single woman and had never been married. .Both were Irish, and the witness is illiterate; that he continued to live in New York for about ten-years and then moved to West Hoboken, this state.

He swears that he knew the complainant and had known him for about twenty years, which would make it about the year 1880 and two years after the death of his wife, which latter event occurred in 1878; but he says that before he moved to West Hoboken-—which was thirty-five years before the giving of his evidence—the complainant came to his house when he lived in Sixteenth street, New York, and went away again; that he never stayed at his house any length of time; that on the first visit he stayed about a couple of weeks. He further says: “I asked my wife at that time who he was, and she told me ho was a distant relative to her.” He said that he had been told that she had a son; that there was a rumor to that effect, and that he asked her if she had a son, and that she denied it and said she did not have a son. Then he was asked this question:

“Q. During the lifetime of your wife did she ever acknowledge to you that Michael Keavey was her son?
‘‘A. No, sir; she did not; I put the question to her first, and she denied it.”

Ho was seveiMy-five years old at the time of his examination. On cross-examination he says that Michael Keavey came to his house when he lived in New York; came there as a tramp, while they lived in Sixteenth street; that he must have been fifteen or sixteen years old; stayed at that time about a week. Then he says:

“When I first saw him X asked my wife who he was. I heard the rumor about my wife having a child before lie first came to my house. A woman who used to come in the house told me. The woman is named Mrs. Sauer.”

And that this was before he saw Keavey or asked his wife if she had had a child; said he asked her more than once before he saw Keavey, and that her answer was that she did not have any; that after that first visit of a week or two Keavey was very seldom at his house. Further, on cross-examination, he says he heard rumors from two persons that his wife had another child, one was Mrs. Sauer and the other Mary Sandford. This further question was put to him on cross-examination:

“Q. During the week that Keavey first stopped at your house did you ask your wife who he was?
“A. Yes, she told me he was a distant relative to her.”

Further on he is asked these questions:

“Q. Did your wife ever tell you how Keavey was related to her?
“A. >She told me that week he was in the house that he was a near relative to her.
“Q. Did she tell you how nearly he was related to her?
“A. She did not.”

The examination of this witness shows that it was directed distinctly and exclusively, as was in fact all the rest of the evidence produced by the defendant, to showing that the complainant was not the child of his wife. The question of legitimacy was not hinted at.

This witness further shows that he had two children, who survived his wife, John and William; that one of them died intestate without children, and that the other, William, married and died, also intestate, leaving a widow, Catharine Barrett, and two infant children, who are made defendants.

Catharine Barrett jvas sworn as a witness, says she was married to her husband on the 12th of May, 1888; that her husband died'in 1898; that she had frequent conversations with Martin Barrett, and at none of them was Mr. Keavey spoken of; that she never saw the complainant at Mr. Barrett’s house—she believes that her husband was acquainted with Keavey; that Keavey was never at her house, except on the occasion of her husband’s death, and says that her husband never mentioned Keavey as a half-brother during his life.

The evidence of these two witnesses is thoroughly discredited.

The evidence of several apparently 'credible witnesses shows that the complainant and Martin Barrett were on intimate terms?; that the complainant spent a good deal of time at Martin’s house before he—complainant—was married, while he was a widower, and after a second marriage which he contracted; that the defendant Martin frequently spoke of him and introduced him to others as his stepson; that he spent some considerable time during the course of these years in complainant’s place of business—a shop in which he carried on the business of a tinner; and further, that he conveyed premises to Keavey by way of mortgage in 1870; that he gave him a bond in 1887, and a mortgage to secure it; that he leased premises to him in 1897, and that he made a deed of lands to him in 1898; that he brought a suit against him in the municipal court of the city of New York, first district, and that he was sworn in that cause on July 18th, 1899, in the district court, No. 154 Clinton street, New York City, and there he testified as follows, in answer to his own counsel:

“Q. You do know the defendant?
“A. Yes, sir.
“Q. You married his mother?
“A. Yes, sir.
“Q. He is your stepson?
“A. Yes.”

That in a foreclosure suit brought in the State of New Jersey, in 1899, by Michael Keavey against Martin Barrett and others, Martin Barrett, on January 25th, 1900, swore to a petition in which he said, “he made arrangements with the complainant, Michael Keavey, who is the stepson of your petitioner,” to settle a “claim which Rohe Brothers had in connection with his daughter-in-law, Kate Barrett, the wife of his son William.” And again, on January 25th, 1900, he verified an affidavit in that cause containing the following: “This deponent was utterly unable to obtain the money without assistance and trusted in his stepson, the said Michael Keavey to do so.”

Catharine Barrett, on January 24th, 1900, made an affidavit in the same cause, saying:

“that she was in great distress and went to her father-in-law, the said defendant, and he agreed to sell the property No. 126 Weehawken street, in order to settle the matter; that this deponent did not know who to go to at first, but went to her husband’s half-brother, the said complainant, Michael Keavey, and he proposed to take the property, No. 126 Weehawken street, and settle the matter.”

A further affidavit in the same cause was made by her on January 29th, 1900, in which she says:

“She is the widow of William Barrett, who was the son of Martin Barrett, one- of the defendants in this suit; that the said Michael Keavey is the stepson of the said Martin Barrett.”

This evidence satisfies me, as I have before stated, that Martin Barrett’s evidence is entirely unreliable, and that no confidence should be placed in it by a judge.

No proof worthy of the name, other than that of Michael Barrett, was offered to show that his wife married him by the name of Bridget Maloney; no entry in the church-books or record of marriages was produced in support of it, nor any certificate of marriage. A female, who, at the time of the marriage, was about five or six years old and lived with her parents in Brooklyn, who appears to have been acquainted with Mrs. Barrett, swears that she recollects of Mrs. Barrett, before her marriage, being called Bridget Maloney. This evidence is open to the remark that it is the recollection of a single individual of what occurred when she was a little child, and therefore to be received with great caution; and in the second place, that, under the circumstances presently to be stated, it would not be surprising if Mrs. Barrett, then very young, was, before she married Barrett, called by her maiden name, though really a widow.

In opposition to this evidence, the complainant swears that he learned from his mother that he was born on January 12th, 1849, in the town of Kilrush, County Clare, Ireland, a small seaport town on the Shannon river, a few miles west of Limerick; that his father died when he was an infant, and that when he was two or three years old his mother emigrated to the United States, leaving him with his grandmother Maloney; that he lived with her until he was thirteen years old, which brought him to the year 1862, when his grandmother received money from his mother and stepfather to forward him to this country; that he came here in the care of two or three other male emigrants, and brought with him a large chest of clothing, in which was clothing for his stepfather, Martin Barrett; that he was met at the ship by his mother and stepfather (the defendant Martin), taken to their house, and lived with them from that time on—first while going to school, and afterwards made his home there when working out, sometimes sleeping and boarding away; that he was finally apprenticed to a tinsmith, acquired his trade, and then, when ho became of age, went to Chicago and lived there some time, was there married, returned to the east, his wife refusing to live with him; that they had one child, which she kept until she died, when he took it; went into business for himself in New York City—opened a shop there—made his home in Hoboken, with his mother and stepfather, until he' built himself a house there, married a second time, and lived there with his second wife and his child by his first marriage; that, before he married the second time, and while he was living east separate from his first wife, he made his home with Martin Barrett and his mother, during her lifetime, and with Martin Barrett after she died.

As I have before stated, he is supported in all that occurred in the United States by the evidence of several witnesses, who swear to this state of things, and to Martin Barrett’s speaking of him as his stepson and introducing him to persons as such. I can see no reason why I should not give to the complainant’s sworn statement the ordinary credit due to an intelligent, honest witness.

With regard to his origin in Ireland, he is supported by the evidence of three witnesses, all born and reared in 'Kilrush and who knew him there—two women and a man—who were from three to six years older than. he.

These witnesses are, first, Catharine Sloane, whose maiden name was Catharine Galvin. She was six years older than the complainant, and was related to him by marriage and knew him in Kilrush. She came to this country six or seven years before Keavey did, and when he was five or six years old. She saw him shortly after he landed, at Martin Barrett’s, in Mrs. Bridget Barrett’s lifetime; says that Keavey’s mother visited her quite regularly, and that she visited Mrs. Barrett quite regularly, at one time spending three weeks at their house. The witness says that she was, at the time of giving her evidence, fifty-seven years old, which would make her born in 1843, six years before Keavey. She says she frequently saw Keavey at 'his grandmother Maloney’s house, both before and after his mother came to the United States.

This witness is intelligent, and the dates she gives of the various transactions are consistent with each other.

