author: The Ordinary.

text:
    Anna Sanderson and William Berdan v. Frank C. Sanderson, Sarah Snyder, George A. Sanderson, Mary E. Thorp, Margaret Haines, Isabel F. Ludlum and Eleanor C. Post.
    1. In the determination of an appeal from a decree of an orphans court, based upon the verdict of a jury, which denies probate to a will, the prerogative court will, notwithstanding the act relative to the effect of a jury trial in proceedings touching the probate of wills, approved February 22d, 1892 (P. L. of 1892 p. 28), pass de novo upon the question whether the will shall be .admitted to probate, and, in so doing, will review the entire evidence adduced in the court helow and take additional proofs, if, in its discretion, it shall appear to it proper to do so.
    2. The proofs, in the case considered, did not justify the verdict in the circuit and adjudication by the decree of the orphans court, that the testator lacked testamentary capacity and that the will was the product of undue influence.
    3. The charges of an expert, produced by one of the parties to a will contest, without previous authority therefor from the court, will not be allowed' from the estate of the decedent.
    On appeal from decree of the Passaic orphans court.

      Mr. John W. Griggs, for the appellants.

      Mr. John W. Harding, for the respondents.
   The Ordinary.

The questioned decree is founded upon the verdict of a jury-in the Passaic county circuit court, to which court the orphans-court of the same county certified the following questions :

“First. Were the papers presented for probate, purporting to be the last will and testament and codicil thereto of John Sanderson, deceased, signed, witnessed, published and delared by him according to the statute in such case made and provided ?
“Second. Was the said John Sanderson, at the time of making and declaring said will and codicil, of sound mind, memory and ■understanding, sufficient to make and publish a will?
“Third. Was the making, signing and publishing of said alleged will and codicil procured through undue influence, imposition or fraud from or by Anna Sanderson, a legatee or devisee named in said will, or by any other person or persons ?
“Fourth. Are the said papers, purporting to be the last will and codicil, propounded for probate by the proponents, the last will and testament and codicil of John Sanderson, deceased?”

The issues framed upon these questions were submitted by the-circuit court to a jury, with the result that the first and third questions were answered in the affirmative and the others were-answered in the negative.

The matter was certified back to the orphans court, and the decree now disputed was thereupon signed by the latter courts It denies probate to the disputed papers as the last will and testament of John Sanderson, deceased.

The decree is objected to, not only because it refuses probate, but also because it directs that $150 be paid out of the estate of the decedent to an expert witness on mental diseases, who was used at the trial in the circuit court in behalf iof the respondents, the caveators below.

Upon this appeal it is, in the first plaee, urged that the act relative to the effect of a jury trial in proceedings touching the probate of wills, approved February 22d, 1892 (R. L. of 1892 p. 28), which provides

that the verdict of a jury in any proceedings touching the probate of a will, heretofore or hereafter rendered, shall be conclusive and final upon any issue of fact found by such jury, subject to he set aside only for such reasons as would justify the setting aside of verdicts in ordinary proceedings at common law,”

introduces a new rule for the prerogative court in consideration of appeals in cases where the decree of the orphans court appealed from is founded upon the verdict of a jury, the contention being that the prerogative court is bound by the verdict of the jury upon all issues of fact, unless it shall be justified in disregarding the verdict for reasons which would have induced a common-law court to set aside a similar verdict upon an issue there. It is ■obvious that the effect of thednnovation contended for, would be to deprive this court of the right to radically review the substance of the issue in probate cases where a verdict is had. In such cases, instead of hereafter passing de novo upon the question whether the disputed paper shall be admitted to probate, considering all evidence previously adduced, taking additional evidence if necessary or just, and weighing and giving effect to the proofs thus had, according to its judgment, as heretofore (Read v. Drake, 1 Gr. Ch. 78; Rusling v. Rusling, 9 Stew. Eq. 603; White v. Starr, 2 Dick. Ch. Rep. 245; Smith v. Smith, 3 Dick. Ch. Rep. 566), the court’s jurisdiction would be restricted to a simple review of the action of the jury, as a court of common law would review it upon a motion for new trial, and to an inquiry into the technical form and regularity of the decree. It cannot be denied that such effect would be to seriously abridge-the scope of the court’s jurisdiction. If such be the legislative purpose, it is abortive, for the jurisdiction of this court, in its full vigor and extent, is enjoined and assured by the constitution and is beyond legislative control. Harris v. Vanderveer’s Executor, 6 C. E. Gr. 424; Traphagen v. Township of West Hoboken, 10 Vr. 232, 236; Green v. Jersey City, 13 Vr. 118; Flanagan v. Plainfield, 15 Vr. 118.

I proceed, then, to the determination whether the papers in dispute shall be admitted to probate as the will of John Sander-son, as though the case had its inception in this court.

John Sanderson died on the 29th of August, 1892, aged about seventy-two years. He had been a resident of Paterson for many years, and there enjoyed the reputation of being a substantial citizen. He had been a judge of the court of common pleas, a member of the lower house of the state legislature, a trustee of the church with which he was connected and a reputable and trustworthy merchant.

Until after his second marriage, in January, 1891, he resided in apartments over his store.

He had eight children by his first wife and none by his second. These children, with the exception of a son, John, who predeceased him in May, 1892, are the caveators below and the respondents upon this appeal. His first wife died in 1887. At the time of her death his children, except a daughter, Eleanor, had all married and left the paternal abode. In October, 1889, Eleanor married and went away, so that then the father, at the age of nearly seventy years, was left to live alone. It is true that his sons John and Frank assisted him in his business, and that, from time to time, his daughters called upon him, and, by little attentions to his household matters, contributed something to his comfort, but, when his store was closed, for the greater part of his leisure hours, he was alone. He had been accustomed for years to the companionship of wife and children, and the solitude of his situation, with wife dead and children scattered and absorbed in new interests and other lives, together with the admonitions of failing strength, attendant upon his advancing age, furnish a reason and excuse for a second marriage. In the summer of 1890 he met the appellant, Anna Sanderson, while she was visiting at Paterson, and the following January he married her. She was then a widow named Billingsby, resident in the city of Baltimore, and his junior by some thirty-five years.

Conscious that his daughters would not approve of his proposed remarriage, he did not apprise them of his determination until a little more than a week before the wedding took place. Then he procured the wife of his son John to write each of them an invitation to the wedding. Shortly afterwards the invitations-came back to him from his affianced wife, together with a letter which his daughters had written to her, couched in this language:

“ Mrs. Billingsby’s unique invitations to ber marriage are returned by John Sanderson’s daughters with neither congratulations nor regrets.
“ Paterson, January 7th, 1891.”

When he brought his bride home, he discovered that his daughters had visited his house in his absence and taken from it their mother’s portrait.

After his return none of his children, except his sons John and Frank, called upon his wife. On the contrary, his daughters carried their disapproval of his marriage to the extent that they not only failed to visit him, but even refrained from recognizing him when they accidentally met him upon the street or in public conveyances. His son George called upon him only once, and that was not to pay his respects to tíie new wife, but to borrow money.

In the month of March following the marriage, he purchased a dwelling on Ellison street, in Paterson, some distance from his store, taking the deed for it in the joint names of his wife and himself, so that the survivor of them should have the property. The property thus purchased was encumbered by a mortgage for §3,000. The following May he made the will in -dispute. Its scheme is, that the mortgage upon the Ellison street property shall be paid, and that his wife shall have that house with its furniture and also $20,000, and that the remainder of his estate shall be equally divided between his sons John and Frank. It expressly provides that none of his other children shall have any part or share in his estate. His wife and his son John are named as the executors of the will.

On the 3d day of May, 1892, about a year after the will was executed, the son John died, and on the 11th of the same month, by the codicil in dispute, William Berdan, the brother of John’s wife, was substituted as executor in John’s place, and in all other respects the will was reaffirmed as it had been made the year before. Three and a half months after making the ■codicil Mr. Sanderson died.

The proofs show that the testator’s estate, exclusive of the Ellison street property and its furniture, and the good will of his business, at the time the will was made, was fairly worth little more than $20,000, but at the same time they disclose that Mr. Sanderson estimated his store property at a price several thousand dollars beyond its real value. He apparently did not realize that which was a fact, that his business property had ■depreciated in salable value during his ownership of it because of the incoming of objectionable surroundings. I think 'that the proofs justify the conclusion that he believed that his will would give his sons John and Frank some $10,000 or more.

Ho question is raised as to the formality of the execution of the will and codicil.

The allegation is that when, the instruments were executed Mr. Sanderson lacked testamentary capacity, or, possessing it, was unduly influenced and coerced into the execution of those instruments.

The testimony shows that after his remarriage, or even before it, he became subject to fits of despondency, evinced by his crying without apparent immediate cause, and also that he suddenly commenced to drink to excess. One of his intimate friends, produced as a witness for the caveators, testified that he appeared to be worried and uneasy about something all the time and Would drink a dozen times a day. He appears to have talked to this friend and to have given him to understand that he had determined that the children who did not come to see him should not participate in his estate, but that his sons John and Frank should share in it. As he talked about the treatment of his children he would cry. Other testimony also shows most conclusively that, after his marriage and his desertion by his daughters, he acquired habits of intemperance, which may reasonably account for a great portion of his conduct which is now relied upon as evincing testamentary incapacity.

