source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    William H. Peirsol et al. v. Lydia North Roop et al.
    [Filed April 26th, 1898.]
    1. When, by a will, a power of sale is given to executors, to be exercised with the consent of the widow, signified by her joining in and becoming a party to the deed, the exercise of the power is dependent upon the joining by the widow in a deed as prescribed by the testator, and on her death, without having consented in the mode prescribed, the power is gone.
    2. Where there is no direction in the will to sell the real estate, or to convert the whole estate into money, and the residue is given as “my residuary estate, real and personal,” in equal shares to sons and daughters, with a provision that the daughters’ shares shall be invested in bond and mortgage or city loans, and that the principal sum of it shall' be paid over to subsequent legatees, the direction to invest and the bequest over of the principal sum will be construed to apply only to the personalty of the share so given to the ■daughters.
    3. Where a bequest in a will gives an absolute estate of personal property to the testator’s daughters, but provides for its investment by trustees, and the payment of interest to the daughters during their lives, and afterwards a subsequent bequest gives an absolute estate in the same portions to the children of the daughters, the first bequest to the daughters will be held to be of a life interest only, and the trustees will be directed to hold and invest the fund, pay the interest on her share to each of the daughters during her life, and, on her death, the principal to her children.
    4. Where the bequest gives a portion of personalty to a daughter during her life, and, on her death, to her children, and if she should die unmarried and without leaving lawful issue her surviving, then over to her surviving brothers and sisters, the gift over takes effect in case the daughter should not during her life marry, or should not leave issue surviving her at the time of her death.
    On bill, &c.
    This bill is filed by the complainants as executors and trustees under the last will of Joseph N. Peirsol, against his devisees and legatees, who were also his heirs-at-law, for the purpose of obtaining the instruction of this court touching the powers and duty of the executors and trustees with respect to certain trusts imposed upon the complainants by the terms of the will.
    The decedent, Joseph N. Peirsol, died seized of lands in Atlantic county, on March 15th, 1879. His will bears date January 29th, 1879, and was proved before the register of wills of the city of Philadelphia, March 21st, 1879, and an exemplified copy under the New Jersey statute was obtained to be recorded in the surrogate’s office of Atlantic county on October 22d, 1879. The testator, after directing the payment of his debts, gives all the rest and residue of his property, real and personal and mixed,

      “ unto my executors and trustees hereinafter mentioned, their executors, administrators and assigns, in trust, nevertheless, to place and continue the personal estate thereof at interest on Bonds and mortgage secured on good landed security or improved property in the City of Philadelphia, or invest the same in State or City loans or funds from time to time, and to call in, replace and reinvest the same when and as often as they, my said executors and trustees, may deem proper, and to pay the net interest and income arising therefrom and also the net rents, issues and profits of the real estate thereof when and as the same shall be received unto my beloved wife, Mary Ann Peirsol, for and during all the term of her natural life, if she so long remain my widow, single and unmarried, but not otherwise, and to her good care and guidance and parental counsel I entrust my children for maintenance and education during their respective minorities without any charge to them therefor. [The testator here provides for the disposition of his estate in case his wife, Mary Ann Peirsol, should marry after his death. No such marriage took place.]

      “And from and immediately after tlie decease of my said wife I give and bequeath my said residuary estate, real and personal whatsoever and wheresoever, including the said principal sum of thirty thousand dollars, unto all and every of my child and children that shall be living and the lawful issue of such of them as shall then be deceased, their respective heirs, executors administrators and assigns forever, in equal parts and shares if more than one, so nevertheless that such lawful issue take and receive such part and share only as his, her or their deceased parent would have had and taken if then living.

      “Item. It is my will and I desire that the share of my estate to which my daughter shall be entitled upon the decease or intermarriage of my said wife, shall be invested by my executors and trustees hereinafter named in bond and mortgage secured on good landed security or improved property in the City of Philadelphia or in some good and productive State or City Loans or Funds, and to pay from time to time the net interest and income arising therefrom when and as the same shall be received, unto each of my said daughters, for their sole and separate use during her or their natural lives, without being in anywise subject to the control or interference of any husband she or they might have, and her or their receipt alone shall be sufficient discharge to my said executors and trustees therefor; and from and immediately upon the decease of such daughter or daughters, I do give, devise and bequeath the principal sum of such share of my residuary estate to which such deceased daughter or daughters was entitled to, unto all and every the child or children of such deceased daughter or daughters, their respective heirs, executors, administrators and assigns forever, in equal parts and shares, so nevertheless that such lawful issue take and receive such part and share only as his, her or their deceased parent would have have been entitled to; but in case any of my said daughters should die unmarried and without leaving lawful issue her or them surviving, then and in such case I do give, devise and bequeath such part and share of my said residuary estate to which such daughter or daughters was entitled to unto all and every her or their surviving brothers and sisters, their respective heirs, executors, administrators and assigns forever in equal parts and shares.

      “Item. I nominate, constitute and appoint my sons, William H. Peirsol and Joseph N. Peirsol, Junior, executors and trustees of this my last will and testament, and I do hereby authorize, direct and empower them, my said executors and trustees, by and with the consent and approbation of my said wife, Mary Ann Peirsol, signified by her joining in and becoming a party to any deed of conveyance or other instrument of writing at any time after my decease that they may deem proper and advantageous to my estate, to sell and dispose of all or any part of my real estate, either at public or private sale, for the best prices that can be reasonably be had or gotten for the same, and to grant and convey the same or any part thereof unto the purchaser or purchasers thereof, his or her or their heirs and assigns forever, without any liability on the part of the purchaser or purchasers thereof or their heirs or assigns, to see to the proper application of the purchase-money.”

      By a codicil to the will, which codicil is also dated January 29th, 1879, the testator makes the following recital:

      “ Whereas, by the second item of this my will, I do authorize and direct my said executors and trustees therein named to place and continue my personal estate at interest on Bond and Mortgage, or invest the same in State or City Loans or Funds,” &o.