Another witness is Mary O’Dea, whose maiden name was Mary Mahoney. She has known the complainant as long as she can remember; she knew his mother; saw him frequently in Kilrush; he lived close by her; he used to call to see witness’s mother there; recollects when his mother came to this country; saw complainant in Kilrush after his mother came to this country ; he lived with his grandmother and went to school from her place. She left Ireland' after Keavey and remembers Keavey leaving. This witness is fifty-four years old, about three years older than Keavey. She visited Mr. and Mrs. Barrett, and saw Keavey at their house.

A third witness is Denis McMahon, who swears that he came to this country in 1866—which is four years after the complainant came; that he knew the complainant from the time he was two or three years old, at Kilrush, when he was living with his grandmother; that he knew his mother, Mrs. Barrett, in Ireland, and that she was then living with her mother, his grandmother, about six- hundred feet from where he lived; that he had often talked with Keavey’s grandmother; that Keavey’s mother left Ireland before he did; that he often saw his mother in Jersey City after she married Barrett. This witness was born in 1842, and was seven years older than the complainant, and came here when he was twenty-four years old.

To this mass of evidence showing the identity of the complainant with the recognized child of Mrs. Barrett, little or no evidence in reply was given. Barrett himself was not put on the stand to explain or deny any of the overwhelming proof given to contradict his evidence.

As the case stands at this point there can be no doubt that the complainant was the child of Mrs. Barrett. She recognized him as such, and he was known as such in Ireland when an infant, and was treated by his mother in this country as her child.

The only remaining question is one as to his legitimacy. This does not seem to have been in the mind of either of the parties during the taking of the testimony. There is no direct proof of Mrs. Barrett’s marriage with Keavey’s father. The complainant, after this suit was brought, went to Kilrush and examined the records of the old Catholic church there, as he says, to find out “my birth and the marriage of my mother.” He went to see the priest of the parish at Kilrush.

“He told me to see the sexton of the church, who had been there longer than he. The name of that sexton was Thomas Mahoney; he told me he had gone over the books and found that the certificates of marriages and births were kept very irregularly until 1862 ; some of his own family were registered, while he, himself, and a brother, he could not find; he said that from 1844 to 1849 times were so troublesome that no records were kept. [It will be remembered that this was the time of the great famine in Ireland.] I went over the records with him; I found no record of the marriage of my parents, or of my birth or baptism; that is the only Roman Catholic Church in that town. My parents were Roman Catholics, and I am a Roman Catholic.”

He further swears that a new church was built in the place of the old church there when lie was a child.

The three witnesses who testify to knowing him in Kilrush speak of him as Michael Keavey. It appears, then, that he took some name other than that of his mother’s maiden name, which ivas Maloney.

He further SAvears that his mother told him that his father died Avhen he Avas an infant; and a Avitness by the name of Mary Farrell, who Avas a relative of complainant, swears that she knew the complainant, and knew him as the son of Mrs. Barrett; and further:

“I know that Mrs. Martin Barrett, was Keavey’s mother from what I heard my mother saying, about it. My mother is not alive.
“Q. What did you hear your mother say about it?
“[Question objected to. Question allowed.]
“Appeal [this appeal seems never to have been argued].
“A. I heard my mother say that when Keavey’s father died, his grandmother had taken him, Keavey, and raised him until he came to this country.”

The question, then, is whether, as against Martin Barrett, an inference of legitimacy can be fairly drawn from the bare facts that the child was bom of his mother and lived with her and his grandmother, and was known by the name not of his mother, but presumably of some man; that, so far as appears, he was never known and considered as a bastard; that his mother declared that his father died when he was an infant, and that he was recognized by the mother as her child, and by the only defendant whose rights are now under consideration, over and over again as a stepson.

In considering this question I think we must treat the rule of law as perfectly well settled, that under such circumstances every presumption must be made in favor of legitimacy. The old common law rule which excludes a bastard from inheriting from his mother under the old maxim that he is the “son of nobody,” is a harsh one at best, and has, in nearly all the states, been abolished, and his status as the “child of his mother,” with a right to inherit from her, been established by statute. I believe the only exceptions are New York and New Jersey. Here we give him his mother’s personalty if she leaves no other children.

The harshness of the rule naturally does, and I think ought to, incline the court to adopt1 every reasonable presumption against illegitimacy and in favor of innocence and chastity. Accordingly, we find that the books show that the presumption of legitimacy, aided as it is and must be in this case by a presumption of innocence and chastity, has been carried to great lengths. The presumption is strengthened in this case’by the death of both the father and mother; and that circumstance, of itself, has been held to preclude an inquiry into legitimacy. Com. Dig., tit. "Baron and Feme ” C. 6:

“So, a marriage cannot be drawn in question upon any collateral surmise, after the death of the parties. So, after the death of the husband, the marriage shall not be drawn in question, though the wife be alive. Nor after the death of the wife, though the husband be alive.”

And further, under title “Bastard” (B): “After the death of the parties, the marriage cannot he drawn in question to bastardize the issue.”

Many instances of the application of this presumption are given by Mr. Hubback in his treatise on Succession, and under the title of “Evidence” he states the rule that hearsay evidence and family repute, and the recognition of the issue as legitimate by the parents, is competent.

Then it must be borne in mind, as was shown by Sir John Nicholl in Steadman v. Powell, 1 Add. Eccl. 58 (at p. 64), that a valid marriage might be celebrated in Ireland in a private house without a license. Hence—he held—slighter proof of marriage was required in Ireland than would be in England after the enactment of the English marriage laws. That case—Stead-man v. Powell—was itself an illustration of the extent to which the court goes in presuming legitimacy. There was no direct proof of marriage in that case, nor any record of it, and it was alleged, and there. was some proof tending to show, that the parties to the marriage ceremony, if any was performed, were Protestants, and that it was performed (in Ireland) in a private room, without witnesses, by a- Catholic priest, and such a ceremony was declared to be absolutely void by *an Irish statute, and yet Sir John Nicholl sustained the marriage and gave administration of the deceased woman’s estate to her alleged husband, in the face of a will which she made as a single woman. In that case he emphasizes the maxim—semper preesumitur pro matrimonio.

I shall not attempt to cite all the authorities, but mention a few. A leading and important case is Piers v. Piers, 2 H. L. Cas. 331. The complainants in that case—two females—claimed to be heirs-at-law born in wedlock of Sir John Bennett Piers, an Irishman entitled to an Irish estate. In his youth he had run away with an Irish actress, and lived with her in open adultery in the Isle of Man, and had several children by her besides the complainants. Previous, however, to the birth of the two complainants, who were his youngest children, there was evidence tending to show that a ceremony of marriage between him and his wife Was performed, on a certain day in his private house, by an English clergyman, who was shown to be a man of dissolute habits and bad character. The statute of the Isle of Man rendered that marriage absolutely void, unless performed under a special license of the bishop. The person then bishop after-wards became bishop of Rochester, England, and swore positively that he never granted any such license; gave as a reason that he would not have done so, because he knew that Sir John Piers was living in. open adultery with the alleged wife. No record of the marriage or of any license could be found. The lord chancellor of Ireland held, upon those proofs, that the marriage was a nullity. But the house of lords, advised by Lords Cottenham, Brougham and Campbell, unanimously reversed that decision, and held the presumption of law in favor of the marriage was so strong as not to be overcome by such proof. Lord Campbell uses language (at p. 380) which I will quote: “My lords, my opinion is that a presumption of this sort, in favor of a marriage, can only be negatived by disproving every reasonable possibility. I do not mean to say that you must show the impossibility of any supposition which can be suggested to support the validity of the marriage; but you must show that this is most highly improbable, and that it is not reasonably possible. * * . * My lords, to avoid such a peril, the law requires that, you should negative every reasonable possibility.” And one reasonable possibility which he said was not negatived was that the previous bishop of Man might have granted a license years before the ceremony, which Sir John Piers held in his pocket until his wife again became enceinte. He further uses this language: “In the first place, I must draw your lordships’ attention to the presumption of law which requires a judge not to exercise his own private notion or to indulge in his own private opinions upon the subject, but to believe that everything was solemnly and eilectively done.” Then, speaking of the speculation as to whether or not a license might have been granted by the previous bishop, he says (at p. 383) : “Your lordships will also bear in mind that I am not bound privately to believe either one speculation or the other. The question is, are they all satisfactorily negatived ? I am not bound to believe that Dr. Origan granted the license; but it is possible that he may have done so, and that possibility is enough for me to act upon, if it is not satisfactorily negatived.”

The statement of the law made by Lord Lyndhurst, in Morris v. Davies, 5 Cl. & F. 265, was adopted. Speaking of the presumption of law in that connection, he says: “It is not to be broken in upon or shaken by a mere balance of probability; the evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.” Applying that rule to the case in hand, I am bound to presume that Mrs. Barrett, then Miss Maloney, was married to the father of complainant before the latter was born. Such a fact is not only “reasonably possible,” but highly probable.