The respondents proved that shortly after their mother’s death their father began to pay more attention to his dress, making it more youthful, and to comment upon his physical appearance and the consideration he received from the opposite sex, and at the same time to exhibit a decided interest in that sex which ill comported with his former dignity and self-control. They also proved that he frequently complained of dizziness, and lost interest and zest in his business, became penurious, rambled to some extent in his conversation and was somewhat forgetful of recent events. Two or three incidents are strongly urged as evidence of a decided failure of mental power. One is narrated by the respondent Frank Sanderson, who testifies that one morning in May, 1891, the month when the will was made, he looked out of a window at the store and saw his father standing in the street dressed in coat, vest and underdrawers, with his pantaloons over his arm; that he took his father into the store, where he appeared to be dazed, and failed to reply when asked how he came to be in that condition. The witness did not call a physician. After the father had rested a short time, he was again in full possession of his faculties. The witness does not know whether he had been drinking.

Another instance is related by William T. Ludlum, the husband of the respondent Isabel Ludlum. He says that early one Sunday morning, after Mr. Sanderson had moved to Ellison street, the witness found him sitting on the curb of the sidewalk, and, upon asking him for an explanation of his situation, was told that he was not feeling well, that his head bothered him and he had come there for fresh air.

Gilbert Reilly, a livery stable keeper, also testified, th'at he saw Mr. Sanderson, a few days before his second marriage, sitting in his wagon at the side of a street in Paterson, and that the witness went to him and spoke to him, and, Mr. Sanderson failing to recognize him, asked, “Who are you?” and when the witness asked him if he did not know Gilbert who used to live at Judge Hopper’s, Mr. Sanderson said, “ Oh, yes, Gilbert,” and, after asking how Reilly’s family was, looked about and complained that everything was upside down and “ so funny,” and asked the witness to drive him a little way, and the witness drove him home. The witness did not notice that he was intoxicated, but said that the neighborhood in which he found him abounded in drinking saloons.

It is obvious that each of these instances respectively may be attributed either to the effect of Mr. Sanderson’s unfortunate habits or to a temporary pang of the disease which caused his death. Especially is this true when an attempt is made to reconcile them with other testimony and other established conditions of his mind. Mr. Sanderson’s family physician, an old and experienced practitioner, testified that in April, 1891, Mr. Sander-son had an attack of the grip, for which he was treated a-short time while he was attending at his store and business as usual, and that later, in the summer of 1892, for two months preceding his death, the doctor again attended him, treating him for diabetes, of which he died. For the first of these last two months he was confined to his house, and only during the last of them, to his bed. Through both sicknesses the physician noted that, though he suffered from muscular weakness and pains in his head, he continuously retained a clear intellect.

By other witnesses it is shown that, during his last sickness, he controlled his bank account, signing all drafts upon it, and that his son Frank, who was his salaried clerk, constantly made reports to him concerning his business. Several witnesses, apparently free from all interests, whose credibility cannot be doubted, speak of him as having possession of a clear understanding ■ to-the very end of his life.

But, putting aside the testimony of the witnesses produced by the appellant, I think that the testimony of the sons Frank and George and the son-in-law Ludlum make the fact clear that Mr. Sanderson usually possessed intelligence in ample degree to-enable him to make testamentary disposition of his property. The proofs certainly did not establish that he suffered from a fixed mental disease which incapacitated him to make the will. At most, his mental aberrations, whether produced by intoxication or disease, were temporary and fleeting. Under such conditions, the-burden of proving incapacity at the very time when the disputed papers were executed, was upon the caveators.

The papers were drawn under the supervision of Alexander Elliott, a reputable member of the bar of this state. It appears that the wife of Mr. Elliott and the appellant Anna Sanderson are cousins. It was at the house of Mr. Elliott that Mr. Sanderson first met the appellant, and it is shown that, after his-marriage, Mr. Elliott and his wife were accustomed to visit his house. Upon occasion of one of those visits, Mr. Sandersoncalled Mr. Elliott aside and told him he wished to make his will,- and then proceeded to instruct him particularly concerning its-provisions, expressly naming his sons John and Frank as the-residuary legatees and devisees, and declaring his intention that his other children should not share in his estate. After a delay of more than a week, during which Mr. Sanderson asked if the will had been prepared, the instrument was drawn and Mr. Sanderson was summoned by telephone from his store to Mr. Elliott’s office. He went there alone and was ushered into Mr. Elliott’s private room, where Elliott handed him the will to read, and where, after reading it for fifteen or twenty minutes, he declared it to be correctly drawn, and thereupon Mr. Elliott summoned two law students from the outer room of his office, and the will was duly executed in their presence. The following year the codicil to the will was also executed in similar manner, in Mr. Elliott’s office, in the presence of a young lawyer and stenographer attached to the office. To the subscribing witnesses to these papers and to Mr. Elliott, Judge Sanderson appeared to be in full possession of his faculties.

Passing to the question whether Mr. Sanderson was unduly influenced to make the'will and codicil, I have this statement- ■ of fact urged upon me: Mrs. Sanderson, comparatively youDg, ■married an old man without announcing her intention to do ■so to his daughters, though when she became engaged she was in Paterson, where most of them resided. She preserved the insulting letter which they wrote her when they were invited ■to her wedding, anticipating that she might need it some day. When she and her husband moved to Ellison street to reside, ■she told Frank Sanderson that there would not be room for him there. Her son by her former husband once stated that if his «mother should die he would get Judge Sanderson’s property. When Judge Sanderson was on his deathbed and it became necessary for him to authorize some one to sign bank checks and «his son Frank sought that authority, Mrs. Sanderson objected •that she should have the authority, and procured it from her husband. Mr. Sanderson appeared to fear her, and, apparently because of that fear, said to certain interested witnesses that he did not want to see his children. The draughtsman of the will, Mr. Elliott, was the husband of Mrs. Sanderson’s cousin, at whose house she had been accustomed to visit, and not the lawyer whom Mr. Sanderson was accustomed to employ. That after Mr. Elliott had instructions to prepare the will, Mrs. Sanderson asked him if he had done so. That the will is inofficious. Upon which statement of fact is based the following argument: That the disparity of ages marks the marriage as a ■mercenary one upon the part of Mrs. Sanderson. The preservation of the insultiug letter indicates an anticipation of a contest with the writers of it. The statement to Frank Sanderson that there was no room for him in the Ellison street house shows a desire to separate the father from his children. The taking to herself the power of attorney to sign bank checks evinces a power over her husband and a zealous establishment of herself in possession of her husband’s moneys. Her son’s boast -indicates a repetition of his mother’s conversation. That the coupling the condition of mind thus evidenced with the fact of the employment of Mr. Elliott, her cousin’s husband, to draw the will, her inquiry of him concerning the preparation of that instrument, and the character of the will when prepared, in effect giving her her husband’s entire estate to the exclusion of his children, and the mental condition of the testator, inferentially establish a presumption against the instrument as the unconstrained act of Judge Sanderson, which presumption must prevail if not successfully rebutted, and that it has not been rebutted.

I think that the chief difficulty in this argument is that the inferences relied upon are not natural or necessary. Even though Mrs. Sanderson does not say that she loved the judge-when she married him, it by no means follows that the marriage-was a purely mercenary one upon her part. The mind readily suggests other possible motives that may have induced her to-enter into it. It does not appear to be impossible that Mrs. Sanderson may have desired the companionship and protection of a-respected husband or the guidance of the strong will of a’ man for her son, or that other advantage equally potent moved her. The preservation of the insulting letter was not unnatural and cannot be reasonably ascribed to a vicious design. It is to be remembered the letter was sent by her from Baltimore to-Judge Sanderson in Paterson, and that he must have preserved it from destruction in order that it should have fallen into her hands again. May not the same motive which impelled him to preserve the letter have caused her to still further preserve it ?' So the statement to Frank Sanderson, that there was not room for him at the Ellison street house, might have been the truth-without design. The taking to herself the power of attorney to-sign checks may, as she says, have been only because she thought it would appear better for her, the wife, to be her husband’s attorney. There is not a scintilla of evidence to connect her son’s boast with anything which she said or did. The employment of Mr. Elliott was not unnatural. His wife and Mrs. Sanderson were cousins. They frequently visited each other, particularly on Sundays. When the Sandersons moved to Ellison street, the Elliotts became accustomed to go there and spend Sunday evenings. Mr. Elliott and Judge Sanderson were thus-thrown constantly together and became better acquainted. It was upon the occasion of one of these Sunday visits that Mr.. Elliott was taken down stairs, where he and Mr. Sanderson were-alone together, and the instructions for the preparation of the will were given. That Mrs. Sanderson afterwards inquired if Elliott had prepared the instrument is not strange, for it is not pretended that the judge kept his purpose to provide for her secret, and its advantage to her, in view of the hostile attitude of the judge’s children, was most apparent. The disposition of the testator’s property appears to have been unnatural only in the sense that it expressly denied several of his children any part of his estate. But was it unnatural that the man who had been neglected, insulted through his wife and ignored in his old .age by children upon whom, the proofs show, he had lavished money and. affection, should mete out to those cruel children the punishment which the law permitted him to inflict? The power to dispose of property by will is a weapon to the weak and the old, to protect them from abuse and neglect and to ■ enable them to punish those who, bound to them in duties imposed by ties of blood, fail to perform those duties. An apparently inofficious will is readily explained by the inofficious ■ conduct of those who complain of it.