    And the codicil then provides that certain stocks may, at the discretion of the trustees, remain as invested at the time of his death, or may be disposed of by the executors and trustees at their discretion, and the executors and trustees are exonerated from loss by reason of any depreciation of the stock.
    The executors having proved the will entered into the possession of the whole estate of the testator, including the possession of the Atlantic county property, and they have continued in the possession and management of it up to the filing of the bill in this cause.
    At the time of the testator’s death, he left him surviving his widow, Mary Ann Peirsol, and his six sons and three daughters. Mrs. Peirsol, the widow of the testator, died on December 30th, 1886, without having married again. An unmarried son died on November 7th, 1888, childless and intestate. There are now surviving three married sons (one of whom has a child), two unmarried sons, two unmarried daughters and one married daughter, eight in all, and all of them are defendants in this bill. It should be observed that all the children survived the testator and his widow.
    By deed dated April 3d, 1894, one of the sons conveyed to the other four all of his undivided one-eighth part in the Atlantic county property.
    The lands in Atlantic county are unimproved, and produce no substantial income, except one property on Michigan avenue, in Atlantic City, which consists of dwelling-houses, the rents from which have been collected by the trustees. The trustees, during the lifetime of the widow, paid over to her all the income which was derived from the estate, in accordance with the directions of the will. They have retained possession of the estate, including the Atlantic county property, since the death of the widow, and now disputes have arisen between the trustees and the daughters of the testator as to whether or not the trustees, since the death of the widow, have, under the terms of the will, any control over the interests of the daughters in the Atlantic county real estate, the latter insisting that by the true construction of the will they are the absolute owners of that property free from any trust, while the trustees are uncertain whether, by the terms of the will, it is their duty to retain the control and possession of the Atlantic county real estate in obedience to the trust which they have undertaken to perform. The daughters insist that it is the duty of the trustees either to sell the real estate or to convey or surrender their shares to them, the daughters. The trustees ask to be advised as to whether they have any power of sale over the real estate' since the death of the widow, and whether they may safely, under the terms of their trust, surrender the real estate to the daughters, or whether it is included in that part of the residuary estate directed by the will to be retained by them during the life of the daughters, and they ask to be instructed as to their power and authority under the will touching the rights and interest of the daughters in the lands in Atlantic county.
    All the facts set forth in the bill are admitted to be true by the answer. All the defendants are of full age.

      Mr. Thomas E. French, for the complainants.

      Mr. Samuel H. Richards, for the defendants.
   Grey, V. C.

By the terms of the testator’s will, after the payment of his debts, he gives all his estate of every character to his executors and trustees upon a trust expressed in the will, by which he directs the trustees “ to' place and continue the personal estate thereof at interest,” Ac., and to pay the income therefrom and also “ the net rents, issues and profits of the real estate thereof” to his wife during the term of her natural life, so long as she remains his widow, and to her care and guidance he entrusts the care and maintenance of his children.

The first disposition of the testator gives the residue of his estate, real and personal, to the trustees, to secure to his wife the income thereof during her life or widowhood, thus indicating the dominant purpose in the will, namely, the support of the widow and children. Though his residuary estate included both real and personal, he does not use any words which give a fee to the trustees. But on the widow’s death the testator gives the whole residue, real and personal, in fee, by apt words, to such of his children as may then be living, and, per stirpes, to the issue of those who may have precedently died, their heirs, executors, administrators and assigns, as tenants in common, in equal shares. This gift to his children generally and to the issue of any deceased child of the residue of his real and personal estate, if not modified elsewhere in the will, would have vested in the daughters as well as in the sons who survived their mother an absolute estate in fee-simple in their several shares, in both the residuary real and personal estate.

It should be noted that the period when the estate of the children of the testator vested was at the time of the death of their mother, and that those of them then took, who then survived. In actual fact they all then survived, so that the gift to the issue of any deceased child did not operate.

Theu testator then’ expresses his will and wish that the share of the daughters shall be invested by the executors and trustees on bond and mortgage or in city or state loans, and that the interest and income therefrom shall be paid to the daughters for their separate use, during their lives, free from any husband’s control. This clause can only apply to that portion of the residuary estate which can be invested. In the next clause the will refers to “ the principal sum” of such shares. By these expressions the testator must be understood to intend an investment and care-taking of the personalty portion of the residuary estate, and not of the real estate portion, for the words of the •will .show that he knew the different characteristics of real and personal property, and that he intelligently used words apt to describe them. These directions for investment and for payment of principal sums are not such as would have been used by the testator if he had the disposition of real estate in his mind, for though they are forceful when referring to personalty, they are senseless if applied to real estate. Town lots could not be invested, nor could- they be paid over in principal sums. The direction that the trustees should invest must, therefore, be held to apply only to the personalty portion of the daughters’ shares.

The testator makes no further reference to the portions of his estate which he gives to his sons, but after expressing his wish that the trustees should control the personalty of his daughter’s share, as above shown, he again deals with the daughters’ shares, as follows:

“Prom and immediately upon the decease of such daughter or daughters, I do give * * * the principal sum of such share of my residuary estate * * * unto * * * the child or children of such deceased daughter or daughters, their * * * heirs * * * and assigns forever.”

Further defining the share of the child to be such as the deceased parent was entitled to, and providing that “ in case any of my said daughters should die unmarried, and without leaving lawful issue her or them surviving” he gives the share of' the deceased daughter to her surviving brothers and sisters, in fee, in equal portions.

I have indicated my view that the absolute gift on the death of the wife of the residue of the children then surviving passed title to the daughters in both the real and personal portions of the residue, but that the direction for investment by the trustees applied only to the personal portion. The gift of the “ principal sum of such share ” of the daughters applied only to the personal part of the daughters’ portions, and it is only with this personal part that the testator deals in his subsequent disposition of the daughters’ shares.

The above-quoted absolute gift of the principal sum or personal portion of the daughters’ shares to their children, is a bequest apparently repugnant to ’ the first absolute gift to the daughters themselves. This first gift to the daughters and the subsequent limitation over to the surviving brothers and sisters in case any daughter should die unmarried and without issue her surviving, would indicate that the testator intended the daughters to have a vested estate in the principal sum referred to, but subject to be defeated as to each daughter in case she should not during her life marry (Maberly v. Strode, 3 Ves. Jr. 454), and should not leave any issue surviving at the time of her death. These latter words, used in the will, would mean a definite failure of issue, even without the operation of the statute of 1851. Gen. Stat. p. 3761 § 25. Such limitations over of personal property upon a definite failure of issue have been recognized and enforced. Porter v. Bradley, 3 T. R. 146; Ackerman v. Vreeland, 1 McCart. 25; Hull v. Eddy, 2 Gr. 170; Holcomb v. Lake, 1 Dutch. 613; Rowe v. White, 1 C. E. Gr. 411. If the daughters took a fee, subject to be defeated upon the conditions subsequent above stated, their performance of those conditions would give them an absolute estate. If the daughters should not perform the conditions, the will gives an absolute estate over to the surviving brothers and sisters. In either case nothing would remain to be given over to the children of the daughters. The gift to the children of the daughters is not expressed to depend upon any condition or contingency, but is an absolute gift over upon the daughters’ death, of the principal sum of the share which has been just as absolutely given to the daughters themselves upon performance of the conditions.

Upon this construction it is impossible that both these gifts should stand. Either this second absolute gift to the children must be wholly rejected because inconsistent with the previous absolute gift, or it must be so construed as to modify the previous absolute gift and turn it into a life estate in the daughters.

In Jones’ Executors v. Stites, 4 C. E. Gr. 326, in construing a will having two successive absolute bequests of the same portion, Chancellor Zabriskie declared it to be well- settled that a devise of lands or bequest of-chattels by words which would clearly give an absolute estate will be construed into a devise or bequest for life only, if the will contains words giving it to another upon the death of the first taker. If the gift is absolute in terms, and not at all events limited over at the death of the first taker, but only on a certain contingency, as dying without issue living, then the title vests in the legatee absolutely, subject to be defeated on the happening of the contingency.” In order to give effect to the whole will, the chancellor held the first gift to be of a life estate only.