Other cases are Wilson v. Hill, 2 Beas. 143; Fenton v. Reed, 4 Johns. 52; In the matter of Taylor, a Lunatic, 9 Paige 611; Campbell v. Campbell, L. R. 1 H. L. Cas. (Sc. App., 1867) 182 (Breadalbane Case), and De Thoren v. Attorney-General, L. R. 1 App. Cas. 686 (1876). These and other cases were referred to by me in the case of Stevens v. Stevens, 11 Dick. Ch. Rep. 488.

There is nothing in the famous case of Voorhees v. Voorhees, 1 Dick. Ch. Rep. 411; S. C., 2 Dick. Ch. Rep. 315, 555, which affects the present ease. The court there simply held that where a cohabitation between a man and woman commenced and was founded upon a ceremony of marriage which was rendered void by reason of incapacity of one of the parties to contract, the court would not presume a second marriage, after the incapacity was removed, from the mere continuance of the cohabitation.

Besides these, I am indebted to counsel for complainant for the case of In the matter of Matthews, 153 N. Y. 443, which is much in point, and where some of the older cases, including Caujolle v. Ferrie, 26 Barb. 177, are. cited. The Matthews Case was a contest between the children of a deceased half-sister of the decedent and the children of her brother of the whole blood. The half-sister was-the child of the mother of the decedent, born of her before her marriage with the father of the decedent and of the brother of the whole blood, so that it will be seen that the contest was substantially the same as that before the court in this cause. There was there no proof of the marriage of the common mother with the father of the half-sister. ' The surrogate held that the burden of proving that the half-sister was illegitimate was upon the brother of the whole blood, and that the absence of direct proof of marriage was not sufficient to sustain that burden. That ruling of the surrogate was affirmed by the appellate division of the supreme court of New York. In the matter of Sedbury, 1 App. Div. 231. The court of appeals affirmed that ruling, and said: “We are of the opinion that, it having been established that the respondent’s mother was a half-sister of the decedent, the law presumed that she was legitimate, and the burden of establishing her illegitimacy rested upon the appellants.” The learned judge also quoted Judge Cowen, in the ease of Starr v. Peck, 1 Hill 270; Judge Clerke, in the case of Caujolle v. Ferrie, 26 Barb. 177, and Judge Andrews, in the case of Hynes v. McDermott, 91 N. Y. 451, in which the presumptions I have referred to are all stated in the strongest manner. It is not necessary for me to repeat them here.

I am of the opinion that the pleas are not sustained by the proofs, and must be overruled, with costs.

I express no opinion as to whether the evidence already adduced is sufficient to maintain the issue as against the infant defendants, who have, by their guardian, filed the formal answers ■of want of knowledge, submitting themselves to the court.


text:
    Julia F. Baldwin, administratrix cum testamento annexo of Susan Baldwin, deceased, v. Caroline E. Trowbridge, Cordelia A. Ogden, William H. Baldwin, Cora Baldwin, Clark Fosdick, Paulding Fosdick, Jennie B. Childs and The New York Security and Trust Company, trustees under the last will of Charles B. Fosdick, deceased; and Cordelia A. Ogden, Julia F. Baldwin and Frederic A. Ogden, executors and trustees under the will of Susan M. Baldwin, deceased. William H. Baldwin and Cora Baldwin v. Clark Fosdick, Paulding Fosdick and Jennie B. Childs and The New York Security, and Trust Company, trustees under the will of Charles B. Fosdick, deceased.
    [Submitted November 19th, 1901.
    Decided November 23d, 1901.
    Filed December 21st, 1901.]
    1. Where testatrix directed her executors to hold realty for a period not exceeding ten years, and within that period to sell it and pay the proceeds in equal shares to her then living children, the share of any deceased child being paid to his issue, or, if without issue, divided among the children surviving at the time of such sale, the fund arising from a sale after the expiration of ten years should be divided as if the sale had taken place at the close of the ten-year period, so that the share of a child dying after the prescribed period, but before sale, should go to his representatives and net be divided among his brothers and sisters.
    2. Testatrix devised realty to the executor to hold in trust and sell within a certain period, and divide the proceeds between her then living children, the share of any deceased child to go to his surviving issue. The property was unproductive, and of little present worth, its future value depending largely on the ability of the heirs to hold it for market; so that one of testatrix’s daughters, whose husband was executor, bought the interest of a spendthrift brother, avowing her intention of holding such interest for the benefit of his children, subject to the amount she paid therefor. The children of this son were entitled to a share of the income of other property equal to the share of each of testatrix’s other children, and the executor paid the taxes on the trust property from this income.— Held, that the brother’s share was held in trust for his children.
    3. In a suit to construe a will, where heirs of one beneficiary filed a cross-bill against the executors of another, seeking to establish a trust in the share conveyed by their ancestor to such other beneficiary, evidence of other beneficiaries as to declarations of the grantee in the conveyance attacked was not inadmissible because by a party to the record against another p'arty in a representative capacity, since the cross-bill was, in effect, a separate suit.
    4. Where it was sought to establish a trust in land by showing that the property had been dealt with on the books of the alleged trustee as a trust estate, the signature of such trustee to checks drawn in pursuance to entries on the books which were made by his clerk was equivalent to a statement that his title was held on the basis shown by the books, and both together were sufficient to satisfy the requirement of the statute of frauds that a declaration of trust must be signed by the party.
    On bill for construction of will. On cross-bill for relief. On final hearing on bill, answers and proofs.
    The bill is filed by the administratrix cum testamento annexo of Susan Baldwin for the direction of the court as to the distribution of a fund in her hands of about twenty-one thousand dollars, which is the proceeds of the sale by her as such administratrix of' a tract of land in the county of Bergen, in the State of New Jersey, of which the testatrix, Susan Baldwin, died seized.
    The bill is in the nature of an interpleader, and the issues under it are raised by the answers of the several beneficiaries under the will, or their legal representatives.
    The testatrix died in the month of July, 1881, domiciled in New York City, leaving six children, namely, Mary E. Eosdick, wife of Charles B. Eosdick; Caroline E. Trowbridge, Cordelia A. Ogden, Julia E. Baldwin (the complainant), Susan M. Baldwin and David W. Baldwin. Of these David W. Baldwin died intestate in 1891, leaving him surviving the defendants William PL Baldwin and Cora Baldwin.
    Mary E. Eosdick died about November 1st, 1895, leaving her husband, Charles B. Eosdick, and two grandchildren, Clark Fosdick and Paulding Fosdick, who are defendants herein, and by her will devised all the residue of her estate to her husband, Charles B. Fosdick, who died in April, 1897, testate of a will of which the said Paulding and Clark are the beneficiaries, and Jennie B. Childs and the New York Security and Trust Company are the trustees.
    David W. Baldwin, on the 29th of December, 1883, about eighteen months after the death of his mother, conveyed all his right, title and interest in the real estate in New Jersey to his sister, Mary E. Fosdick.
    Susan M. Baldwin died on the 22d of January, 1900, unmarried, leaving no issue, testate of a will, of which the defendants Cordelia A. Ogden, Julia F. Baldwin and Frederic A. Ogden are executors and trustees.
    The questions to be solved, and upon which the complainant asks the advice of the court, arise under the ninth clause of the will of the testatrix, which is as follows:

      “Ninth. All my real estate, situate in the State of New Jersey, I give and bequeath to my executors hereinafter named, in trust, to hold the same for a period not exceeding the term of ten years after my death, and within that period, in their discretion, to sell the same, and convert it into money, and pay over to my children, share and share alike, and in the event of the death of any of my children before such sale is made, then I direct that the share such child would have been entitled to shall be paid to his or her children, if he or she have any him or her surviving, and in the event of he or she leaving no issue, then such share to be divided equally between my surviving children at the time of such sale.”
    (There being a slight discrepancy between the language found in the record of the will in Bergen county and that in New York, the court was furnished with a sworn copy taken from the original will on file in New York City.)
    The sale of the premises took place in the month of July, 1900, several months after the death of Susan M. Baldwin, one of the beneficiaries.
    The three surviving children-—-Caroline E. Trowbridge, Cordelia A. Ogden and Julia E. Baldwin—contend that by the true construction of this clause no title vested in any of the beneficiaries until after the sale of the property; hence, that the share of Susan M. Baldwin, who died without children,, passed to them as surviving children of the original testatrix.