I do not think that the circumstances relied upon to raise a presumption against this instrument are sufficient for that purpose. Clandestinity and apparent control of the testator, most important indicia of undue influence, are absent. But more than this, there are additional circumstances which must be coupled with the circumstances thus relied upon, in the court’s consideration of this question. They are these: when the will was executed John Sanderson was not called from his wife’s immediate control, but from his place of business, from which he went voluntarily and alone to Mr. Elliott’s office and there read the will over with care and deliberation before he executed it. If Mr. Elliott tells the truth, and I perceive no reason to doubt him, not the least effort was made by him to induce Mr. .Sanderson to execute the instrument. There was no haste in its preparation after the instructions for it were given. A year after the will was executed, the testator’s son John, who was an ■executor of the will, died. Mrs. Sanderson then could have had no object in adding another executor. John’s death left her .sole executrix of the will, and would give her sole control of her husband’s estate. Yet, at this juncture, we find the testator again going to Mr. Elliott and causing him to prepare a codicil to the will, by which the brother of John’s wife was made an executor in John’s place, and the will, as made the year before, was expressly reaffirmed. So far as the testator’s children are concerned, the will carries out his declarations not only to his son John’s widow, but also to one of the witnesses produced by the respondents, to the effect that he would remember his sons John and Frank, but would not give anything to the daughters who failed to visit him. Mrs. Sanderson also offers herself as a witness, and, under her oath, declares that she never did anything to unduly influence her husband.

Upon a review of all the proofs, I am of opinion that they are neither sufficient to show undue influence nor to raise a presumption against the instrument.

Referring to the objection to the allowance of $150 for the payment of an expert in mental diseases, produced as a witness for the respondents, it appears that the expert was selected by the respondents without previous conference or agreement with the proponents and without previous authority from the court, and that he went upon the witness-stand in the belief that the respondents were his employers and responsible for his compensation. The influence of his employment was upon him. He did not come into the case clothed as a disinterested arbiter of the matter submitted to him. He was the exponent of the party producing him, assuming the attitude of one who challenges combat with his arguments and conclusions. His credibility and qualifications were in issue.

I think it would establish an unwise precedent to mulct a decedent’s estate with the charges of such witnesses. Produced at the will of the parties to the contest, their multiplication, necessary, perhaps, to enable the court to reach a correct conclusion, would be apt to entail serious expense upon the estate and bring the administration of justice, through such expensive practice, into just condemnation. If it be necessary to have the assistance of experts, whose charges are to be borne by the estate, their production should be authorized and they should be chosen by the court after hearing the parties to the contest. In consonance with these views, I find the well-considered opinion of the supreme court of California, in Faulkner v. Hendy, 79 Cal. 265.

I think that the orphans court should not have allowed the charge in question.

I will reverse the decree of the orphans court and admit the will and codicil to probate.


source: Caselaw Access Project

author: Thk Ordinary.

license: Public Domain

text:
    Daniel H. Dunham, administrator cum testamento annexo of the estate of Nancy W. Halsted, deceased, v. Albert R. Marsh.
    1. Where, in his exceptions to the account of an administrator cum testamento annexo, the exceptant alleges that he is next of kin of the testatrix, and the administrator moves to strike out the exceptions without allowing opportunity to substantiate the allegation of kinship, the allegation will be taken, for the purpose of disposing of the motion, as true.
    2. An orphans court may determine any question incidentally and necessarily involved in the due exercise of its jurisdiction, though the determination of that question, directly presented, would not be within its jurisdiction; but the binding effect of its conclusion upon the question will not extend beyond the end for which the conclusion is necessarily reached.
    On appeal from an order of the orphans court of Hudson county, denying a motion to strike out exceptions to the account of an administrator cum testamento annexo.

    Nancy W. Halsted, of the township of Kearny, in the county of Hudson, died in May, 1891, leaving a will to which there were three codicils. By the will executed January 16th, 1886, after bequeathing sundry legacies, she disposed of her real estate, devising the portion of it upon which her mansion-house was erected to the Newark Orphans’ Asylum, of Newark, and, in addition to such devise, bequeathed to the same institution the furniture and other chattels in, and used in connection with, the mansion-house. By the second codicil to the will, which was executed on the 17th day of May, 1891, she revoked her former gifts to the orphans’ asylum and made disposition of that part of her real estate which is situate in the township of Kearny,, as follows:
    “And. I do hereby direct that the entire property whereon I now reside; consisting of about ten acres, more or less, be deeded to the Newark Protestant Orphans’ Asylum, of Newark, New Jersey, on the following conditions, viz.: That said corporation use it as a home for orphan children from all parts of the State of New Jersey, said orphans to be trained in some useful trade or profession, the said property to be held and so used by said corporation perpetually ; this branch of said organization to be forever known as the Halsted School or Home, as said corporation may elect.”
    Then, after directing that relatives, visiting her, might occupy her homestead for one year after her death, she proceeded in this language:
    “And further, that the residue of my estate be given to the Newark Protestant Orphans’ Asylum, provided they accept the above-described property.”
    On the day which followed the execution of this second codicil, she executed a third codicil, in which, among other things, she provided as follows:
    “In case the Newark Protestant Orphans’ Asylum, of Newark, New Jersey, fails to accept of the property described in the last-mentioned codicil, then I direct that said property be deeded to the trustees of the Third Presbyterian Church of Newark, New Jersey, to be used at their discretion in the care and education of orphans from all parts of the State of New Jersey. * * # I also direct that my books, except those disposed of by my will, be given to the trustees of the Third Presbyterian Church of Newark, New Jersey, to dispose of where they will do the most good, in their judgment.”
    The residue of the estate of the testatrix, disposed of by the second codicil, is claimed to have consisted, among other properties, of household chattels, including the books mentioned in the third codicil, valued, in the administrator’s inventory, at $2,409.59.
    In accounting, the administrator prays allowance for those household chattels and books at their inventoried price, stating that they have been delivered by him to the Third Presbyterian Church of Newark, “in compliance with the bequest in said will.”
    Albert R. Marsh has filed written exceptions to the account, which draw in question the amount of the commissions claimed 'by the administrator, the allowance asked for counsel fees paid by him, the transfer of the personal property above referred to, valued at $2,409.59, to the Third Presbyterian Church of Newark, the failure of the administrator to account for moneys alleged to have been paid to him by an administrator pendente lite, and the completeness of the charges made by the administrator against himself, with respect to other properties alleged to have been received by him. In his exceptions he alleges that he is the only next of kin of Mrs. Halsted.
    The administrator moved to strike out the exceptions, upon the ground that the exceptant did not appear to be interested in the settlement of the account, and, from an order of the orphans court denying his motion, he has taken this appeal.

      Mr. John A. Miller, for the appellant.

      Mr. James E. Howell, for the respondent.
   Thk Ordinary.

The statute (Rev. p. 775 § 125) provides that any person interested in the settlement of any account of an executor, administrator, guardian or trustee, may appear in person, or by attorney, and make exceptions to such account.

The only question raised by the appellant’s motion to strike out the exceptions, is whether the respondent is such an interested person as the statute contemplates.

The exceptions allege that he is the next of kin of the testatrix. The appellant moved to strike out the exceptions, without demanding the substantiation of this allegation by proof. Such a motion, for its purposes, under the' circumstances, must be treated, like a demurrer, as admitting the truth of the allegation touching the respondent’s kinship. Such was the effect accorded to a similar motion in Poulson v. National Bank of Frenchtown, 6 Stew. Eq. 618.

The question then presented by the appeal is reduced to this, was the next of kin of Mrs. Halsted a person interested in the settlement of the account of the administrator of her estate eum testamento annexo ?

As he does not take anything by the will, whatever interest the respondent may have must arise from Mrs. Halsted’s intestacy of some portion of her estate. His claim is that her disposition of the residue of her estate, in the second codicil to her will, was conditioned upon the acceptance, by the Newark Protestant Orphans’ Asylum, of real estate devised to it, on the condition that it should be used for a home for orphan children perpetually, as in the codicil provided, and that the gift over, in the third codicil, to the Presbyterian church, upon the nonacceptance of the realty on the condition stated, did not carry with it the residuary estate.

That the orphans’ asylum did refuse to accept the intended gift upon the condition stated is admitted.

It is observed that the first gifts to the orphans’ asylum, in the will, consisted expressly of both real and personal estate, and that the primary gift by the second codicil was described merely as real estate — “ the entire property whereon I now reside, consisting of about ten acres, more or less ” — and was directed to be “ deeded,” an apt word to signify the transmission of real estate. There is nothing in this language that can justify an implication that the furniture in the mansion-house was to go 'with this primary gift. It is a gift of pure realty. The gift was upon condition that the property should be devoted to a prescribed purpose. To this gift, if it should be accepted, the testatrix added the further or secondary gift of the residue of her estate, free from any condition as to its use, thereby adding a premium •to induce the acceptance of the realty upon the desired condition. The former gift of the household furniture of the testatrix was revoked. No new specific legacy of it was made;. Hence it became part of this residue.