In Akers’ Executors v. Akers, 8 C. E. Gr. 26, the words of the first bequest to the testator’s daughters were sufficient to vest an absolute estate in the corpus of the fund. There was also a provision directing the payment of interest on the fund to them, and the second gift to their children of the same fund was also an absolute bequest. The same learned chancellor held that the testator intended the principal of each daughter’s share be invested during her life, and the interest only to -be paid to her half yearly, and that at her death the principal share should go according to the second gift.,. . ,

In the case under consideration, though the testator gave the daughters who survived their mother an absolute estate, yet he in express terms provides that the trustees shall invest and care for the fund and pay over the net interest: to the daughters for their sole use during their lives. Considering this direction with the subsequent gift of the daughters’ shares, upon their death, to their children, I think the construction given by Chancellor Zabriskie in Jones’ Executors v. Stites should, control the present case, and that the bequest to the daughters should he held to be a life estate, the custody and investment of the fund to remain in the hands of the trustee, who should pay to each daughter the interest on her share during her life, and on her death the principal to her children if she leaves any; but if any daughter should die not having married or leaving no issue her surviving at the time of her death, then to pay the principal to the surviving brothers and sisters of such daughter.

There is an inquiry in the bill touching the authority of the executors and trustees to exercise the power of sale. There is no other power of sale given in the will than that which is prescribed to be exercised by the executors and trustees with the consent of the wife, signified by her joining in the deed. The assent of the wife and her joining in the deed were conditions necessary to the exercise of the power. Her death before it was exercised has made an end of the power, and no authority remains in the executors and trustees to make sale of the real estate. Sugd. Pow. 319.

The will of the testator should be decreed to have the meaning above indicated. The trustees should be instructed that they have no power, and have had none, since the death of the widow, to make sale of the land to convey a fee-simple or any other estate therein; that the title of the trustees in the residuary real estate terminated at the death of the widow, and then passed in fee-simple to the sons and daughters then surviving, as above stated; that the trustees have no duty to convey the shares of the daughters in the land, the will being self-executing and having vested a fee-simple in them by the operation of the devise therein expressed; that the title of the sons who survived their mother in the personal portion of the residuary shares vested in them absolutely at the death of their mother; that it is the duty of the trustees to invest the personal portion of the daughters’ shares as directed by the will and to pay each daughter, during her life, the net interest of her share in the manner prescribed by the will, and the principal of any daughter’s share, upon her death leaving children, to such children, and if she die without having married, or leaving no issue her surviving, then to pay over the principal of her share in equal portions among those of her brothers and sisters who survive her.

I will advise a decree in accordance with the above views.


text:
    Oberon Land Company v. Mary Dunn et al.
    [Filed April 27th, 1898.]
    1. To enable the complainant to file a bill under the act authorizing suits to quiet title, &c. (Gen. Stat. p. 3486), the complainant must be in peaceable possession of the land in question.
    2. All acts which would naturally convey to an onlooker the sense that the party doing them was an owner are evidential of such a possession as the statute requires.
    3. Such acts vary according to the character of the land in question. Acts of improvement and development, requiring large expenditure on the land and taking nothing off, and indicating future use of the land itself for sale, such as laying out in streets, grading the tract, constructing, curbing and paving for streets, protecting the whole tract from erosion by the ocean, mapping and recording maps, dedicating streets and making conveyances with relation thereto, are such as would be done by an owner and are acts of possession.
    4. The supplement to the act authorizing suits to quiet title, &c., passed in 1891 (Gen. Stat. p. 3488), enables a party who has mapped lands into lots and filed his map and dedicated streets and sold lots, to file a bill to quiet title not only to the lots retained, but also to the lots sold, and makes the possession of the grantee of the lots sold the possession of the complainant for the purposes of that suit.
    On bill to quiet title, answer and proofs.
    This bill is filed under the statute authorizing suits to quiet title. Gen. Stat. p. 3486. The complainant sets up a chain of , title, starting from a partition sale of the lands in question (they being parcel No. 31) in 1854 by commissioners, under the order of the orphans court of Atlantic county, and claims to own the entirety of the property, which consists of a tract of beach lands, adjoining the seaside town of Longport, containing about seventy-seven acres. The complainant acquired the property in 1881 by deed from one Charles Barton, and alleges that after getting that deed, it mapped the tract into town lots, constructed streets, since used as public highways, erected a wharf for the use of the public, sold lots to purchasers, "who have constructed buildings thereon, and that great improvements have been made upon the premises. The complainant further avers that it has been in actual and peaceable possession of the whole plot (excepting the lots sold) ever since its purchase from Barton, in 1881, and that the defendants have lately claimed to be the owners of the undivided interests in the premises, and by their assertions of title are injuring the complainant’s enjoyment of its property and hindering the sale of lots. The complainant asks that its title may be established by a decree and the claims of the defendants declared to be void.
    The defendants file answers to the bill and admit the partition sale, but state that, at the time of that sale, the heirs of one Adam Somers, under whom they claim, were tenants in common of the premises described in the bill, with other parties, and allege that the Somers heirs were not made parties in that suit. They deny the title of the complainant, save as tenant in common with them, deny that it made the improvements named, and that the complainant or those under whom it claims, have occupied the premises described in the bill. They admit that no suit is pending to test the validity of their claims. They claim that they “ severally own and control and claim interest in ” a tract of land which they describe in their answer, and which is stated in defendants’ brief to contain thirty-seven acres. They set out the claim of title thereto and the quantity of each individual defendant’s interest, the total of their claims amounting to less than an undivided one forty-seventh part of the triangular plot described in the answer.
    Before the hearing the defendants applied for an issue at law to try the validity of the claims of the parties, but still insisting that the complainant had no such possession of the premises as entitled it, under the statute, to file its bill in this cause. The hearing proceeded to ascertain whether the complainant had, in fact, such a possession of the tract in question that it could invoke the aid of this court under the statute to quiet titles.

      Mr. David J. Pancoast, for the complainant.

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

The statute under which the complainant is proceeding in this court directs, that upon the application of either party, an issue at law shall be directed to try the validity of the claims set up by the litigants. Gen. Stat. p. 3487. Such an application has been' made in behalf of the defendants, who insist that they also' have a right to try in this court, as a preliminary issue, the question whether the complainant has such a peaceable possession of the premises in question as gives it standing to file its bill under the statute. The established practice of the court is to try this issue in this court before awarding an issue at law, because if it be found that the complainant has no such possession as is necessary to meet the statutory requirements, then it has no right to cast upon the defendants the burden of making primary proof of their title in a court of law. Powell v. Mayo, 9 C. E. Gr. 178; Beale v. Blake, 18 Stew. Eq. 668.

The possession required by the statute is a peaceable possession. It is not disputed that the a'cts done by the grantors of the complainant and by it, in the náture of assertions of possession, were peaceable. No claim is made of any violence, nor of any resistance, nor of any disputation of the action of the complainant company.