      This view is contested by the three executors of the will of Susan M. Baldwin.
    The executors and trustees under the will of Charles B. Fosdick claim that all the children' took a vested interest, at least after the lapse of ten years from the death of the testatrix, and that the share of Mary E. Eosdick passed, by her will, to Charles B. Fosdick, and under his will to them as trustees, while the two grandchildren of Mary E. Fosdick, Clark and Paulding Fosdick, claim the contrary, and that the share of their grandmother comes to them directly as her representatives. And to the same effect is the claim of William H. .Baldwin and Cora Baldwin, children of David W. Baldwin, who claim that nothing passed by the conveyance made by their father, David W. Baldwin, to his sister, Mary E. Fosdick.
    William H. Baldwin and ‘Cora Baldwin (children of David W. Baldwin) further claim, and set up by a cross-bill against the estate of Mary E. Fosdick and Charles B. Fosdick, that the conveyance by David W. Baldwin to Mary E. Fosdick, made in 1883, if effective at all as a conveyance, must be treated as a mortgage for certain moneys advanced by Mary E. Fosdick to their father, and that they are entitled to so much of the one-sixth share of their father as should remain after satisfying the moneys so advanced; and, further, by amendment, that if not a mortgage, then that Mrs. Fosdick held the title in trust for them.
    Evidence was adduced on these points.

      Mr. Milton Demarest, for the complainant.

      Mr. Charles L. Garrick, for the executors of the will of Susan M. Baldwin, deceased,, and Frederick A. Baldwin, beneficiary thereunder.

      Mr. Maximilian T. Rosenberg, for Caroline E. Trowbridge and Cordelia A. Ogden, and for William H. and Cora Baldwin, children of David W. Baldwin.

      Mr. John M. Dickinson and Mr. Dugene D\ Hawkins (of the New York bar), for the trustees of Charles B. Fosdick and for Clark and Paulding Fosdick.
   Pitney, V. C.

No question is or can be raised as to the efficiency of the sale and conveyance of the premises by the substituted executor after the expiration of the ten years’ limit fixed by the will. The circumstances forbid it.

There is, however, nothing in the will to indicate that the testatrix had in mind a postponement of the sale beyond ten years. The language, “not exceeding ten years,” is quite significant on this point.

The construction of the clause in question is not difficult. It gave each of the six children named a present equitable estate in fee-simple in the premises in question, subject to the power of sale for ten years, and subject to be divested if either one died before such sale.

The effect of the exercise of the power of sale within the ten years would have been simply to compel the beneficiaries to take the proceeds of such sale instead of the land itself. In the meantime it is quite clear that the rents and profits, if any, belonged to the holders of the equitable title. There is no glimpse of an intention to give those rents to the executors as individuals, or to have them accumulate until the sale. The executors held the bare legal title for the purpose of managing the land, and for sale.

Two questions arise—first, Susan M. Baldwin having died without children long after the expiration of the ten years limited by the will and about six months before the actual sale, did her share go over to the surviving children or to the beneficiaries named in her will ? This depends upon the force of the words “such sale” in the clause which I quote:

“In the event of the death of any of my children before such sale is made, * * * leaving no issue, such share [share of the child so dying] to be divided equally between my surviving children.”

I am of the opinion that the words “such sale” so used must be held to refer to a sale within the ten years’ limil. That was the sale, and the only sale, which ivas in the testatrix’s mind. Besides, the disposition of the courts is to terminate as soon as practicable such limitations. To adopt a different construction in tbe present instance is to put it in the power of the trustees to postpone the limit indefinitely. I am' of the ojfinion that the share of Susan M. Baldwin must go to her personal representatives for the purpose of her will.

And this conclusion disposes of the claims of the grandchildren of Mrs. Fosdick to take directly as her representatives instead of through their grandfather’s will; and also of the claim of William H. and Cora Baldwin to take their father’s share because he died before the sale of the land, although he survived the limit of ten years.

The second question, arising under the cross-bill of David W. Baldwin’s children, is as to the character of the conveyance made by David W. Baldwin to his sister, Mrs. Fosdick. The facts surrounding and succeeding that conveyance are as follows: The testatrix was a domiciled resident of New York City and owned productive real estate there situate. By her will, after some .specific bequests of chattels, she divided her personal estate equally among her children. But her real estate in New York, by the tenth item, she gave to her executors in trust to divide and pay over the net income thereof in six equal shares to five of her children, naming them (and excluding her son David W. Baldwin), and to Sarah Jane, wife of David W. Baldwin, and after their death to their children.

The result of this provision was that David W. Baldwin was excluded from any share in her estate, except in her personalty and in the New Jersey lands here in question. He was, in fact, a spendthrift, and might be tempted to convey to some stranger his interest in the New Jersey land. The intervention of a .stranger to a share in the title to that land might embarrass the other brothers and sisters in their management of it; and a sale by David would probably be made for a small consideration, to the pecuniary injury of both himself and his children, if made before the property was sold, or before the lapse of t.en years; for, of course, no stranger would pay anything like the value of his interest in the lands when the realization of anything under it would depend upon the duration of his life; and if he survived the ten years’ limit, his children would be entirely cut off.

The New Jersey property produced no income, was of speculative value, and much depended upon the ability of the parties to hold it for market.

The result of a consideration of this situation was that Mrs. Fosdick bargained with David to take from him an absolute conveyance of his interest in the New Jersey property at the price of $960, payable in monthly installments of $20, and in pursuance of that bargain he made to her the conveyance of December 29th, 1883.

Mrs. Fosdick’s husband was a member of a firm of merchants, and it appears, by entries on the books of the firm, verified by the evidence of Mr. Fosdick’s confidential clerk and bookkeeper, on his personal knowledge, that the payments so contracted for were periodically made by Mr. Fosdick and charged to his (Fosdick’s) wife. The payment of $20 per 'month was continued to October, 1885, and then, by mutual agreement, it was increased to $30 per month, until the whole sum of $960 was paid, March 1st, 1887.

David W. Baldwin died, as we have seen, in July, 1891. His wife died before the testatrix.

It also abundantly appears, by parol evidence—that of the two sisters, defendants herein-—that Mrs. Fosdick declared and intended, at the inception of this transaction and thenceforward, to hold this share to secure her for the amount so paid to David, and the balance for his children. This was openly declared by her, and was well known to all the sisters.

Moreover, it appears that the share so conveyed was subsequently treated by the Fosdicks as belonging to David’s children. The New Jersey property, as we have seen, produced no income, and was a constant source of expense in the way of taxes, &c. These expenses were paid by Fosdick, as executor of the will of Mrs. Susan Baldwin,- out of the income of the New York property, and regulary charged to that account on his books of account of his dealings with the estate, and the amount divided each year as net income under her will was thereby so much reduced, and the share of that net income paid to the children of David W. Baldwin was proportionately diminished, so that the taxes and expenses paid on the share of David W. Baldwin so conveyed to Mrs. Eosdick were, in effect, from the start, paid by his children. This is a most significant circumstance, and shows, as it seems to me, that this New Jersey property was treated and considered, at all times, by the Eosdicks as the property of David and his children, in all respects as if the conveyance by David had never been made.

The books of accounts kept by Eosdick, as executor, were produced, showing these entries made by his confidential clerk, by his direction; and the cheeks drawn and signed by Eosdick for these’payments, at stated periods, covering the whole period in question, including the period between the death of Mrs. Eosdick and that of her husband, during which the latter was vested with the title as her devisee, were also produced. They correspond, in amount and date, with the like payments made in the same manner to the other devisees. Regular dividends out of the net income were made, at stated intervals, among the beneficiaries.

The result is that if the parol proof of Mrs. Eosdiek’s declarations, in connection with the mode of dealing with the property conveyed to her, as manifested by the entries in her husband’s books and checks signed by him, are competent, under the statute of frauds, the situation set out in the bill, or its equivalent, is fully established, namely, that Mrs. Eosdick held David’s share either as mortgagee to secure her for the moneys she advanced to David, with the understanding that the balance should go to his children, or as trustee for his children for that balance.

Objection was duly made by counsel of the executors of Eosdick against the evidence of the two sisters, defendants, who testified to Mrs. Eosdick’s declarations, because it was in contravention of the statute of frauds, and also because given by a party to the record against a party thereto in a representative capacity.

I will deal with the last objection first. The issue as to the character of that deed is raised upon a cross-bill filed by the children of David against the executors of Eosdick, and an answer is prayed against them only, and they only have answered. That cross-bill is, in effect, an independent suit, and may be maintained without making anyone but the Eosdicks parties thereto. The other parties to the suit are not parties to that issue, and are not in anywise interested in it. They have, in fact, admitted the allegation in the bill that the conveyance was made by way of mortgage. It was upon the issue raised'by this cross-bill that the evidence of the two sisters was introduced. Thus it seems plain that the evidence of these witnesses is not within the spirit of the act which prohibits a party to a suit to testify to declarations made by a decedent against his representatives. And I am also of the opinion, without going over the numerous cases in which the courts have been called upon to -construe the act in question, that it is not within the letter of the act, and is competent.

The question as to the competency under the statute of frauds of the evidence to establish the interests of the complainants in the cross-bill is not so clear.