In the codicil, by which these gifts were offered, the testatrix failed to make provision for the contingency of a refusal upon the part of the orphans’ asylum to accept the property tendered-,^ and consequently, the day after its execution, another codicil was-prepared, in which, still intent that her residence property should* be devoted to the benefit of orphans, she provided that if the-orphans’ asylum should fail to accept “ the property described in the last-mentioned codicil ” on the condition prescribed, that “said property” was to be “deeded” to the Presbyterian church-for use in the care and education of orphans. In this codicil, also, the word “ deeded ” is used in manner similar to its use in the-former disposition of the realty. There was no description of the residue in the former codicil, and hence, taking the terms of the last codicil in their literal meaning, the residue does not pass by it. Besides, the residue consisted, as the administrator’s account and the will both show, largely of personalty, for the transmission of which the word “ deeded ” was not an appropriate term.

But that which furnishes the most conclusive evidence that it was not the intention of the testatrix to give the residue of her estate to the Presbyterian church, is found in the express gift to it of the books of the testatrix, which appear by the account to have been part of her household chattels, expressly bequeathed by the will, but subsequently carried by the second codicil into-the residuary estate. The implication from such a particular gift of part of the residue to the church is, that the remainder of that residue was not intended to be given to it. The maxim “ expresdo wrdus est exclusio alterius ” applies.

I think that the testatrix died intestate as to her residuary estate and that the household furniture is included in that residue.

As next of kin, then, the respondent will take property which-is chargeable with the payment of the expenses of the administration of the estate, including commissions to the administrator- and the counsel fees, for which he claims allowance, and he will be entitled to property unaccounted for if the proofs sustain the exception which charges that the administrator has received other properties for which he has failed to account, and he will be entitled to the furniture, which the administrator claims to have delivered as a specific legacy.

It was contended upon the argument that, as the ascertainment of the status of the respondent, as a person interested in the settlement of the account, involves the partial construction of the will of'Mrs. Halsted, it is not within the power of the orphans court to decide the matter, because that court does not possess jurisdiction except, possibly, in the case provided for by the one hundred and fifty-first section of the Orphans Court act (Adams v. Adams, 1 Dick. Ch. Rep. 298), to construe wills. The error of this contention becomes manifest when it is remembered that the orphans court is invested with complete and general jurisdiction over the matters which are specially given it in charge by the statute (Pyatt v. Pyatt, 1 Dick. Ch. Rep. 285), among which is the accounting of executors and administrators. Its action upon an account, duly advertised, is binding upon all persons in interest, and therefore those persons should be heard before the account is allowed. It follows, as a necessary incident to the exercise of this jurisdiction, that the court shall possess the power to determine who the parties in interest are, and, as an incident in the exercise of that power, to solve any question which must necessarily be decided in reaching that end. Den v. Bolton, 7 Halst. 206; Johnston v. Jones, 8 C. E. Gr. 216; Mechanics’ National Bank v. Barnet Manufacturing Co., 5 Stew. Eq. 239; Union Water Co. v. Kean, ante p. 111.

But the binding effect of the court’s conclusion upon the question will not extend beyond the end for which the conclusion is necessarily reached.

Upon the decision of the matter now considered, it was necessary for the orphans court to construe the will of Mrs. Halsted so far as was requisite to determine the status of the defendant, and when the exceptions are heard it will be necessary for it again to construe the will, to determine whether allowance shall be made the administrator because of his transfer of the furniture to the Presbyterian church as a specific legacy. How far the church will be bound by that construction is not now in question.

The order appealed from will be affirmed, with costs.


author:
Beasley, C. J.
      Dixon, J.

text:
    Joseph Weyman et al., appellants, v. Henry C. Thompson et al., respondents.
    The fact that administrators or executors have filed a joint final account*, and that a certain balance has been adjudged by the orphans court to be due thereon, is not, per se, conclusive evidence as to their joint liability for the amount so settled.
    On appeal from a decree of the chancellor, reported in Weyman v. Thompson, 5 Dick. Ch. Rep. 8.

      Mr. Joseph H. Qashill, for the appellants.

      Mr. Mark. B. Sooy and Messrs. Gilbert & Atkinson, for the respondents.
   The opinion of the court was delivered by

Beasley, C. J.

One Christian Weyman, of Burlington county, in this state, made his will in due form, whereby he appointed as his executors, Henry C. Thompson, Jacob Wilson (the appellant) and James L. Kemble.

The Henry C. Thompson thus appointed is described in these terms by the chancellor, in his opinion in this case. He says : He “was a lawyer of Philadelphia, who, when the will was made and until the year 1890, was reputed to be of considerable wealth and of undoubted integrity and ability. He was prominently connected with the management of two trust companies and was also executor or trustee of several estates. His residence was in Philadelphia, but he had a summer home on the Delaware river, at Beverly. Ror several years before Mr. Weyman’s death he was Mr. Weyman’s legal adviser and business agent, attending to his investments and the collection of the income therefrom, and rendering such legal assistance as from time to time was required of him. When Mr. Weyman died all his securities were in Mr. Thompson’s possession.”

It was this executor, thus correctly characterized, who practically administered the affairs of the estate. He had the assets in his hands, and he made, with a few trifling exceptions, all necessary disbursements, his two co-executors standing by and seeing the business thus transacted. Then followed a final settlement of the executorship, this account showing a balance in favor of the estate of $16,814.89. ' Subsequently, it was discovered that Thompson, the acting executor, had squandered the assets and was insolvent.

The chancellor found that the final account just mentioned was the joint account of all the three executors, and on that account decrees that all the three are equally responsible for the balance adjudged by the orphans court to be due to the estate.

The rule upon which this decision was placed was extracted from an earlier case in chancery, and was thus stated, viz.: “That when executors exhibit for settlement a joint account, and when, by the decree of the orphans court, such account is finally settled and allowed, the executors are jointly charged with the balance thus ascertained to be in their hands. The ■decree is in the nature of a judgment.”

Whether this rule, thus applied, be the legal rule upon this subject, is the only question that, for present purposes, will be considered and decided.

Although the principle thus referred to has, for a number of years past, been enforced in equity, this is the first occasion on which this court has been called upon to examine the legal propriety of that course of law.

The result of that inquiry is that the rule that has been thus frequently asserted, and which was adopted in this case as the basis of the decree appealed from, has no place in the law of this state.

The posture of this subject, as it appears from our reports, is a most singular one, and, as it is deemed, is without a parallel in judicial annals. Upon examination it will be found to be this: In the year 1828 the rule under criticism came before Chancellor Williamson (the elder) for consideration and judgment. The position of the case before the court on that occasion was in this wise: The bill was filed by Philemon Dunn and others, claiming certain moneys under the will of Gershom Dunn, deceased. Phineas Randolph and Barzillai F. Randolph were the executors of the will in question. The bill, among other things, charged that both of these executors, in a joint account before the orphans court, exhibiting their receipts and disbursements, thereby showed that there was due the estate several thousand dollars. It appeared that the executor Phineas had been the acting executor and that he had squandered the assets and was not solvent. To this bill Phineas did not appear, and a decree proconfesso was taken against him. The other executor, Barzillai, put iu an answer, which consisted solely of the defence that he had not received any of the assets of the estate, but that the same had been dealt with exclusively by his co-exeeutor, who was a man possessed of considerable property and of good repute. Under these circumstances the case came to argument, the only question being whether the fact that the answering executor had joined in the final account just mentioned, and that it had been passed by the orphans court, was-conclusive upon him.

On the issue thus made, the following is the decree made by the chancellor: “ It appearing to the court that the decrees of the orphans court of the county of Middlesex, the one made in the term of June, in the year of our Lord eighteen hundred and eight, and the other in the term of September, in the year of our Lord eighteen hundred and eleven, allowing and confirming the accounts of the said Barzillai F. Randolph and Phineas F. Randolph, executors of the last will and testament of Gershom Dunn, deceased, as aforesaid, are final decrees, made upon due-notice and advertisement thereof, given and published by the said executors, as prescribed by law, and that the same were-made on final settlement of the accounts of said executors; and that they ought to be and are final and conclusive between the parties, as well the complainants as the said defendants, as to the matters contained therein and established; and that the defendants, executors as aforesaid, ought to be jointly charged with the balance found in their hands by the last-mentioned decree of the said orphans court.”

The decree then proceeds to order an account to be taken by a master, with this further direction that “the said accounts be taken subject to the said decree of the said orphans court and the accounts of the said executors therein and thereby confirmed,, and without in anywise varying or impeaching the same.”

It will be observed that the rule thus declared is the basis of the decree in the case now before this court.

The executor Barzillai F. Randolph, whose liability was thus-established by reason of his having joined with his co-executor in a final account, which had been approved by the orphans-court, being dissatisfied with the decision against him, removed his case to the court of errors and appeals, which tribunal, in the term of May, 1831, “adjudged that the decree of the court of chancery be reversed &c. so far as respects the appellant, and that the bill of complaint in the cause be dismissed as to appellant, without costs.55

It is reasonable to suppose, a priori, that this decision of the paramount court would have settled for the time, absolutely and incontestably, the rule of law under discussion; but such was not the fact, for thirty years afterwards the subject was considered by Chancellor Green, who apparently, without much consideration, declared that the legal rule which had been repudiated by this court did prevail in this state. The case in which this singular doctriue is announced is that of Laroe v. Douglass, 2 Beas. 310, and as the whole view of the chancellor is comprised in a few sentences, it seems best to transcribe them. The-opinion says: “ The law is well settled in this state that when executors exhibit for settlement a joint account, and where, by the decree of the orphans court, such account is finally settled and allowed, the executors are jointly charged with the balance thus ascertained to be in their hands. The decree is in the-nature of a judgment. By the terms of the statute it is conclusive upon all parties, none of whom will be permitted to set up-any matter in avoidance of its operation.