This peaceable possession must exist at the time of the filing of the bill, but the evidence of such a possession may be the action of the complainant, and of those under whom it claims, at any reasonable time preceding the beginning of the action of this court. Any acts regarding the premises which would naturally convey to an onlooker the sense that the party doing or directing them was the owner, are evidential of such a possession as the statute contemplates. These acts must necessarily vary greatly according to the character of the property in question. A house would not be dealt with as would a tract of woodland, nor a sand-beach property as would a farm.

The tract in question, as claimed by the complainant, is a piece of beach land containing seventy-seven acres, and was No. 31 in a partition sale of lands of Daniel Collins and others, made in 1854. It lies immediately next the village or town of Long-port, on the southwestern end of Absecon beach, and runs in a general easterly and westerly direction across that beach, from the Atlantic ocean to Beach thoroughfare, the north and south boundary lines being nearly parallel, and those on the east and west following the irregular high-water mark of the ocean and the thoroughfare respectively. It was used by the complainant for division into town lots with proper streets, as the location of a town or village.

The claim of the defendants, so far as it is defined by their testimony, applies to a triangular piece lying nearly in the middle of the tract claimed to be in possession of the complainant, its base being on the southwesterly end and its apex near the northeasterly end of that tract. In this triangle the defendants claim to hold fifty-eight undivided twenty-seven hundredths parts.

The complainant’s grantor and also the complainant, treated the whole seventy-seven acres as one tract, and did the acts which are claimed to show possession indiscriminately over the whole property, making no distinction between the triangle claimed by defendants and the rest of the property. In all their acts they dealt with the tract as sole owners of the entirety, and no proof indicates any recognition of the claimed undivided interest of the defendants in the triangle. On the ground there was nothing in the nature of a monument or any natural or artificial boundary defining the extent or location of the inner triangular plot claimed by defendants. Nor was any evidence offered that the defendants had ever entered on the premises they claim, or had in any way taken possession or done any act on the triangular plot having the color of possessory right. Their whole assertion of interest seems to exist solely in the statements of surveys, resurveys and deeds. No one going upon the land would find there anything to indicate the existence of the triangular plot as a separate ownership.

The complainant’s proofs of acts of possession are substantially undisputed, and the only question to be determined is the sufficiency of those acts to meet the requirements of the statute, and amount to a peaceable possession. These acts began under the previous ownership of the complainant’s grantor, one Charles Barton. Mr. Barton always dealt with the whole property described in the bill conveyed by him to the complainant, as an entire tract. He caused it to be surveyed and streets to be mapped and named on a plan, and staked out on the ground. These stakes were three or four feet high above the ground, and were four or five inches wide at the tops, which were painted white for a foot down from the top. They were driven into the land so that they marked out the whole of the tract designated as No. 31, and necessarily included the triangle claimed by the defendants. They were visible to anyone going on the tract. Mr. Barton also published a booklet showing his map of the property and inviting purchases of lots. These were generally and widely circulated. He also built a wharf at the northern corner of the tract on the thoroughfare, and made a path or road! across that part of the tract to this wharf and for a time repaired the wharf. Mr. Barton also “brushed” the ocean front of the tract, that is, set brush along the edge of the ocean to prevent washing away of the land and to catch and accumulate the sand. This brush was four feet high and three or four wide, and extended along the ocean front. Mr. Barton sank a well for the use of the property. He built on' the property two cars to carry sand, and a tramway for them to run on. This tramway was portable, and was used to shift sand from the higher to the lower places on the tract. It was nine hundred feet long, and was built from the railway track toward the thoroughfare. Two-shovel plows were used to plow down .the sand from the hills. From 1882 until he sold to the complainant, Mr. Barton had a man in general charge of the tract, who did part of the work above detailed, and nobody ever interfered with his management of the property.

On the purchase of the property by the complainant, in 1889,. it made another map of the whole tract, and laid it out in lots and streets and filed its map in' the clerk’s office of Atlantic county, issued booklets and circulated them. It opened one of these streets — Twenty-fourth street — on the ground, all the way across the tract from the thoroughfare to the ocean, graded.it from the railroad to the beach, and curbed it on both sides, and though not kept in constant repair, it has been cleaned off, and had the holes smoothed out, and is still in use as a street, and is an obvious improvement of the property. It crosses the base of the triangle in which the defendants claim title. At the thoroughfare end of Twenty-fourth street, the complainant erected a wharf and a breakwater, which are used for landing and-fishing purposes. The complainant has sold two lots to purchasers since it undertook the improvement of this tract. One of the lots it sold, in 1892, to a Mr. Sharpless, who erected a cottage upon it, which has been occupied every season since then. This house is located within the triangle claimed by the defendants. The complainant also continued the “ brushing ” process of protecting the whole ocean front of the tract. Sandhills occasioned by this “brushing” were from four to five feet high, and the “brushing” and these sandhills formed about it, could be seen from many places on the tract, and easily from the railroad track which runs nearly through the middle of the whole tract, and directly across the defendants’ triangle. Mr. Barton, while he was the owner, and the complainant ever since, paid taxes as owners of the whole tract. These acts of ownership the complainant shows were done with relation to the tract as an entirety as above stated, and not as to any specific part of it, for the complainant had and claimed no other title to any part than it had to the whole.

The various acts narrated were such as were required for the development and improvement of the lands for sale in town lots or for the protection of the tract from the wash of the ocean. They were of such a visible and notorious character that everyone visiting the tract must observe them. They were operations which manifestly indicated a possession and caretaking by the doer of them, which none but an owner would exercise. The triangle in which the defendants claim an undivided interest was included within the general treatment given to the tract as a whole, there being no line or boundary defining its limits. The curbed and graded street — Twenty-fourth street — made by .the complainant lies directly on the triangle. All the acts of possession which were. done by the complainant or its grantor, Barton, are substantiálly uncontradicted in the proofs.

The things done were not in the nature of trespasses by which the party doing them took something off or gained a profit from the land, but they involved the doing of labor upon the land and actual expenditure of money for the improvement and development and protection of the land itself, and gave notice to the observer that the party doing these acts looked to the land and its future for his recompense. In short, they spoke of possession and improvement by an owner.

In my view, the proofs submitted of peaceable possession of the premises by the complainant antecedent to and at the time -of the filing of the bill in this cause show a possession as full .and completé as the character of the property in question required of the possessor.

But if the uncontradicted acts of possession done by the complainant’s grantor and by the complainant themselves, for years prior and up to the filing of the bill in this case, leave the question of possession doubtful, the operation of the statute of April 4th, 1891, a supplement to the “Act .to compel the determination of claims to real estate,” &c., must certainly aid the proofs submitted, by making the acts done by their grantees evidential of the complainant’s possession. That supplement provides that when a person or corporation shall be in peaceable possession of land, and shall cause a map to be made and filed, dividing the land into lots, laying out and dedicating streets on it, and shall have sold and conveyed any lots, then, to avoid a multiplicity of suits, the grantor may maintain a suit in chancery under the original act, notwithstanding these conveyances, and for the purposes of that suit, “the title and possession of the grantee of the lots shall be deemed and taken to be the title and possession of the complainant.” The complainant’s case precisely fits the ¡recited circumstances, for it makes the erection and occupancy of the Sharpless house evidential of possession in the complainant.