It is abundantly established that a deed absolute on its face may be shown by parol evidence to be a mere mortgage, and the disposition of the courts is always to give effect to every business transaction -precisely as the parties intended.

But the difficulty in the present case is that the proofs do not show that the parties intended the conveyance to be a mortgage in the ordinary and proper signification of the term. It does not appear that either the grantor or grantee looked upon the money advanced to him as a loan. Still, it is quite clear that the grantee did hold the title as securitjr for the money she advanced to the grantor, and that she held the balance for the benefit of his children, and this gave them a right of redemption.

Another circumstance is the relation to the property which was always accorded to David’s children by • Mrs. Eosdiek’s husband, who was the acting executor of the will of Susan Baldwin, and who, after the death of his wife, was the executor of and sole beneficiary under her will. For, as before remarked, it is clearly proven that after the conveyance in question the practice of Mr. Fosdick was to charge the expenses of maintaining the New Jersey property against the rents of the New York property, and thus, in effect, compel the children of David to pay their share of the cost of maintaining the New Jersey property.

It must be said in this connection that the books of account show no charge for interest on the consideration money of $960 paid to David W. The death of the parties to the transaction prevents an explanation of this circumstance; but I think that this failure to charge interest cannot be claimed as in anywise affecting the significance of the other circumstances just referred to.

The statute of frauds requires a declaration of trust of lands to be signed by the party. The entries in the books of account just referred to are not in the handwriting of Fosdick, but, as we have seen, in that of his clerk, made by his direction; but the checks, which, as we have seen, correspond with the amount of the dividends, are signed by him. And the question is whether or not his signature to the checks may not be properly treated as a signature to all the entries in the books. I am of the opinion that it may, and that the checks so signed by him amount to a declaration that the title to these premises was held by him on the basis shown by his books, and that is, that the share of the children that was conveyed by David to Fosdick’s wife, and by her devised to him, was, in equity, the property of David’s children, and, if so, then the legal title was held in trust for them.

I will advise a decree according to these views. The share of David’s children will be subject to the payment to the Fosdicks of the sum of $960, with interest from the average date of the several payments making up that sum. The costs of the complainant, and each of the defendants, except the cost of the cross-bill and answer thereto and the testimony' taken thereon, will be paid out of the fund, and no costs will be recovered by either party against the other.


author: Pitney, Y. C.

text:
    Thomas E. Lindsley, James D. Lindsley and Mary Temple v. Thomas B. McGrath.
    [Submitted April 12th, 1901.
    Decided October 19th, 1901.
    Filed December 21st, 1901.]
    1. Where, in a suit to quiet title, defendants fail to show any deed to the premises, but show a contract for the purchase of the land by them, and that the holder of the title accepted from them payment of the consideration money, it is evidence of an equitable title in them.
    2. Where, in a suit to quiet title, defendants fail to show any deed to the premises, but it appears that the owner of the premises accepted from defendants payment in cash and by a bond and mortgage on the premises, the owner's representatives are estopped from setting up a legal title as against the defendants’ equitable one.
    3. Where the issue was whether land occupied by husband and' wife was that of the husband or of the wife, the wife being deceased, it was proper to admit evidence of declarations made by her to show that she claimed the title to the land.
    4.. In a suit to quiet title, the issue was whether a certain deed from the one under whom both defendants and the plaintiffs claimed was made to one whom complainants claimed as their grantor, or to the one whom defendants claimed as their grantor.—Held-, that the evidence was insufficient to sustain complainants’ contention.
    5. The will of one who owned certain notes secured by a mortgage on land bequeathed a certain sum to each of the children of the mortgagor. The will provided that, if the indebtedness from the mortgagor should not be paid, the same might be set off against the legacies to the children, and this was done. The mortgagor had a claim which was allowed by the testator’s executor and set off against the amount due on the notes.

      ■—Beld, that the children were entitled to be subrogated, to the extent of their legacies, to the rights of the testator as mortgagee of the premises, so as to clothe them with an equity prior to that of one who was the equitable owner.
    Heard on. bill, answer, cross-bill and replication to cross-bill.

      Mr. James II. Neighbour, for tbe complainants.

      Mr. Ford D. Smith, for tbe defendant.
   Pitney, Y. C.

The complainants, Thomas E. Lindsley, James D. Lindsley and Mary Temple, are brothers and sister, and file their bill to quiet title to a tract of about fifty acres of land situate in the township of Jefferson, Morris county, which they allege to be in the possession of their tenant.

The defendant files his answer and cross-bill, in which he avers that he was, at one time and until recently, in possession through a tenant, but that recently the complainants had induced the tenant to attorn to them, so that the complainants are in possession.

Both parties claim through one J acob L. Eichter, or, as he was sometimes called and sometimes signed his name, Jacob Eichter, who lived and did business in the village of Eockaway, Morris county, about ten miles from and south of the premises.

The complainants, by their bill, deduce their title as follows: A deed of conveyance from J acob L. Eichter and wife to Sarah L. Lindsley, dated February 8th, 1858; the death of Sarah L. Lindsley seized of the premises and intestate, in December, 1866, leaving her husband, Stephen A. Lindsley, surviving, and the three complainants and four other brothers and sisters her heirs-at-law ; and the death of four of the heirs of Sarah L. Lindsley intestate and without children, by which their title by descent was east upon the three complainants as their heirs-at-law.

The defendant sets out his title as follows: A contract of sale, entered into between Jacob L. Eichter and Stephen A. Lindsley on December 6th, 1852, to convey the premises in question to Stephen, for the consideration of $900, of which $200 in cash was then paid, $200 further was to be paid on May 27th, 1853, and the balance to be paid by a mortgage of $500; that the second sum of $200 was paid on or about May 27th, 1853, and that, on the day last named, Eichter and wife conveyed the premises. to Lindsley by a good and sufficient deed of conveyance, and that Lindsley and wife executed and delivered to Eichter a mortgage, dated that day, to secure the balance of the consideration money.—$500—in sums of $100 a year for five years, as witnessed by five promissory notes for that amount made by Lindsley to Eichter; that that deed was never recorded, and is lost; that afterwards Lindsley paid the whole or some part of the money secured by said mortgage; that the making of said deed of conveyance from Fichter,to Stephen A. Lindsley was well known to his wife Sarah L. Lindsley, and that she took a deed of conveyance, on February 8th, 1858, from Fichter, without consideration paid, and with full knowledge of the prior conveyance to her husband, and without her husband’s consent; that after the death of Sarah L. Lindsley her husband married one Mary Vermeule; that he and his second wife remained in possession of the premises until 1897, when he died, having left a last will and testament, in which he gave the whole of his property to his widow, Mary Lindsley; that the estate of Stephen A. Lindsley became indebted to the defendant, McGrath, who was an undertaker, for the expenses of the funeral of the said Stephen A. Lindsley, and that the widow made a deed* of conveyance to him (McGrath) to secure him for such indebtedness.

The complainants’ answer to the defendant’s cross-bill sets up and claims that the lost and unrecorded deed of conveyance, alleged by the defendant to have been made on May 27th, 1853, by Fichter .to Stephen A. Lindsley, was, in fact, made to the said Sarah L. Lindsley.

Upon these pleadings the cause was brought to a hearing upon evidence; and the following facts appeared:

That Lindsley was a carpenter and builder, who lived with his wife on the premises in question at and before December 6th, 1852, and that she bore him the children mentioned in the pleadings, and that four of them died intestate, as stated in the bill; and that the defendant acquired his title under the will of Stephen Lindsley and the deed of Stephen Lindsley’s second wife, an aged lady, who still survives, and has one son by her husband, Stephen Lindsley.

It appeared that Sarah L. Lindsley, the first wife of Stephen A. Lindsley, was a sister of the wife of Jacob L. Fichter, from whom both parties claimed, and that the two were the daughters of David Estill, an old gentleman of some means, who lived near the premises in question.

Lindsley’s family lived, as we have seen, on the premises in question, and Jacob L. Fiehter, the grantor, was a merchant and lived with his wife in Rockaway, ten miles south from the premises. Lindsley did not live happily with his first wife, and his trade carried him away from home a good deal of the time, and sometimes for a month or a year. The premises were then, and still are, of little.value.

The defendant produced a receipt, admitted to be in the handwriting of Eiehter, dated December 6th, 1853, in the following words:

“Received December 6th, 1852, from Stephen A. Lindsley, two hundred dollars, being one payment on my farm, price stated in deed.
“$200. Jacob Fichter.”

Further, he produced another receipt, also admitted to be in the handwriting of Jacob L. Fiehter, as follows:

“Received May 27th, 1853, from Stephen A. Lindsley, two hundred dollars, being 2d payment on my farm, price stated in deed.
“Jacob Fichteb.”