“ This doctrine was distinctly announced by Chancellor Williamson in Dunn v. The Executors of Dunn, and, although that decree was reversed by the court of appeals, the same doctrine’ was subsequently held, and the principle upon which it rests-distinctly enunciated by Chancellor Vroom in Fennimore v. Fennimore, 2 Gr. Ch. 296.”

And this is the only ground assigned or in any way suggested for the refusal of the inferior court to conform to the judgment-of the superior court. The entire course of reasoning is stated with conciseness and perspicuity. It is that Chancellor Williamson (the elder) decided that a joint settlement of their final account by several executors made them, per se, jointly liable for the failure thus exhibited; that such decision had been overruled by the court of appeals; that Chancellor Vroom had afterwards distinctly held the repudiated doctrine, and that, consequently, that doctrine was the law of this state. It seems impossible to believe that this course of reasoning will be satisfactory to any lawyer; and even it, such as it is, is founded on the mistaken premises that the old doctrine, after its overthrow in this court, was subsequently held in the case of Fennimore v. Fennimore, for, by a reference to that decision, it will be made perfectly ■clear that Chancellor Vroom, on that occasion, did not reassert the old doctrine, but “ enunciated ” it simply for the purpose of showing that the decree of Chancellor Williamson, already stated, had been “ reversed in the court of appeals in the last resort and upon that very point.”

My conclusion is that it is entirely plain that the decision of this court, in the case referred to, established the rule that a joint final account and settlement by several executors, and its approval by the orphans court, does not, by reason of its own inherent force, impose a joint liability for the balance thus struck and adjudged. I cannot assent to the contrary result reached in Laroe v. Douglass, and which has been, on several occasions, followed by successive chancellors, for even my great respect for ■the eminent personage who rendered that judgment cannot lead me so far astray as to induce in my mind the feeling that a determination of this court can be reversed by the court of chancery. Consequently, as the proper legal rule was not'applied to the case now presented, the decree before us must be reversed, and the bill, so far as concerns' this appellant, should be dismissed, but without costs.

Before parting from this subject, it may not be amiss for me to express my opinion that the legal rule above stated and enforced is the best one that can be adopted as a regulation of the business to which it relates. Its effect is to exclude an arbitrary, technical rule having a tendency to ensnare the feet of unwary personal representatives, and to place each of such representatives on the footing of being responsible in the administration ■of estates for his own misfeasances and neglects. All experience -has shown that the product of the opposite rule is hardship and injustice. In not a single .instance, in which an executor has been held liable for the malversation of a co-executor by reason of his having joined in a final account with such wrongdoer, has it been made to appear that the beneficiaries of the estate would have been benefited if the executors had exhibited separate accounts. With respect to the suggestion that the “ parties in interest should not be driven to the necessity of discovering,” after final settlement, “ in whose hands the funds are or in what proportion the executors are liable for their loss,” the answer is that such knowledge can always be had for the asking; for any executor that should refuse to give the requisite information would'undoubtedly render himself liable for the misconduct of his co-executor, who, in point of fact, was the actual custodian of the assets. There is no reason to believe, from experience in this field of business, that the case has ever appeared in which any beneficiary under a will has suffered either inconvenience or loss, from the circumstance that the real depositary of the funds of the estate was unknoAvn to him. Persons experienced in affairs of this nature will agree with me that the instance scarcely ever occurs in which the parties in interest are not aware, long before the final settlement of the administration, which of the-executors has the moneys and securities of the estate in his hands.

Nor is it perceived that there is any force whatever in the notion that the deeree of the orphans court, adjudged in those settlements, that the personal representatives are jointly liable for the balance struck. It will be remembered that these judgments are in the nature of proceedings in rem and they are only conclusive on matters directly adjudicated, and those matters are exclusively the receipts of the assets and the disbursements in behalf of the estate. The question which of the accountants has in actual custody such assets, and who, therefore, are accountable for them, is not before the court, and it is not, therefore, decided.

Let the decree appealed from be reversed and the case remitted, to be proceeded with in accordance with the rule as-above expressed.

Dixon, J.

In May, 1882, Christian Weyman, of Burlington county, died, leaving a will in which he nominated Henry C. Thompson, Jacob Wilson and James L. Kemble as his executors. In J une following, the will was proved before the surrogate of that ■county, and letters testamentary were issued to the persons so nominated.

In April, 1884, an account was presented to the orphans court, as follows:

“ The account of Henry O. Thompson, Jacob Wilson and James L. Kemble, •executors of the last will and testament of Christian Weyman, * * * as well of and for the estate which hath come into their hands to be administered, as for their payments and disbursements out of the same.
“ The accountants charge themselves with the said estate, as per
inventory.................................... $18,444 50
“And pray allowance for [here follow various items amounting to]........................................................................ 980 48
“ Balance for distribution............................................$17,464 02
“Jacob Wilson, 1
“H. C. Thompson,
“ Jas. L. Kemble, J
[Executors.
“ Balance, as per account......................................................$17,464 02
[Here follow items for disbursements on settlement of the account, including commissions on $18,444.50]....................... 649 13
“ Balance in hands of executors....................................$16,814 89 ”

The usual affidavit is annexed, made by H. C. Thompson. This account was prepared by Thompson, and mailed or handed to each of the other executors for signature, and was signed by them as above indicated. It is not denied by either of these two executors that they knew the contents of the instrument, and they both admit that they signed it as the account to be filed in the court. They allege, however, that they had no knowledge as to its truth, but relied on Thompson’s statements.

This account was audited and stated by the surrogate, the statutory notice of settlement was duly given, and in July, 1884, Joseph Weyman, one of the legatees, filed exceptions to the account. These exceptions were dismissed May 18th, 1885, and at the September Term, 1885, the orphans court made and endorsed on the account the following order:

“ The surrogate having audited and stated the within account and placed the same on the files of his office, and a notice of the settlement thereof having been published according to law, and the same being now reported for allowance and settlement, and no objection being made thereto, it is ordered and decreed that the said account be allowed in all things as reported.”

Joseph Weyman now seeks, by bill in chancery, to hold all the executors responsible for his legacy under the will, and the executors Wilson and Kemble claim to be exonerated, on the ground that they never received any portion of the estate and took no part in its management, Thompson alone having acted as executor. Against this claim, the complainant sets up the account and decree above mentioned.

It is unquestionable that this was a joint account — on its face it purports to be — and it was signed by all the executors with a common purpose that it should be presented to the court as their account. It was also finally settled and allowed by the orphans court, which had obtained jurisdiction over the executors by the presentation of the account, and over all other persons concerned, by the statutory notice. Black v. Whitall, 1 Stock. 572, 585; Pomeroy v. Mills, 10 Stew. Eq. 578, 581.

We must, therefore, consider the legal effect against co-executors of such an account and the decree thereon.

It may be stated as a general, perhaps as a universal, rule, that the judgment of a court of competent jurisdiction is conclusive upon all persons over whom it has acquired jurisdiction. This general rule is expressly declared by our statute respecting the orphans court, in these words:

“ The sentence or decree of the orphans court on the final settlement and allowance of the accounts of executors, administrators, guardians or trustees, shall be conclusive upon all parties; * * * excepting also in cases where a party applying for a resettlement shall prove some fraud or mistake therein to the satisfaction of the said orphans court.” Beu. p. 775 ?¿ 108.

This provision is ds old as the court itself. Pat. L. p. 59 §77.

The question then arises, what matters are thus conclusively established by the decree?

According to a long line of decisions in the court of chancery, such a decree on such an account conclusively fixes upon the individuals joining in the account a joint liability for the balance shown by the account. Fennimore v. Fennimore, 2 Gr. Ch. 292, 296; Laroe v. Douglass, 2 Beas. 308; Schenck v. Schenck, 1 C. E. Gr. 174; Suydam v. Bastedo, 13 Stew. Eq. 433; Tehan v. Maloy, 18 Stew. Eq. 68. This ruling, however, does not seem to be consistent with the judgment rendered by the court of last resort in Dunn v. Dunn’s Executors (May Term, 1831), according to the statement of Chancellor Vroom. See 2 Gr. Ch. 296. In that case Chancellor Williamson had decided that two executors, having filed a joint account which had been settled and allowed by decree of the orphans court, “ought to be jointly charged with the balance found in their hands by that decree,"” and he had decreed accordingly; but his decree was reversed on appeal of one of the executors, by a vote of eight to six, and Chancellor Vroom, who was president of the court of appeals at the time, says the reversal was on the very point of joint liability, and was calculated to unsettle the course of decision on this important question.