The defendants deny that this statute has any other efficacy than to enable the complainant to file a bill to quiet the title to the lots which he may have already sold. Such a construction far from avoiding a multiplicity of suits, would necessitate one bill to quiet the title to the lots sold, and another to those lots-which were unsold, both involving precisely the same title. The object of the supplement- is plainly to enable the owner, who has divided his land into many lots, and has irretrievably committed his property by dedication of streets and conveyance, to use as a town or village, to settle, once and for all, the title not only to what he has sold, but also to what he intends to sell by a single suit under the act.

The mischief which the statute sought to remedy was the inability of the grantor who had conveyed a lot, to include in the bill to quiet title to his own lands, the lot which he had theretofore conveyed away, perhaps with warranty of title. The statute remedied this difficulty, gave the grantor this power, saved a dismissal of the bill because of the inclusion of the lots sold, and burdened the claiming defendant with the declaration that in such a suit the title and possession of the grantees of the lots should be deemed and taken to be the title and possession of the complainants in such suit. The effect of this statutory declaration, if the owner files his bill to quiet title to-the whole tract mapped, is to impose upon the defendant the burden of recognizing the title and possession of the grantees of lots as the possession and title of the grantor complainant.

The defendants have by their own testimony proved that the Sharpless cottage was located upon the triangle. It appears this-is a summer cottage erected on a lot conveyed by the complainant, and occupied every summer since 1892, when it was built. Under the terms of the supplement above referred to, the title and possession of its grantee, must be taken to be the title and possession of the complainant. So that it affirmatively appears that this Sharpless cottage was located on a portion of land claimed by defendants at the time the bill was filed, and this-possession must be. ascribed to the complainant, and is by the statute related to its title.

The defendant admits in his brief that if the complainant shows actual peaceable possession of any part of the land described in the defendants’ answer, it is entitled to maintain its suit as to the whole of the land described in defendants’ answer,” but they deny that -a showing of possession of adjoining lands will justify a bill to include the lands in defendants’ answer.

The acts of possession shown by complainant were not limited to the lands adjoining those claimed by defendants. The general improvements of staking out streets, grading the tract, keeping out the ocean by brushing,” and other acts of development and caretaking indiscriminately covered the whole tract, including defendants’ triangle. Twenty-fourth street is built, curbed and graded on the triangle, and so the Sharpless cottage is on it.

The defendants insist that the complainant has a full remedy by a suit against them in ejectment. The act authorizing bills to be filed to quiet titles has been declared by the court of errors to be designed for the relief of parties in peaceable possession who had no means of contesting the adverse claim by a suit at law. Sheppard v. Nixon, 16 Stew. Eq. 632, and cases cited.

The defendants refer to the twenty-fourth section of the Ejectment act (Gen. Stat. p. 1285), which provides for suit in ejectment between joint tenants and tenants in common as enabling the complainant to sue in ejectment. But the complainant does not claim to be a tenant in common with the defendants, and nothing in the case touching the possession, which is the only matter now in issue, indicates that any such relationship exists between the parties. That is the defendants’ claim which the complainant denies.

The defendants also refer to Gen. Stat. p. 1284 § 22 as providing for making defendant a person not in actual possession. That section does provide that such a person may disclaim and subject the plaintiff to costs, but does not provide that he shall defend or have judgment go against him.

They also contend that section 40 provides for an ejectment where there is a claim for part only of the premises. In this case, however, the complainant does not claim a part only but the whole of the premises. The defendants again mistakenly assume that the complainant is bound to accept the position in which they desire to place it.

So they say that section 3 of the Ejectment act provides for making defendant one claiming a right of possession, or title in the lands. In fact, that section declares that the defendant “shall be the person in possession, if the premises are occupied, or some person exercising ownership of the premises or claiming title thereto in ease they are unoeeupied.” The complainant here insists that it is itself in the occupation of the whole premises.

These sections, notably sections 3 and 24, while they do not enable the complainant to sue the defendants in ejectment, have always empowered the defendants to bring an ejectment against the complainant to test the validity of their claims. They have not seen fit to begin such a suit. The complainant, to bring an ejectment against the defendants under those sections, must abandon, at the start, its position as sole owner of the entirety in the actual possession of the whole tract, and must concede that the defendants claim title to unoccupied premises or that they are tenants in common with the complainant. I do not consider that the complainant is under any obligation to surrender its claim to sole ownership of the whole tract. The defendants 'have done nothing to assert their title or possession, save to set up by a paper title an undivided interest in a part of the lands of which the complainant is in possession by nearly all the acts of open ownership of which the lands in question are capable. Such a course cannot result in settling their claim, thougli it does subject the complainant to much embarrassment and conse-. quent loss of sales.

In my judgment the complainant has a right to maintain its bill to compel the determination and settlement of the defendants’ claim. I will advise a decree in accordance with the views above expressed.


text:
    Charles I. Wooster v. William T. Cooper et al.
    A testator, by Ms will, gave a life estate in his property and created two successive powers of sale, either of which might pass a fee when exercised. The legal title to the fee descended to the heirs-at-law, subject to the operation of the powers of sale. To a bill filed seeking a decree directing the executors to execute the second power by a conveyance to each beneficiary of a proportionate undivided interest in the land — Held, that the heirs-at-law of the testator are necessary parties.
    On bill, cross-bill, answers and issue, &c.

      Mr. James Buchanan, for the complainants in cross-bill.

      Mr. John J. Crandall and Mr. John W. Wescott, for the defendants in cross-bill.

      Mr. William Moore, for the other defendants.
   Grey, V. C.

At the opening of the final hearing of this cause, it was disclosed that the court of errors and appeals had construed the will of Benjamin B. Cooper, under which the complainants in the cross-bill claim relief. Wooster v. Cooper, 8 Dick. Ch. Rep. 682. The court of appeals declared that, under the will, Tacy Cooper took a life interest only in the testator’s estate. The court gave no opinion as to the effect of the will in disposing of the legal title to the fee of his lands. An examination of the will shows that the testator gave to Tacy a power to dispose of the lands in question, and that he also created a further power of sale, to be exercised, under certain circumstances, by his executors. The only effect of the will, operating as a disposition of the legal title, was to pass to Tacy an estate in the farm during her life. Of the legal title to the fee in the farm, the testator died intestate. .The will gave a life estate, and created two successive powers of sale, either of which might pass a fee when exercised, but neither of which did pass a fee until exercised. The result was that, on the death of the testator, Tacy took a life interest under the will, and the legal title to the fee descended to the heirs-at-law, subject to the operation of the powers of sale, either of which, when exercised, would devest the legal title of the heirs and pass it to the purchaser under the power.

In the phase of the case now being heard before me, the complainants in the cross-bill assert that Tacy’s life estate having ended by her death, the power of disposition of the farm given to her by the will was never efficiently exercised; that they are the beneficiaries entitled to the proceeds to arise from the exercise of the succeeding power of sale given to the executors, and they ask that the latter be ordered to execute the power by a conveyance to each beneficiary of a proportionate undivided interest in the land.