He then produced a canceled mortgage, covering the land in question, made by Stephen A. Lindsley and Sarah L. Lindsley, his wife, to Jacob Fiehter, dated May 27th, 1853, in the handwriting of and acknowledged before Horace Chamberlain, a commissioner of deeds, who has been dead several years. It is witnessed, however, by Stephen Strait, also deceased, a well-known citizen of Jefferson township. Mr. Chamberlain is known to the court (and the knowledge of the court was taken by the parties at the hearing instead of proof) to have been a surveyor and conveyancer of considerable repute for care and accuracy, who lived in the neighborhood of these lands.

The consideration named in the mortgage was $500, and it was conditioned to pay

“$500, according to five promissory notes for the sum of $100 each payable to Jacob Ficbter or bearer, in one, two, three, four and five years from date, with interest from date, and bfearing date on the 27th of May, 1853.”

The description of the property, which is in two tracts, is not by metes and bounds, but by reference to adjoining owners, and to the record of a deed to Edward Condict, who was Eichter’s grantor, but not to the conveyance to Eiehter; and the mortgage itself does not refer to any cotemporaneous or other conveyance made by Eiehter to Lindsley; and the only legal proof offered by defendant of the making of a deed at that time is what is contained in the two receipts for $200—each in the handwriting not of Mr. Chamberlain, but of Mr. Eiehter himself, and which says that the payments are made “on my farm, price stated in deed,” and the execution and delivery of the mortgage.

The defendant also produces the five promissory notes referred to in the mortgage in question, which appear to have been all written on one sheet of paper, in the handwriting of Mr. Chamberlain, and signed by Stephen A. Lindsley.

The production of those notes would be prima facie proof that they were paid by Lindsley, but there is other evidence in the case, presently to be referred to, which indicates that only two of them were so paid.

It is further proven or admitted in the case that Jacob L. Eiehter became pecuniarily embarrassed' in the year 1858, at or shortly before the time of the making of the deed (under which the complainants first relied in their bill) by him, Eiehter, to Mrs. Lindsley; that he shortly afterwards made an assignment for 'the benefit of his creditors, and that the deed of 1858 was made to prevent complications which might arise from the title appearing to be in him and included within his assignment. That deed, the record of which is produced, is one of bargain, sale and quit-claim, and with no covenants, except against the grantor; and no proof was offered, nor does anything appear in the case from which it can be inferred that any consideration whatever was paid for it.

So far, the case shows no passing of the legal title from Jacob L. Eiehter to Stephen A. Lindslejq but it does, in my judgment, in the absence of any conveyance, show that the equitable title passed to him. The holder of the title accepted from him payment of the consideration money, partly in cash and partly by a bond and mortgage on the very premises; that conduct on the part of Fichter seems to me to estop him and his representatives from setting up his legal title as against Stephen A. Lindsley’s equitable title.

But the complainants, to meet this case and by way of abandonment of that part of their bill which claims under the deed of 1858, assert in their answer to the defendant’s cross-bill that the deed made in 1853, or about that time, was actually made and delivered to Sarah L. Lindsley, and not to her husband; and in support of that position they offer in evidence a memorandum book, proven clearly to have been kept by Horace Chamberlain, and in his handwriting, purporting to be a memorandum of the various deeds, mortgages and other instruments acknowledged by him while holding the office of commissioner of deeds, kept in tabular form.

The admission of this book was objected to and resisted by the defendant, and, upon consideration, I am unable to find any safe ground for receiving it. It is not a record kept in pursuance of any official duty, or of any practice adopted by such officers, but merely for his private use individually. The cases on this subject are collected by Dr. Wharton in his book on Evidence, sections 226-251, inclusive. Among them I can find none that quite reaches the present case. The book is, in effect, merely a diary. However, I shall consider the cause as if it was competent evidence for what it is worth.

The entry in that book relied upon by the complainants is as follows: “1853 May 27 Fichter Jacob & wife Sarah L. Lindsley Q Decern 7 900.00,” and over “7” is written “1852,” and under “Decern 7” appear the figures “1853.” The words “1853 May 27” are under the words “Date of acknowledgment;” the words “Fichter Jacob & wife” are written under the word “Grantors;” the words “Sarah L. Lindsley” are written under the word “Grantees,” and the' letter “Q” stands for quit-claim. The figures “1852 Dec. 7 1853” are under the heading of “Date of,” and the “900.00” under the word “Consider.” This indicates that the conveyance was dated December 7th, 1852, and was a .quit-claim.

Now the record of the deed under which the complainants claim in their bill is entered in this book in this wise: “1858 Feby 8 Fichter Mary A. -Sarah Lindsley Q 1858 Feby 8 900.00.” That is clearly erroneous, because the deed was made by Jacob L. Fitcher and his wife, Mary A. How it happened that Mr.' Chamberlain made such an entry is not easily explained. It was not accidental.

The mortgage which has been offered in evidence is correctly entered on his book.

Admitting, however, that the deed was so prepared and executed by Jacob L. Fitcher, there is no proof that Stephen A. Lindsley was present at the time the deed was executed, or that he knew of its contents, or that he ever accepted it as an execution of his contract made on December 6th, 1852; and this is accentuated by the fact that if it ever came to his possession he refused to permit it to be recorded, and undoubtedly destroyed it.

But the complainants further rely upon the evidence of a Miss Maines. She was called to testify to a conversation which she had with the first Mrs. Stephen A. Lindsley a short time before she died. The evidence of the declarations of the first Mrs. Lindsley was competent only to this extent: the complainants of course relied, in order to rebut the effect of the long possession and occupation by Stephen A. Lindsley after the death of his first wife, upon the circumstance that he was in possession as tenant by the curtesy, and that such possession was not adverse to the title by remainder in his children by his first wife; and the defendant, in order to fortify his case in that respect, proved declarations by Stephen A. Lindsley while in possession that he claimed to be the owner of the premises absolutely, and not as a mere life tenant.

Now, the evidence of declarations made by Mrs. Lindsley were admissible to show that she claimed to be the owner, in her own right, in her husband’s lifetime. At least, they were so admitted by me, and were not objected to by the defendant. I will, however, consider them as if competent evidence.

The substance of Miss Maines’ evidence was that Mrs. Lindsley, a short time before she died, declared to her that there was actually a deed from Fichter and wife, made and executed in 1853, and that it was made to her and not to her husband, but that her husband was mad because it was so made, and never would permit it to be put on record; that at one time when he was leaving home for an extended period he took the deed and promised to stop in Morristown and have it recorded, but never did, and that she afterwards procured the later deed from her brother-in-law, Jacob L. Eichter; that Eichter came to her and asked if the deed had been recorded, and proposed to make a new one.

Taking the statements of Mrs. Lindsley to be competent evidence of the facts stated, it still appears that Stephen A. Lindsley never did consent that the title should go to his wife—refused to the last to acquiesce in that arrangement'—and hence never meant to make a' gift of the property to her.

Against that position stands the fact, according to the memoranda in Mr. Chamberlain’s book, that on the same day that the lost or destroyed deed from Eichter to Mrs. Lindsley was executed, Lindsley and his wife appeared before Chamberlain and acknowledged the mortgage upon which the defendant relies; and there is no doubt that the two papers constituted one transaction, and that the ordinary inference would be that they were exchanged at one time, and that Lindsley knew that his wife’s name, and not his own, was inserted as grantee in the deed, and that the execution of the mortgage in that shape and the acceptance of the deed were a ratification by him of the conveyance to his wife.

But all the circumstances must be taken together. It is common knowledge that such transactions are often carried through on the same day without the parties actually meeting. The execution of several papers may occur at different hours of the same day; and that may have happened in this case, and there are circumstances which indicate that it did happen.

In the first place, if Eichter and his wife and Lindsley and his wife both appeared at the same time before Chamberlain, why was any receipt given and signed by Eichter for the payment of $200 on that day ? And why was it in the handwriting of Eichter, while the notes and mortgage were in the handwriting of Chamberlain ? Then, again, the language of the two receipts is precisely the same—the first one being, “One payment on my farm, price stated in deed;” and the other being, “Second payment on my farm, price stated in deed.” ■ Now, the receipt for the first payment is dated December 6th, and as it is in Fichter’s handwriting, there is every reason to believe that it was made at his store in Bockaway, and it is plain that the receipt was all written at one time. But the memorandum in Chamberlain’s book shows that the deed was dated December 7th, so that the deed was not prepared at the time that first receipt was signed, and there is, therefore, no reason to suppose that Mr. Lindsley saw it at that time. The presumption is that Fichter had it prepared after the payment on December 6th. And when we come to the second receipt we find it to be in precisely the same language, and referring to the deed in the same way; and, as before remarked, I can see no occasion for the giving of that receipt if it was precisely eotemporaneous with the execution of the deed. And, in turn, I am unable to infer against Mr. Lindsley that he saw and examined the deed at the time of paying the second $200.