It is our duty to follow the deliberate judgment of the court whose successors we are, unless it appears to be “ flatly absurd or unjust,” as Blackstone puts it (1 Com. 70), or “except for very cogent reasons and upon a clear manifestation of error,” in the words of Kent. 7 Com. 476. If I were driven to consider the final decision in Dunn v. Dunn’s Executor's, as holding that the decree of the orphans court was not conclusive upon the executors with regard to all matters open to litigation respecting their account, then I would be prepared to say it was “ flatly absurd ” and presented “ a clear manifestation of error,” for, as before stated, such conclusiveness is almost essential to the judgments of judicial tribunals, and is expressly awarded by statute to the decrees of the orphans court upon such accountings. But I do not so interpret the decision in Dunn v. Dunn’s Executors. I regard it as holding merely that the decree of the orphans court does not purport to adjudge in whose hands the estate accounted for has been or is. The orphans court decides that the executors-have received the assets with which the account is charged, and-have properly disbursed the items with which the account is credited, and that there remains in their hands the balance shown, but whether all the executors, or only some or one of them, received these assets, made these disbursements, or holds this balance, are questions not presented for consideration, and therefore not adjudicated. Yet these are the very questions on which the joint or several liability of the executors depends.

This view of the effect of the decree of the orphans court is, I think, correct.

It is true that, in stating a joint account, executors and others usually say, “they charge themselves with,” and “they pray allowance for,” and the balance is “ in their hands,” but in fairness this language should not be taken literally as denoting individual conduct. Manifestly it is not so intended, for it rarely happens that co-executors have jointly received or paid or held their testator’s property, and the ordinary phraseology of their accounts should not be deemed to import so unusual an occurrence. In a reasonable sense, a charge against one executor is a charge-against all officially, a payment by one is a payment by all officially, and a balance in the possession of one is in the hands of all officially. This is the true meaning of the joint account and the decree thereupon. But when it is sought to use this decree against the individuals, then it is open to them to show their individual acts not inconsistent with the account and decree. They may not show that no executor received the assets specified, but they may show which one did; they may not show that at the time of the accounting no executor had the balance stated, but they may show which one had it.

Hor can it be reasonably claimed that, by joining in an account, the executors- have expressed an intention or willingness to become jointly chargeable with each other’s acts. It -is not the appropriate function of an accounting to assume obligations which the facts as reported would uot create, and so serious a responsibility as that suggested should not be inferred from a transaction which at most is equivocal.

The rule thus indicated is not only in harmony with general principles, with the statute and with the decision of this court in the case cited, but is in itself eminently just. While it prevents a mere form from fastening upon co-executors and trustees a liability which the substance of things would not impose, it exacts of them this plain duty, that they shall not present to persons interested in the estates confided to them, and submit to the court for solemn adjudication, an account which they do not then know to be true. With the right which the law gives, of being relieved from the effect of fraud or mistake, in the orphans court and in a court of equity, no fear of injustice need be entertained.

In the present case the chancellor’s decree is that the three executors are to be jointly charged with the balance found upon their accounting, $16,814.89, with interest from the date of said accounting.

It is substantially conceded that Thompson alone received and managed the assets of the estate. He absconded in the year 1890, six years after the accounting, and then whatever of the estate had not been paid in due course of administration or to legatees, had been wasted or embezzled by him. Whether he had wasted or embezzled anything before presenting the account is uncertain. The only suggestive circumstance is that mortgages, amounting to $12,270, which were inventoried by the executors simultaneously with the account, had, in fact, been previously turned into cash by Thompson. As, however, these mortgages did exist at the death of the testator and the inventory should probably be read as of that time, this circumstance may be insignificant.

Evidently the cause was tried below on the theory, sanctioned by so long a practice, that a joint account created a joint liability. This being now adjudged erroneous, I think the decree should be reversed, as to these appellants, and that an account should be taken, charging them with only so much of the balanee before stated as shall be found not to have been in the Jhands of Thompson when the account was filed.

Justices Depue, Van Syckel and Mague concur in this opinion.

For reversal — The Chief-Justice, Abbett, Depue, Dixon, Garrison, Lippincott, Mague, Reed, Van Syckel, Brown —10.

For affirmance — None.


author: Depue, J.

text:
    Otto Bernz, appellant, v. The Marcus Sayre Company, respondent.
    1. A contractor, for erecting a building under a contract which stipulated for payment upon the certificate of an architect that the work was completed according to contract, gave complainants an order payable out of the amount to become due, which the owner accepted and agreed to pay on condition that the work was approved by himself and his'architect. The contractor abandoned the work before completion. The debt for which the order was given was for materials furnished for the erection of the building, and the complainants, at the request of the contractor, released his right to a lien on the building. — Held, on demurrer to the bill, that a suit in equity by the complainants against the owner would not lie to compel the payment of the order, the complainants’ remedy (if any) being by a suit at law upon the contract contained in the acceptance of the order.
    2. Assuming that the order given by the contractor was an equitable assignment, its effect was simply to subrogate the assignee to the rights of the assignor under the contract. Such an assignment would not enure to deprive the other party to the contract of the benefit and advantage of the terms and conditions contained in it.
    3. The building contract contained a provision that if the contractor, at any time during the progress of the work, should refuse or neglect to supply a sufficiency of materials or workmen, the owner should have power to provide materials or workmen after three clays’ notice to the contractor, and deduct the expense from the contract price. — Held that, if the contractor abandoned, the work before completion, neither the contractor nor his assignee could, require the owner to complete the work and compel him to account for the balance of the contract price after deducting the cost of completing the work.
    On appeal from an order advised by Vice-Chancellor Bird, in Marcus Sayre Co. v. Bernz, who filed the following conclusions:
    The complainant holds an order for $400, drawn by a building contractor upon the defendant, who was the owner. The object of the bill is to compel payment of this money or to secure the payment of the whole amount due upon the contract into this court. The bill alleges that the order was presented to the defendant, and that he accepted it by first writing over his name “ if the work should be approved by myself and the architect.” The bill further alleges that the contractor left the ■ work unfinished, but that the amount of work necessary to complete it was but slight. It also alleges that the contractor gave this order upon the 29th day of August, 1892, upon which day it was so accepted, and that on the 3d of September the coniractor abandoned the work and departed from this state, and that his whereabouts is entirely unknown to the complainant. It is likewise stated that the complainant urged the owner to complete the building according to the contract, and that in February last he served written notices upon him requiring him to complete the building according to the contract and to pay the balance which might remain due in his hands into this court for the benefit of those who are entitled thereto, but that he has-wholly neglected so to do. It is charged that this conduct upon the part of the defendant is fraudulent, and that his refusal amounts to a fraud upon the complainant.
    The first cause of demurrer goes to the allegation of fraud, and insists that it does not sufficiently appear upon the bill that the defendant is liable to any such insinuation. It is my clear judgment that in this respect the demurrer cannot be sustained.. The bill shows that the houses are very nearly completed; that the defendant has taken possession of them, and has for sometime enjoyed the rents and profits of them; that under the contract it was expressly provided that he should have the right to finish the same in case the contractor• neglected so to do; that he has been requested by the complainant, who had an interest therein, to comply with the terms of the contract in this respect, and that he has failed for several months to specifically perform his promises. It seems very plain to me that when the Mechanics’ Lien law is taken into the account that all persons who supply labor or materials to the building mentioned in such contract have an interest therein which will justify them in claiming the aid of this court, and that when it - becomes necessary for them so to do in order to protect their rights, he who willfully refuses to perform his part of such a contract is clearly guilty of fraud in the-eye of the law.
    The next cause assigned for demurrer is that there is no allegation in the bill that the defendant ever gave the three days’ .notice required by the contract to the contractor that he must •complete the said building according to the contract, and in case he failed so to do that the defendant would then proceed to complete the building; nor that the defendant has had an opportunity to make such service. This is founded upon the allegation that the contractor abandoned the work on the 3d of September, and that his whereabouts has since been unknown, so that it appears by the bill that it is impossible for the defendant to give such notice. There is no foundation whatever for objection in this. Clearly, if under such a contract the owner could take advantage of the absence of the contractor and offer it as an excuse for not finishing the work when it was so nearly completed as in this case, and refuse to pay all laborers and material-men, the law would work an unheard-of mischief. Besides, the contract expressly states “ that if the contractor, at any time, refuses to supply material or workmen, the owner may supply the :same and complete the work according to the contract.” Without such provision the court would have no difficulty in fixing the rights and liabilities of the respective parties; but with such provisions there is not room for even hesitation, say nothing about discussion.