It is quite evident that such an exercise of the power of sale by the executors must devest the heirs-at-law of the legal title to the farm, which is now held by them.

An examination of the bills and of the files of the case shows that the heirs-at-law have not been made parties to this suit. I deem them to be necessary parties in a case of this character, and that no decree can properly be made directing the exercise by the donee of the power created by the will, the effect of which will be to take away the title which was vested by descent in the heirs-at-law, unless these heirs-at-law have been made parties to the bill of complaint, with proper words of allegation and charge.

The complainants in the cross-bill may make such amendment to their bill as may bo necessary to make the heirs-at-law parties defendant, and bring the parties into court on the amended bill and proceed according to the practice of the court.


author: The Ordinary.

text:
    Thomas H. Stewart v. Cornelia G. Stewart and Charles F. Stewart.
    [Filed May 25th, 1898.]
    1. Evidence that a testator took his will, a holograph, to two old friends, who were familiar with his signature, and, exhibiting it to them, said, “ This is my will; do you recognize the signature as mine?” and that, on their answering him in the affirmative, he asked them to sign the will as witnesses, is sufficient to show that the testator acknowledged his signature to such witnesses.
    2. While, in the absence of any attestation clause to a will, the burden is on the proponent to affirmatively prove compliance with all the statutory requirements, yet evidence that an attestation was made in the same room where the testator was is prima fade proof that the attestation was in his presence.

      3. The fact that a witness who testified positively as to certain matters, when first interviewed before the trial concerning them, was uncertain and without distinct present recollection, does not destroy his credibility.
    On appeal from a decree of the orphans court of Passaic county, which admits to probate a paper purporting to be the last will and testament of Thomas C. Stewart, deceased.

      Mr. Thomas F. Noonan, Jr., for the appellant.

      Messrs. Miller & Meyers, for the respondent.
   The Ordinary.

Thomas C. Stewart died in May, 1897, at the age of eighty-one years, leaving him surviving his wife, Cornelia, and two sons by a former wife, Thomas and Charles. He resided for many years, until his death, in the city of Passaic, in this state.

The paper in question bears date the 25th of June, 1894, and was admitted to probate by the surrogate of Passaic county shortly after Mr. Stewart’s death. The son Thomas appealed from the surrogate’s probate to the orphans court, and, on the 29th of October, 1897, that court made the decree now under review, which admits the paper to probate.

The widow and younger son, Charles, are appointed respectively the executrix and executor of the will and are directed to hold portions of the estate in trust for the elder son, Thomas, with power in them to terminate the trust in their discretion, upon being satisfied of particulars indicated in the instrument.

The admission of the disputed paper to probate as the will of Mr. Stewart is resisted by the son Thomas upon the insistence that it is the product of undue influence and was not executed with all the formalities required by law.

The proofs do not justify the first of these positions. They at best show strained relations between the elder son and his brother and stepmother, and the existence of a strong fatherly affection for Thomas upon the part of the testator. The strength of the appellant’s case, upon the point considered, rests in these facts, coupled with the tying up by the will of his portion of the estate in trust in the hands of his stepmother and brother. The proofs do not show the least intermeddling by anyone in the production or execution of the will, or even that any other person than Mr. Stewart and the subscribing witnesses to the will knew of the existence of that instrument. They do, however, indicate, through the character of the physical afflictions with which Thomas suffered and his frequent application to his father for assistance, that perhaps the trusts created were provident.

The burden was upon the contestant to show undue influence, or, at least, such indicia of undue influence as to shift to the proponents the burden of showing that undue influence did not exist. He did not bear his burden.

The testator was a lawyer, though not in active practice; was in full possession of his faculties, careful and self-reliant. I cannot find any justification for believing that he was constrained to make the instrument considered contrary to his own judgment and wishes and in obedience to the purpose of others.

Thus, dismissing the first ground, I come to the questions raised with regard to the execution of the instrument. Upon this subject the insistence is, first, that the testator did not sign the will or acknowledge his signature to it in the'presence of the subscribing witnesses, and second, that the witnesses did not subscribe their names to the will in the presence of the testator.

The will is a holograph, without an attestation clause. The subscribing witnesses were a gentleman, named Church, and his wife. They lived in the city of Passaic, across the street from Mr. Stewart, and had purchased their home from him. They had known Mr. Stewart for years.

On a Sunday afternoon in June, 1894, Mr. Stewart crossed the street to their house, and was admitted by Mr. Church. He told Mr. Church that he had a little business to transact with him and his wife, and asked if it would be convenient for them to then attend to it. Mr. Church invited him into a small library-room, and called Mrs. Church from an upper story of the house. When Mrs. Church came down stairs and the three were alone together, Mr. Stewart said that while he had no intention to die, he thought it proper to. prepare for that event, and had drawn his will which he desired them to witness, and then took from his pocket the paper now in dispute, and asked.Mr. Church if he could recognize his (Stewart’s) signature, and, exhibiting his signature to the instrument, said : This is my will. Do you recognize the signature as mine?” And when Mr. Church replied in the affirmative, asked him if he would sign the will as a witness. He then repeated the same formality with Mrs. Church. Upon cross-examination, Mr. Church, in one place, testifies that Mr. Stewart said that he (Stewart) had signed the will, but in all other parts of their testimony treating of this point, both he and Mrs. Church say that Mr. Stewart asked for their recognition of his signature in that which he exhibited to them, and then requested them to witness the will. A question much mooted is whether such language and conduct is a sufficient acknowledgment of the testator’s signature within the requirement of the statute. My conclusion is that it is. There was a decláration by the testator that the paper was his will. That paper, in point of fact, was signed by him, and that signature was the name he pointed out to the witnesses and asked if they could recognize it. He and the witnesses had been acquaintances for years. The witnesses were familiar with his signature. When he pointed it out and asked them if they recognized it as his, upon their identification of it, he, in conduct, assented to the correctness of that identification by proceeding to another step in the execution of the will; asking them to sign it. Such assent upon his part to the conclusion of the witnesses was, I think, an acknowledgment of the signature. It was not necessary that the acknowledgment should be in words. It was sufficient if accomplished by unequivocal conduct upon his part. Ludlow v. Ludlow, 9 Stew. Eq. 597, 601.

When the witnesses subscribed the will they went to a secretary against the wall on one side of the room, taking the will with them, and there, in presence of each other, subscribed their names to it. Mr. Stewart, at that time, sat or stood in the same room, a very few feet away from them. Both witnesses believe that Mr. Stewart faced them and looked at them as they signed. Mr. Church says that he saw Mr. Stewart look at Mrs. Church when she signed.

Here it is insisted that the proof is uncertain upon this point, and that in the absence of reference to it in an attestation clause, the uncertainty is fatal to the instrument.