A more probable theory of the transactions of that day is this: That Mr. Lindsley, having accumulated the $200, and being ready to close the transaction, procured Chamberlain, who lived near him, a day or two before the 27th of May, to prepare the mortgage, and he and his wife went to Chamberlain in the morning of that day and acknowledged it, then he himself went to Bockaway, paid the money to Mr. Fichter, took his receipt, informed him that the mortgage was executed, and requested him to make the deed; that he then took the railway train to go to his work, wherever it may have been; that Fichter went immediately) with his wife, to Chamberlain’s house and acknowledged the deed already prepared.

There is no proof that Chamberlain prepared this lost deed, but the indications are the contrary. If he had done so and had it in his possession at the time the mortgage was executed, I see no reason why a careful conveyancer like him would have omitted reference in the mortgage to that deed, instead of, referring, as he did, to an old deed. Besides, it is plain that he did not have before him the deed under which Fichter claimed when he prepared the mortgage. That deed was made by Edward Condict and wife to Fichter on April 13th, 1840, and described the property not by metes and bounds, but by adjoining owners, and declares that it is the same premises conveyed to Condict by Benjamin and John Chamberlain by deed dated January 18th, 1840, with a reference to the record. -

Now the mortgage contains precisely the same description as that contained in the deed from Condict to Fiehter, and, as before remarked, does not-mention that conveyance.

All these circumstances—the date of the deed from Fiehter to Lindsley, as shown on Chamberlain’s book; the giving of the second receipt for $200, on the 27th of May; the peculiarity 'of the description in the mortgage from Lindsley to Fiehter, showing that it was probably prepared and executed before Chamberlain saw the deed, and the fact that when Lindsley discovered that the deed was made- to his wife and not to him he refused to record it and destroyed -it—tend to show that it was so made without his knowledge and consent, and that he never acquiesced in it. As Fichter’s wife was the sister of Mrs. Lindsley it is easy to perceive that Fiehter would assist in having the title so placed.

It may be asked, why did Lindsley, after he learned that the deed was made to his wife, acquiesce in it for so long a time? The answer is this: The evidence tends to show that Lindsley and his wife had been in the possession of the premises for some time before the mortgage and deed, if any, were made, and that Fiehter was a mere mortgagee for the sum of $900. Fiehter had already received $400 on account of the principal, and was demanding and receiving money on account of the mortgage. Finding, as I have, that Fiehter had caused the deed to be made to Lindsley’s wife, and that he was favorable to her, and would do nothing except by compulsion at the end of an expensive lawsuit, and that he, Lindsley, was in possession, he may well have rested in that situation. There is no proof that he knew, for a long time at least, that Fiehter had made the deed of 1858 to his wife. Then after his wife’s death he married again and was in possession and continued so for a great many years. He was probably ignorant of the law that it was possible to nullify the effect of his possession by showing that he was in as tenant by tbe curtesy, and so lie rested believing himself to be the owner of the premises by a sufficient title.

And it must be observed here that the complainants, his children, were mere volunteers. They have paid nothing on the strength of their mother’s title.

Taking, then, the whole case together, it seems to me that the defendant clearly holds the title in equity (subject to an equity in the complainants which the defendant freely admits, and which will be hereafter referred to), and that in the absence of any competent proof that the deed of 1853 was actually made to the wife, or, if made to her, that it was so done by the direction and consent of the husband, or that he afterwards acquiesced in or affirmed the title in her, I think the decree must be for the defendant. Of course, the deed of 1858 cannot change the status if, as I find to be the fact, it was made without the husband’s consent and direction.

The special circumstance to which I refer is this: After Stephen A. Lindsley had paid two of the promissory notes to Eichter, the three remaining notes were, with the mortgage, assigned by Fichter to a man named Allen, and by him were assigned to David Estill, the father of the first Mrs. Lindsley, and held by him when he died in 1876. His executor inventoried the mortgage as $300 of principal and $300 of interest.

Estill, by his will, provided as follows:

“I give and bequeath to the children of my daughter Sarah L. Lindsley, the deceased wife of Stephen A. Lindsley, the sum of $200 each, to be paid to them severally as they respectively attain the age of twenty-one years, with the accumulated interest; and which said interest my said executors are required to make by safe investments as rapidly as practicable ; and in case any of said children shall die under the age of twenty-one years, then the share or part of such deceased child’s share to be equally divided among the heirs of such deceased child.”

A further provision in his will was that if the indebtedness due him from Stephen A. Lindsley on the bond and mortgage in question was not paid, the same might be set off against the legacies given to his children; and this was done.

The proofs show that some of the children of Stephen A. Lindsley died before and some after their grandfather Estill died, and that some died after he died and before their father died, all intestate and without heirs, so that the shares of those which died between the death of David Estill and the death of Stephen Lindsley became vested in equity in their father, Stephen A. Lindsley, as their next of kin. The father, Stephen A. Lindsley, at the time of EstilFs death, had a claim which was proven and allowed by EstilFs executor, which was offset against the amount due on the notes secured by mortgage; so that the complainants are entitled to be subrogated, to a certain extent, to the rights of David Estill, as mortgagee of these premises, and to a lien on them, to the amount to be ascertained by a careful computation. Such computation can be made by counsel, and, when determined, a decree will be'advised in accordance with these views.

The effect of the decree will be that the lien of the complainants will be paramount to that of the defendant for his bill for burying their father, and that the second Mrs. Lindsley will get what is left, which, according to the statements of counsel, will not reach a large siim.


author: PlTNBY, V. C.

text:
    The James P. Hall Incorporated Company v. The Mayor, &c., of Jersey City, Timothy Burke et al.
    (Submitted March 18th, 1901.
    Decided November 27th, 1901.
    Filed December 21st, 1901.]
    1. Under act March 30th, 1892 (P. L. of 1892 p. 869 % 1), providing that persons furnishing materials for public improvements in municipal corporations may- file liens therefor, which will become absolute liens in favor of every person furnishing materials, their assigns or legal representatives, a claim for materials furnished to a contractor with a city is assignable, giving the assignee a lien therefor.
    2. Under act March 30th, 1892 (P. L. of 1892 p. 869), providing that the notice of a claim for a lien for materials furnished to a contractor with a city shall state the residence of the claimant, and be accompanied by an affidavit, it is sufficient to state the place of residence in the affidavit, instead of in the body of the nottee.
    3. Under act March 30th, 1892 (P. L. of 1892 p. 869 § 2), providing that a notice' of a claim for a lien for materials furnished to a contractor with a city shall state the name of the person to whom the materials were furnished, and also the terms, time given and conditions of his contract, a notice is sufficient which states that the lien is claimed on money due or to become due to a certain person according to the terms of his contract with a city for the erection of an engine-house at a certain place, which contract was dated on a certain date and filed in the comptroller’s office on a certain date.
    4. Under act March 30th, 1892 (P. L. of 1892 p. 869), providing that the notice of a claim for a lien for materials furnished to a contractor with a city for a public work shall state that the amount due is so due after deducting all just credits, a notice is sufficient which states that the amount due is a certain sum, and the amount to grow due is a certain sum.
    5. A mistake in the notice and affidavit as to the amount due does not affect the validity of the claim when not made intentionally.
    6. The notice and affidavit of a claim for a lien for materials furnished to a contractor with a city stated that the amount due was a certain sum, and the amount to become due was a certain sum. The whole amount had been due before the-claim was filed, but a note had been taken on account, which had not been paid, which was under discount at the time the claim was made, and afterwards retired by the claimant.—Held, that the claim was not vitiated by such statement.
    7. Under act March 30th, 1892 (P. L. of 1892 p. 869), providing that notice of a claim shall be filed with the chief financial officer of the city, the notice was properly filed with the city comptroller, instead of the treasurer; the comptroller being required to examine every claim against the city and determine its validity.
    On final hearing on bill, answers and proofs.

      Mr. Charles E. Hendrickson, Jr., for the complainant.

      Mr. John W. Queen, for Jersey City.

      Mr. James A. Gordon, for the defendant William R. Whyte.

      Mr. Henry Ewald, for the defendant the Union Stone Company.

      Mr. Joseph 8. Tarry, for the defendant the Commonwealth Roofing Company.
   PlTNBY, V. C.

This is a contest among creditors over a fund of $989.74 in the treasury of Jersey City, representing a balance due to the defendant Timothy Burke on a contract made by him with Jersey City for the erection of an engine-house. The claim to the fund is based upon material furnished to Burke, used in the construction of said building. The complainant and sev.eral other parties, who are defendants, claim that they acquired a lien on the fund by procedure under the act of March 30th, 1892 (P. L. of 1892 p. 369), entitled

“An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performing of any work in public improvements in cities, towns, townships and other municipalities in this state.”