      It is also urged that the bill is defective in that it does not expressly declare that the time has as yet arrived within Avhich the contractor was to finish the contract. The bill shows that the contractor earned his first and second payments, and that they were paid, and that he also earned the greater part of the third and last payment; that upon the same day upon which the said order was given and accepted, the complainant, at the request of said contractor, released all his rights and interests in the said buildings; that on the 3d of September the said contractor left for parts unknown, and that at that time he had almost but not quite completed the buildings according to his-contract; and that the said defendant has taken possession of said houses^ has leased the same and has collected the rents; and that when the complainant again demanded the payment of the said order, after the defendant had taken possession of the buildings, the defendant refused to pay the same, and gave as a reason therefor the fact that the contractor had not finished the said buildings according to the contract and specifications.
    In my judgment, this brief outline of the statements of the bill forms a satisfactory answer to the last ground of demurrer and supplies that certainty to a common intent which is essential to constitute good pleading. It shows that for more than five months before the bill was filed the contractor had abandoned the contract, and that at that time the buildings were ^almost but not fully completed, and that the defendant was requested to pay the amount of the order which he had accepted, and that he refused to do so, and assigned as a reason for his refusal that the contractor who gave the order had not completed the buildings according to the terms of the contract, showing not that the money under the terms of- the contract in point of time, with reference to any particular date, was not yet due, but that it was-not due because the contractor had failed to complete the contract according to the terms thereof, showing that he was in-default. Row, it thus appearing that the contractor was in default, and it also appearing as above stated that when the contractor fails to supply material or workmen for the completion of said building, the owner has the right to do so, then clearly it is the duty of the owner to perform the work which he has by his contract obliged himself to perform.
    Nor is there substantial ground of objection to the bill because of the want of an allegation that the buildings were completed to the satisfaction of the architect. The bill expressly meets this requirement of the contract and avoids it by first stating that the buildings are not completed, and showing that, according to the terms of the contract, it is the duty of the owner him* self to complete them. As above intimated, if the neglect of the owner, under such circumstances, should be supported by the courts, it would work a perpetual bar to the just claims of every workman and materialman who relied upon the supposed beneficial provisions of this statute.
    The insistment ■ that the complainant has a complete remedy at law is not only answered by the above paragraph, but also by the fact that the order was conditionally accepted, which condition, as above clearly appears, has not yet been overcome. See, also, authorities in the case of Bradley & Currier Co., Limited, v. Bernz, 6 Dick. Ch. Rep. 437.

    The last cause of demurrer is that the contractor has not been madeja party. It is insisted that he has an interest in the fund in hand. He may have an interest in the fund in hand, but he has no interest whatsoever in so much of it as is necessary to satisfy the order which he has given. To that extent he has disposed of his interest. The complainant asks for nothing beyond that. The rest of the fund the complainant does not propose to meddle with, but by its bill proposes to leave that to the care of the defendant. The bill plainly admits the rights of the defendant, and the law as fully provides for the protection of the defendant. The defendant is presumed to know the extent of his rights. Let him discover by proper pleadings to the complainant and to the court, and in ease that it appears that others have equal or superior rights to this fund with the complainant, the bill provides for such contingency by praying that the whole fund may be brought into this court. It hardly needs the suggestion that the defendant, by his cross-bill, can show a completion of this contract according to the terms thereof, availing himself of every right thereunder, and so working out a complete settlement of all the questions which arise under the Mechanics’ Lien law.
    The demurrer should be overruled, with costs.

      Mr. Elias F. Morrow, for the appellant.

      Messrs. Johnson & Filch, contra.

   The opinion of the court was delivered by

Depue, J.

The bill in this case was filed by the Marcus’Sayre Company against Otto Bernz. No other persons are parties to this suit.

The bill is demurred to for'want of equity, and one of the causes of demurrer assigned is that the complainant’s remedy, if any, is by a suit at law.

The facts as they are gathered from the averments in the bill are these: One Frederick B. Blenkert made a contract in writing with the defendant to do the mason work for the three houses 274, 276 and 278 South Ninth street, in the city of Newark, and to furnish the materials for completing and finishing the same according to the specifications for the mason work, for the sum of $1,300, to be paid in three payments, at certain stages in the progress of the work, on the production of the certificate of the architect that the work had been done in strict accordance with the drawings and specifications, and that the said architect considered said payments properly due to said contractor. The last payment of $600 was to be made when the buildings were all completed in a good and proper manner, as per plans and specifications. The contract was dated June 1st, 1892, and was duly filed in the clerk’s office before the buildings were commenced.

The complainants furnished to Blenkert materials for the said mason work, for which he became indebted to the complainants in the sum of $400. For this indebtedness Blenkert gave complainants an order in these words :

“ Newark, N. J., August 29th, 1892.
“Otto Bernz — Pay to Marcus Sayre Company the sum of four hundred dollars and deduct the same from my contract on job 274, 276 and 278 South Ninth street.
“Fred. B. Blenkert.”
This order being presented to Bernz by the complainants, he wrote and signed at the foot of it an acceptance, as follows:
“ Newark, N. J., August 29th, 1892.
“ I agree to accept the above order and to pay the mentioned amount if work is approved by myself and architect.
“Otto Bernz.”

On the same day the complainants, at the request of Blenkert, released his right of lien upon the said houses.

The bill charges that Blenkert proceeded with the execution of his contract and earned his first and second payments, which were paid to him without the architect’s certificate, and that he had earned the greater part of the third and final payment and had done extra work and furnished extra materials under the contract, and that the said defendant has not paid the third payment mentioned in the contract nor for the extra work and materials. It further alleges that Blenkert, on or about the 3d of September, 1892, left the city of Newark and “departed for some place unknown to the complainants,” and that at the time of his departure he had almost but not quite completed his contract, and that there was enough due him from the defendant for work done under the contract and for extra work and materials and for laying flagging in front of the houses to enable the defendant to complete the houses according to the plans and specifications and pay the complainants’ order, and that the defendant has let out portions of the said houses to tenants and collected rents therefor. The defendant refused to complete the buildings in fulfillment of Blenkert’s contract or to pay the complainants the amount of. the order. Hence this suit in a court of equity.

The relations of the parties concerned in this controversy, their several and respective rights, duties and obligations, rest upon contract. The defendant’s contract with Blenkert was to pay the contract price upon the certificate of the architect, the final payment to be made upon the completion of the work according to the plans and specifications and on the production of the architect’s certificate that Blenkert had so done the work and that the payment to be made when the work was completed was properly due to the contractor. A stipulation of this character in a building contract is valid and binding, and no action can be maintained upon it without the production of the certificate or proof that its production was waived or that the certificate was fraudulently withheld. Byrne v. Sisters of St. Elizabeth, 16 Vr. 213; Chism v. Schipper, 22 Vr. 1. On the facts disclosed in this case, the defendant, by the terms of his contract, was under no obligation or duty to pay Blenkert.

The obligation of the defendant to the complainants also arose upon a contract between them expressed in the acceptance of the order. By the acceptance, the defendant agreed to pay the order on condition that the work was approved by himself and the architect. The contract contained in the acceptance is a contract cognizable in an ordinary suit at law, as clearly so as the acceptance of a draft or bill of exchange. And if, upon the trial of such a suit, the architect’s certificate was fraudulently withheld or its production was waived by the acceptance of the work as it was done, recovery may be had as upon a quantum meruit. Chism v. Schipper, supra; Bozarth v. Dudley, 15 Vr. 304. The problem for consideration is whether the facts appearing in this bill are sufficient to withdraw this litigation from a court of law and commit it to- the cognizance of a court of equity.

The prayer of the bill, in the first instance, is that the order of Blenkert, in favor of the complainants, be decreed to be an equitable lien upon the moneys due and to grow due to him under his contract with the defendant. An order such as the complainants obtained from Blenkert would, in equity, be treated as an equitable assignment, which would be protected and enforced in equity. It was so decided in Superintendent of Schools v. Heath, 2 McCart. 22, and in Kirtland v. Moore, 13 Stew. Eq. 106; The Board of Freeholders v. Lindsley, 14 Stew. Eq. 189; Lanigan v. Bradley, 5 Dick. Ch. Rep. 201, 796. But the effect of such an assignment was merely to put the complainants upon the footing aftd in the place of Blenkert, and to subrogate them to his rights under his contract. Neither in law nor in equity will an assignment by one contracting party of his interest in a contract or of money due or to grow due thereon enure in favor of the assignee, to deprive the other party of the benefit and advantage of the terms and conditions contained in the contract. The cases above cited were decided on bills of interpleader filed by the owner, and the money which constituted the fund in controversy was admitted to be due and was paid into court. The-infirmity in the complainants’ case, on the doctrine of equitable assignment, wholly ignoring the terms of the defendant’s contract of acceptance, is that there is no money in the defendant’s hands due to Blenkert under his contract — no fund to which the assignment attached.

Nor is there any ground for resort to a court of equity arising from a multiplicity of parties claiming adversely to each other. In Shannon v. Mayor of Hoboken, 10 Stew. Eq. 123, 318, the fund in dispute was admitted to have been earned by the contractor under the building contract. The city claimed to retain it in virtue of a provision in the contract authorizing the city to withhold moneys earned under the contract and apply them in payment of debts contracted by the builder for labor and materials. The contractor had drawn orders in favor of certain persons upon the-city, and several persons who had furnished labor and materials in the performance of the contract had presented to the city claims for payment under the stipulation above mentioned. The question in controversy was, which of these claimants was entitled to the fund in the hands of the city, and' in what order the parties should be paid. Because of the conflicting claims of several parties to the' fund, chancery acquired jurisdiction. A court of equity, into which all persons interested might be brought as parties, was necessary to settle the rights of the several claimants and determine the order in which they were entitled to participate in the fund. The bill, though not in form, was, in substance, a bill of interpleader, and all persons claiming an interest in the fund were made parties.