It is undoubtedly the rule that in the absence of an attestation clause the burden is upon the proponent of a will to establish by affirmative proof obedience to the statutory requirements. Allaire v. Allaire, 8 Vr. 312, 325. But, at the same time, it is the rule that an attestation made in the same room where the testator is, is, prima fade, an attestation in his presence. Manderville v. Parker, 4 Stew. Eq. 242; Ayres v. Ayres, 16 Stew. Eq. 565. The testimony in this case is clear that Mr. Stewart was in a small room with the witnesses when they subscribed the will; so near that with the least attention he could have seen them sign, and that, as already stated, he was a lawyer by profession, hence presumably versed in the importance of seeing them sign, and, as well, was in full enjoyment of his faculties. This prima faeie proof has not been overcome.

Shortly after the death of Mr. Stewart, which; it is remembered, happened three years after the execution of the will, the appellant’s lawyer, with a friend, called upon Mr. Church at the bank in New York City, with which Mr. Church is connected, and there sought to draw from him his recollection of the particulars of the execution of the will. It appears that he was in some uncertainty as to those particulars. That which he now testifies to with certainty was then apparently an uncertain impression. This fact is urged against his credibility, but I do not attach much importance to it. Mr. Church appears to be a man of most excellent character. When he was called upon at the bank he was unexpectedly plunged into the minutice of a transaction that had happened more than three years before. Nothing was then presented to refresh his recollection. It could scarcely be expected that before he had an opportunity to think with deliberation upon the matter he could declare any fact with positiveness. Indeed, I cannot but think that the general correctness of his recollection, evidenced in the uncertain expressions he then uttered, exhibits a memory well worthy of confidence, when refreshed by consideration and conference with Mrs. Church.'

I will affirm the decree of the orphans court.


text:
    Mary A. Farnum, David Du Bois, Sarah Jane Garrett and Helen M. Johnson v. Robert M. Boyd, Jr., and Lewis J. Mulford.
    [Filed September 29th, 1898.]
    A lawyer, employed by a testatrix with unsettled testamentary notions as to the disposition of her entire estate, to draw her will, .can participate in her bounty, in a material degree, only after a very clear exhibition that his conduct was fair and unobjectionable, and that the testatrix exercised, with relation to her bounty to him, a judgment independent of the confidence induced by his confidential relationship to her.
    On appeal from a decree of the orphans court of Essex county, that admits to probate, as the last will of Anna D. Bennett, two writings, purporting to be a will and codicil thereto.

      Mr. Charles D. Thompson, for the appellants.

      Mr. S. J. Murphy, of New York, for the respondents.

      Mr. Edwin B. Goodell and Mr. Joseph D. Gallagher, for the legatees.
   The Ordinary.

No question is raised as to the fidelity with which the requirements of the statute as to the making and execution of the disputed papers here involved were observed, nor do I understand the appellants to seriously contend that Amia D. Bennett was, under all conditions and at all times, without testamentary capacity during the period within which the will and codicil were made. The contest rests rather upon their insistence that the will, in which is included both the will proper and the codicil, is the product of an undue influence that grew out of confidential relations then existing between Mrs. Bennett and the draughtsman of those instruments, Robert M. Boyd, Jr., .and Lewis J. Mulford, the other respondent upon this appeal. The testimony offered to exhibit the mental condition of Mrs. Bennett does not touch the very time of the execution of either paper. It, in a general way, covers the period .of time within which both instruments were executed, and appears to have been offered more with a view to show a weak mind, capable of being readily perverted and controlled, than with the expectation that it would satisfy a court that Mrs. Bennett lacked testamentary capacity. The latter position is so clearly untenable, under the proofs, that it may be dismissed at this point in our consideration without further remark.

That the woman was weak is quite apparent. She was somewhat eccentric, but that was scarcely distinguishable from the vanity, characterized by love of conspicuity, which she exhibited. She was tyrannical and cruel to dependents and those who would not resent her cruelty, and was also selfish, and in her selfishness, keenly appreciative of kindness. She was inexperienced in business ways and in the management of money, and hence in a degree ignorant. Her greatest weakness was the. product of vanity, selfishness and ignorance, and not of mental disease. She well knew what property she had, the natural objects of her bounty, those who had been kind to her and the purpose and effect of will-making.

The house in which she and her husband had resided in East Orange was worth two or three thousand dollars. It had been purchased in her name by her husband. She does not appear to have had any other estate until the death of Mr. Bennett, in August, 1895, when she came in possession of about $11,000 from her husband’s life insurance in her favor and about $2,000 additional from his estate. When Mr. Bennett died she was practically without relatives or friends capable of advising her or in whom she had confidence.

Her history is this: At the age of sixteen years she married a man named Handy, from whom she was subsequently divorced. By Handy she had one child, a son, who died in infancy. Later she married one Farnum, from whom also she was divorced. Then, some time prior to 1873, she man'ied James Bennett, with whom she lived until he died in 1895, as has been stated. Her maiden name was Du Bois. She has one brother, David, and one sister, Jane, who afterwards married a man named Garrett, of the whole blood; and two sisters, Mary and Helen Hemingway, the children of her mother by her stepfather, of the half-blood. The former of these sisters of the half-blood married one Farnum, the brother of Mrs. Bennett’s second husband, and the latter married one Johnson, from whom she has been divorced.

These sisters and brother are the caveators below and appellants here;

Mrs. Bennett died on the 30th of December 1896, sixteen months after the death of her husband, at the age of sixty-eight years. She and Bennett did not have any children. About the year 1873 they took to live with them the six-years-old daughter of Mrs. Bennett’s half-sister, Helen Johnson, with a purpose to ultimately adopt her as their child. The girl was taught to address them as her parents, and they called her their daughter and treated her as such, but it does not appear that they ever formally adopted her. After she had lived with them eight or ten years she was sent to a convent in Canada to be educated, and later, against their consent, at the age of eighteen years, married a man named Cotherman, of Chicago, and went there to live. After several years, in order that they might have Mrs. Cotherman near them, Mr. Bennett found employment for Cotherman in the east, and Cotherman, his wife and children moved to Newark, in this state, where they now reside. It is clear that Mrs. Bennett always disliked Mr. Cotherman. She did not hesitate to try and induce his wife to leave him and return to Mrs. Bennett’s home and become her companion, by the promise that if she would do so she should be the sole beneficiary under Mrs. Bennett’s will.

The relations between Mrs. Bennett and Mrs. Cotherman, after the latter took up her residence in Newark, varied. At times they exhibited friendship for each other, and at other times they quarreled and became estranged. In January, 1896, a child of Mrs. Cotherman died of membraneous croup. Mrs. Cotherman telephoned to Mrs. Bennett to come to her assistance. At first Mrs. Bennett assented, but later telephoned that her physician advised that the disease was dangerous and forbade her to come, and consequently she would not do so. After that the two women did not meet until May, 1896, when Mrs. Bennett called upon Mrs. Cotherman, and, although she repeatedly cried under Mrs. Cotherman’s reproaches, she was told she could thereafter go to the wife of her coachman, one Maffy, presently mentioned, for favors. After that Mrs. Cotherman failed» to visit Mrs. Bennett until the latter became unconscious in her last illness.