The complainant’s claim is first in point of time, and if its proceedings to effect its lien were in all respects regular, its claim, amounting to over two thousand dollars, is much more than enough to absorb the whole fund; hence it is well to examine it and the various criticisms made upon it.

The claim is based wholly upon mason materials furnished to Burke and proven to have gone into the building. They were furnished, not by any written or even oral contract between the complainant and Burke, but simply on the fixing of the scale of prices which would be charged for such materials, and the ordering of them, from time to time, by Burke as they were needed. Their delivery covered several weeks or months of time. A portion of them was furnished by James P. Hall when engaged in business in his own name. Then he incorporated the complainant company, and assigned his claim up to that date to the complainant company, and the rest of the material was furnished by the complainant.

The first objection is that such a claim was not assignable. The principle was invoked that personal liens of this character are not assignable. I do not think that principle applies to a case of this kind. But whether that position be sound or not, I think that the language of the first section of the act is express on that subject:

“These liens may be filed and become an absolute lien to the full and par value of all such work and materials, to the extent of the amount due or to grow due under said contract, in favor of every person or persons who shall be employed or furnish materials to the person or persons with whom the said contract with said city, town, township or other municipality is made, or the sub-contractor of said person or persons, their assigns or legal representatives.”

I think the words “their assigns or legal representatives” refer to the persons furnishing the material, and not to the contractor or subcontractor to whom the material was furnished.

The next objection is that the sworn notice of claim is defective in not stating the residence of the claimant. The language is this: “You are hereby notified that the James P. Hall Incorporated Company, a corporation of the State of New Jersey.” The complainant is a corporation of the State of New Jersey, and its only residence, in the strict sense of that word, is the State of New Jersey, and the language of the act is that the notice shall state “the residence of the claimant.” The affidavit annexed to the notice states “that the said company has its office at the foot of Henderson street, in Jersey City, New Jersey.” And granting that the word “residence” used in that connection in the statute means the place of business or locality where some of the officers of the corporation may be found, then the question arises whether or not the stating of that in the affidavit, instead of in the body of the notice, is not sufficient. I am of opinion that it is sufficient. The object of the statute was to give notice to the municipality where to find the claimant, in order to deal with him, her or it in a business way, and that object is satisfied if the notice, taken as a whole, gives information on that subject to the city. The affidavit annexed to the notice is a requisite of the statute, and hence is a part of it; and I hold that the insertion of the residence in the affidavit is sufficient.

The next point made is that the requisitions of the statute in the second section as to the contents of the notice are not followed. The language is that the notice shall state

“the name of the person by whom employed, or to whom the materials were furnished; also a statement of the terms, time given, conditions of Ms contract."

The construction of this clause is not simple; in fact, it seems to me difficult to understand what it does mean. The persons for whose benefit the act was parsed are described in the beginning of the first section in this wise:

“Any person or persons who • shall hereafter as laborer, mechanic, merchant or trader, perform any labor or furnish any material toward the performance or completion of any contract,” &c.

There is nothing in any other part of the statute to indicate that the work done or the materials furnished should be done in pursuance of any contract between the claimant and the contractor with the city. All the references to a contract are to a contract between the city and the contractor for a public work; and the lien is given upon the fund in the hands of the city due to a contractor on a contract. Now, in my judgment, the words above quoted, namely,

“the name of the person by whom employed, or to whom the materials were furnished; also a statement of the terms, time given, conditions of his contract,”

refer to the contract between the contractor and the city, the object being to clearly indicate to the officers with whom the notice is to be filed under what contract the claim is made. In this case the notice states that the lien is claimed upon money

‘“now due or which may hereafter become due to Timothy Burke, of Jersey City, New Jersey, according to the terms of his contract with the said mayor and aldermen of Jersey City for the erection of the new engine house, No. 14, in block 924, parts of lots 29 and 30, Lincoln street, Jersey Oity, which said contract is dated October 27th, 1899, and filed in the comptroller’s office November 16th, 1899.”

I think that fulfills the requisition of the part of the statute now in question. It gives to the city all the information that the claimant had upon the subject, and informs the officers of the city where they can find the contract and how to identify it.

Another point made is that the notice does not state that the amount due is so due “after deducting all just credits and offsets.” I am of the opinion that it is not necessary to use those words in fulfilling the terms of the statute. The affidavit does state that the amount due is a certain sum, and that the amount to grow due is a certain sum. This is sufficiently explicit, and it could not be true if the claim were subject to any just credits and offsets.

In point of fact, however, it turned out at the hearing that the claim was, for reasons just now to be stated, possibly subject to a credit for a payment that arose under these circumstances. Hall was selling goods on credit to Burke, to be used on another job, which were entered on the same ledger account as the engine-house goods. On the 3d of March, 1900, Hall loaned to Burke $250, which was charged against him on the same account. On the 28th of March, Burke paid to Hall $300. That repaid the loan of $250 and $50 more; and subsequently, on the 5th of April, Burke paid Hall $200, making $250 paid. But, then, on the 13th of April, Hall repaid Burke $250, which, by the understanding between Hall and Burke was simply a repayment of the $200, which Burke had paid Hall on the 5th 'of April, and the $50 surplus which he paid him on the 28th of March, making the amount of cash paid by Hall to Burke, and by Burke to Hall, precisely the same; and under those circumstances Hall thought that Burke was entitled to no credit on his books, and gave none on his account of materials furnished for the engine-house. If no other creditors were interested, the view of Hall might prevail; but other creditors, who had claims upon this fund, were interested in that question, and no arrangement between Hall and Burke could deprive them of their right to have those credits applied. If there were no other charges on the ledger account of Hall against Burke except those for the engine-house, I should be decidedly of the opinion that the $250 must be credited on the claim here sought to be enforced. But there are other items on that ledger account, and Mr. Hall’s counsel claims that he had a right to apply that payment on the other items so charged. This contention may be right in law and equity, but I deem it not worth while to determine it here, because giving credit to Burke on the engine-house account for the $250 still leaves the complainant’s claim sufficient to swe.op the whole fund. I shall, therefore, treat the claim as so reduced.

But upon this state of affairs the other creditors take this further ground, that the amount due was untruly stated in the notice and affidavit by reason of which the claim must entirely fail.

I cannot take that view. The later, and I think the better, rule for the construction of this statute has been adopted by Vice-Chancellor Reed in the case of Camden Iron Works v. City of Camden, 15 Dick. Ch. Rep. 211, and by Vice-Chancellor Grey in Garrison v. Borio, 16 Dick. Ch. Rep. 236, and that rule is that a mistake in stating the amount due on the claim, by which it is made larger than it afterwards turns out actually to be, is not fatal, unless made intentionally for the purpose of inflating the claim. In this ease I think the claim was honestly made for the amount set out, although by reason of the money transactions between Hall and Burke it'be subject to a deduction of $250.

Another point raised, but not pressed with much vigor, is that the claim states, on its face, that the amount due at the time of the affidavit is $1,311.32, and the amount to become due is $850 more, making in all $2,161.32. The whole amount had been due before the claim was filed, but a note for $850 had been taken on account, which matured on the 26th of June, and which was not paid. It was under discount at the time the claim was made, and was retired by the Hall company and produced at the hearing. Hnder the express decision of Edwards v. Derrickson, 4 Dutch. 54, the objection fails.

The final objection is that the notice was not filed with the proper officer. Duplicate notices, with duplicate affidavits, were filed, first, with the comptroller of the city, and second, with the clerk of the board of fire commissioners of Jersey City. That board of fire commissioners has an office or headquarters, and a clerk there in attendance. No member of the board attends at this office regularly. The notice was received by the clerk, filed and duly presented to the board at its next meeting. The weight of the argument on this point was directed against the service of the other notice upon the comptroller of the city, the insistment being that it should have been upon the treasurer. The language of the act is “with the financial officer of said city.” The only duties of the treasurer are to take care of the money of the city. He has no control whatever of its disbursements—that is to say, he has no voice in the determination of the person or persons to whom, or the account upon which, the money is to be paid. That is a matter which falls peculiarly within the scope of the duties of the 'comptroller. His duty is to examine every claim against the city, determine its validity, and, upon such determination being'approved by the other authorities of the city, to give his sanction to a draft for the amount. He is clearly, par excellence, the financial officer of'the city. Besides, it appears in this case that the city, in pursuance of the third section of the act, provided a book called the “Lien-book,” and that that was kept by the comptroller, and that, in obedience to the directions of that section, he there entered all claims of this cháraeter, and that no such book was kept by the treasurer.

This disposes of all the objections made against the complainant’s claim, and it must prevail.

The city, I think, is entitled to deduct from the fund in its hands the taxed costs, if any, incurred by it in the suit, and the complainant is entitled to a decree for costs against those defendants who have contested its claim.

As the complainant’s claim will absorb the whole fund, it is not worth while to consider the other claims presented.