No circumstances of this nature exist in this case. The complainants have the contract of the defendant to pay the sum of money named in the order, qualified only by the condition expressed in the acceptance. In the enforcement of this contract, third persons, whether they be claimants under the Mechanics’ Lien law or otherwise, have no concern. The undertaking of the defendant is to pay absolutely on the condition named in the acceptance. The conflicting claims of other persons to the money are not provided for. The complainants have so treated the case. No persons are made parties to this suit except the defendant, Bernz.

In the next place, the complainants rely upon a provision in the contract of Blenkert with the defendant, that should the contractor, at any time during the progress of said work, refuse or neglect to supply a sufficiency of materials or workmen, the owner should have power to provide materials or workmen, after three days’ notice in writing has been given to said contractor to finish the said work, and the expense should be deducted from the amount of the contract.

Acting on the assumption that this provision created an obligation or duty on the part of the defendant to complete the houses in fulfillment of Blenkert’s contract, the complainants, • on the 8th of February, 1893, served on the defendant the following notice signed by the complainants :

Take notice that we do demand that, without delay, you proceed to com■plete the houses numbers 274, 276 and 278 South Ninth street, in the city of Newark, New Jersey, to the extent required by the articles of agreement entered into by one Fred. B. Benkert with you, for the doing of the mason work and for the furnishing of the mason’s materials required by the drawings and specifications mentioned in said articles of agreement, as necessary for the completion of the said work, and that, after deducting the expense thereof from the amount of the last payment mentioned in said articles of agreement, and the amount now in your hands, which has been earned by said Fred. B. Benkert for extra work done and materials furnished in and about the erection of the said houses, you pay the overplus above the amount required for the completion of said house», up to the sum of four hundred dollar's, to us, under ■ an order given to us by said Fred. B. Benkert, bearing date August 20th, 1802, for four hundred dollars, and conditionally accepted by you.”

The charge in the bill is that the defendant refused, to comply with this request, with intent to cheat and defraud the complainants, to the end that the complainants be deprived of all remedy at common law. The prayer for relief adapted to this feature of the case is that the defendant account, in the court of chancery, for the cost of completing the said houses as aforesaid, and that he pay into court the balance left in his hands, after deducting a sufficient amount to finish and complete the said houses ■ according to the drawings and specifications.

The provision appealed to by the complainants is usual in' building contracts. Such a provision is designed to confer upon the owner a right, or, as is expressed therein, a power to be exer- ■ cised in his discretion. It applies to a contract in the course of its execution, and is subject to the condition that the owner shall give the contractor three days’ notice in writing, requiring him to finish the work. It neither supersedes nor qualifies the other provisions in the contract, except as the owner may elect to avail himself of the privilege conferred. Under a contract like that between Blenkert and the defendant, the contractor is not at liberty to abandon the work and require the other contracting party to complete it for him, and compel him to account for the balance of the contract price after deducting the cost of completing the work. Discretionary powers of a similar character are found in other contractual relations, and it has never been thought that therefrom an obligation or duty arises in favor of the other party. A landlord may have power to take possession of demised premises under a right reserved in the lease to re-enter for non-payment of rent, but it has never been considered that the tenant may compel his landlord to re-enter or avail himself of his neglect or refusal to re-enter as a defence to an action for rent, although the tenant may have abandoned possession of the premises. A mortgagee may have a right to enter upon and take possession of mortgaged premises on non-payment of the princi— pal or interest of the mortgage debt, but it has never been suggested in proceedings in equity to foreclose. the mortgage or for redemption, that the failure of the mortgagee to exercise this right will impose upon him an obligation either to abate the interest of or account for the rental value of the premises, although the premises have been left vacant and unoccupied, and the proceedings in the equity court are taken by or against .a subsequent mortgagee or encumbrancer. As between Blenkert, to whose rights the complainants have succeeded, and the defendant, it is entirely clear that Blenkert could not avail himself of this provision in the contract to avoid the consequences of his failure to perform his contract.

Nor is the charge of fraud sustained by any facts set out in the bill. The defendant placed his contract with Blenkert on file, in conformity with the Mechanics’ Lien law. The release executed by the complainants was given at the instance of Blenkert, and they voluntarily accepted, in lieu of the lien provided for by the Mechanics’ Lien law, as modified by the act of 1890 (P. L. of 1890 p. 449; Anderson v. Friedlander, 85 Vr. 375), an agreement by the defendant to pay the amount of the order, on a condition plainly expressed therein. There was no representation or concealment by the defendant which would give rise to a surmise of fraud.

The complainants have no ground for equitable relief under •the provision in question, for the reason that that provision created no obligation or duty on the part of the defendant.

If it had api>eared that the plaintiffs had offered to complete Blenkert’s contract, and that the defendant had refused to permit them to do so, there might have been plausible ground for equitable relief. But no such case appears, and on the bill as framed there are no facts which would withdraw this litigation from the forum of a court of law. Whatever remedy the complainants have must be obtained by suit on the defendant’s contract in the acceptance of the order.

The decree overruling the demurrer should be reversed, and a Recree entered sustaining the demurrer and dismissing the bill.

For reversal — The Chief-Justice, Abbett, Depue, Garrison, Lippincott, Mague, Reed, Yan Sycicel, Bogert, Brown — 10.

For affirmance — Dixon, Krueger — 2.


author: Dixon, J.

text:
    Robert L. Barber, appellant, v. The West Jersey Title and Guaranty Company, respondent.
    In case due notice of the final hearing of a cause in the court of chancery was given, and the cause was accordingly heard, but one of the parties did not appear and was not represented at the hearing, and the decree was made in his absence, he cannot appeal from such decree to this court.
    On appeal from an order advised by Yiee-Chancellor Pitney, whose opinion is reported in West Jersey Title Co. v. Barber, 4 Dick. Ch. Rep. 474.

      Mr. David J. Pancoast, for the appellant.

      Mr. Thomas E. French and Mr. Samuel H. Gh'ey, for the respondent.
   The opinion of the court was delivered by

Dixon, J.

The questions principally discussed on this appeal — whether the complainant has a right to inspect and make copies of the public files and records in the office of the clerk of Camden county when that is not necessary for the conduct of any particular transaction which it has in hand, but is only convenient to prepare it for the prompt consummation of such business as may afterwards come to it, and whether a bill in equity is the appropriate means of enforcing its right in the premises — are questions which, in our opinion, are not free from difficulty; but, upon the case as it stands, we are not required to decide them, for this appeal is not properly before the court.

The record shows that due notice of the final hearing in the court of chancery was given to the solicitor of the defendant and that the cause was accordingly heard, but that the defendant did not appear and was not represented at the hearing, and the decree was made in his absence.

In Townsend v. Smith, 1 Beas. 350, this court decided that, from a decree thus rendered, the absent party could not take au appeal, but, if dissatisfied, must apply to the'chancellor for a rehearing.

This objection to the appeal is presented in the brief of counsel for the respondent, and therefore cannot be disregarded. Consequently, the appeal must be dismissed.

For dismissed — The Chief-Justice, Depue, Dixon, Garrison, Lippincott, Magie, Reed, Bogert, Brown,. Krueger — 10.

Contra — None.


author: Reed, J.

text:
    Lena Harms, appellant, v. Thomas R. Hughes, respondent.
    Tlie sum to be paid by a mortgagee seeking to redeem a tax title is fixed! by the charter of the Town of Union- (P. L. of 1864 p■ 568), and where a decree was made fixing the sum upon a different basis, upon an appeal taken by the holder of the tax title, no appeal having been taken by the mortgagee, it appearing that the sum allowed was at least as much as would have been-allowed if the charter provision for compensation had been adopted — Held, that there appears no ground for reversal. •

      On appeal from a decree advised by Vice-Chancellor Pitney in Hughes v. Harms.

      ' Messrs. Collins & Corbin, for the appellant.

      Messrs. Randolph, Condiet & Black, for the respondent.
   The opinion of the court was delivered by

Reed, J.

The bill was filed by a mortgagee to redeem the mortgaged premises from a tax title held by Lena Harms by assignment from the Town of Union.

A decree was made fixing the amount of money which the mortgagee was to pay to the assignee of the tax title upon such redemption.

The appeal is taken by Lena Harms for the reason that, in fixing the amount of her compensation, she has been improperly charged with rent while she was in possession under the tax title, and that she has not been allowed a sufficient sum for improvements put upon the property.

The grounds of appeal display the considerations which underlie the method of ascertaining compensation adopted in the court of chancery.

The charter of the Town of Union (P. L. of 1864 p. 568),. however, fixes the terms upon which a redemption of titles, purchased at tax sales made by the municipality, can be obtained. The condition imposed is the repayment of the purchase-money paid, together with any other sum paid for tax or assessment, with fifteen per cent, interest.

This express provision seems to exclude all consideration of the matter of rents or improvements in arriving at the amount of money which the mortgagee is to pay.

The mortgagee, however, has taken no appeal from the decree, so he is not in a position to complain.

The appeal is taken by the owner of the tax title, and is grounded upon the insistence that she has not been allowed as much as she should have been allowed under the rule for ascertaining such amount which was adopted. But it appears that she was allowed at least as much as she would have been permitted to receive under the statutory rule of compensation. She, therefore, has no ground of complaint.

Decree affirmed.

For affirmance — The Chief-Justice, Abbett, Depue, Dixon, Garrison, Lippincott, Magie, Reed, Van Syckel, Bogert, Brown, Smith — 12.

For reversal — None.