Early in life Mrs. Bennett and her brother and sister of the whole blood drifted apart. The brother became a seafaring man, and, the evidence seems to indicate, dissipated in his habits. He is now rheumatic and a pensioner upon the city of East Saginaw, Michigan. The sister married first one and then another physician, and is now supported in a masonic home at Grand Rapids, Michigan. After the death of Mr. Bennett, Mrs. Bennett told the appellant Mary A. Farnum that she was going to make a will, and asked if Mrs. Farnum knew anything of “Dave and Jennie.” It does not appear that she was aware of their destitution. The proofs show, as the will suggests, that the half-sister, Mrs. Johnson, has abundant means.

It appears, further, that William Maffy, who with his wife- and child are legatees for $100 each, used to drive Mrs. Bennett every day. He was an employe of one Chester Howe, a livery-stable keeper with whom Mrs. Bennett boarded her horse, upon an arrangement that she should be driven an hour and a half each day. Occasionally, when Maffy did not drive her, Mr-Howe would do so himself. Both men were constant in their kindness to her..

After her husband’s death Mrs. Bennett became a member of St. Paul’s Episcopal Church, of East Orange, and the recipient of many attentions and kindnesses from its rector, Mr. Williams, and Miss McKinney, to whom the rector was engaged to be married, and Miss McKinney’s mother. She gives to the church, the rector and Mrs. and Miss McKinney each $200.

Her husband died intestate, leaving an estate valued at about $3,000. She became the administratrix of this estate, giving bond upon which Lewis J. Mulford and O. S. Bogert were sureties. She claimed that her husband was indebted to her beyond the amount of his estate, and ultimately took the entire estate for her debt, to the exclusion of Sanford Bennett and Laura Bennett, a brother and sister of her husband, from any participation in it. Besides the accommodation by Messrs. Mulford and Bogert as bondsmen, their wives were kind and attentive to Mrs. Bennett. More than this, Mr. Mulford had been an acquaintance of Mr. Bennett for several years and knew Mrs.’ Bennett slightly, and when he heard of Bennett’s sudden death, knowing that' the widow was practically alone, he called upon her and offered his assistance, which she accepted; and afterwards he aided her in collecting three insurances upon her husband’s life, and a month after her husband’s death, introduced her to the respondent Boyd, a lawyer, through whom she settled her husband’s estate. To Sanford and Laura Bennett the will gives $500 each, as the equivalent of that which they would have taken from Mr. Bennett’s estate if Mrs. Bennett had not absorbed it with her claim; to Mr. Bogert the will gives $200 and to his wife $100, and to Mr. Mulford and his wife $250 each, in addition to other provision for them, which will be presently referred to.

Dr. Graves was her physician. Mr. Boyd was her lawyer, Dora Voss was her servant and Lizzie Budd was an old friend j to each of them the will gives $100.

It thus appears that, out of an estate now worth some fourteen or fifteen thousand dollars, she bequeathed specified sums, aggregating $2,100, to persons outside of her own and her husband’s family, who were her associates and had been attentive and kind to her, and that she gave $1,000 to her husband’s brother and sister, and $500 to her half-sister Mary Farnum, and $500 to Mrs. Cotherman and her children. The will does not refer to her brother and sister of the whole blood. That she had them in mind while the will was in contemplation appears. It is but a just inference, I think, after the lapse of so many years — perhaps half a century — without communication with them and in ignorance of their circumstances, that she determined that they had no longer claim upon her bounty. Her half-sister Helen was possessed of abundant means, and for that reason did not share in her estate. It does not appear that Mrs. Farnum-is in necessitous circumstances.

The will was executed on the 1st of June, 1896. By it the residue of her estate, after the legacies to the friends and relatives mentioned, is disposed of as follows : Three hundred dollars to the Mountainside Hospital Association of Montclair; $500 to the Free Public Library of Montclair; $500 to the Children’s Home of Montclair, and the residue, several thousand dollars, to Mr. Boyd and Mr. Mulford, who were appointed the executors of the will, and the survivor of them, in trust for charitable and benevolent purposes. The codicil was made and executed on the 16th of October in the same year. It revoked two small pecuniary legacies, and then provided that about half of the residue should go to the wife of Lewis J. Mulford, and that the other half only should go to the executors in trust as already stated. It appears that Mr. Boyd was trustee of the Free Public Library of Montclair and a resident of that town.

The respondents have not offered any direct evidence of fraud in the production of the will. They rely for the rejection of the instruments disputed upon presumption and inference from these facts which they contend have been established by the proofs: That Mrs. Bennett was eccentric, erratic and unsettled in her testamentary purpose; that Mr. Boyd occupied the confidential relation of her legal adviser and as such was engaged in the preparation of the- disputed instruments, and that the outcome of his employment was a will which gives him a legacy of $100, an executorship of some pecuniary value and an interest in the large residuary estate upon a trust which they claim is tantamount to an absolute gift to him, besides providing three legacies, which aggregate $1,300, for three institutions in the place of his residence, in one of which he was a trustee, and giving to Lewis J. Mulford, a friend of Boyd, who had introduced him to the testatrix, and who had gained the gratitude and confidence of Mrs. Bennett by his services already adverted to, an executorship, a legacy of $250 and an interest with Boyd in the residuary estate and trust as stated, and for Mulford’s wife a legacy of $250 and half the residuary estate. It is claimed that fully two-thirds of the estate is directed by the will in a course probably pleasing to Messrs. Boyd and Mulford, though when that was made the testatrix had not known either of those men a year.

I agree with counsel for the appellants that both these gentlemen were her confidential advisers, one professionally and the other in the assumption of position of adviser, in which he became intrenched by the performance of acceptable offices for her.

It clearly appears in the proofs that when Mrs. Bennett applied to Mr. Boyd for assistance in making her will, her testamentary purpose was not complete. Beyond her general intention to dispose of her estate by will and her conclusion upon a few small pecuniary bequests, which would not exhaust one-third of her estate, she was unresolved and open to adopt any plausible suggestions. I agree with the contestants that the position of Mr. Boyd gave him such mental ascendency over his client that his participation in her bounty, in any material degree, can be allowed only upon the clearest exhibition that his conduct was fair and unobjectionable, and that Mrs. Bennett exercised a judgment in dispositions in which he is concerned, capable of independence of the confidence induced by the relationship between them. The presumption from the relationship and the benefit ensuing to Mr. Boyd from the will, is against the validity of the provisions of the instruments relating to Mr. Boyd. The bequest to him of $100, in view of a like gift to the physician of the testatrix, is not of great significance; nor is his appointment as executor with Mr. Mulford unnatural when it is considered that Mrs. Bennett did not have a male connection in situation to take the office, except perhaps Mr. Cotherman, with whom she had never been upon confidential or even friendly relations. Grave question arises chiefly upon the disposition of the residuary estate. As to that the language of the will is:

“All the rest, residue and remainder of my property, both real and personal, I give, devise and bequeath to my executors below named and the survivor, their heirs and legal representatives. I trust that they will use this for charitable and benevolent purposes.”

And the language of the codicil is this:

“All the rest, residue and remainder of my property both real and personal I direct to be divided into two parts of equal value after my diamonds, jewelry, watches and other articles of personal ornament have been sold — one of such two equal parts I give, devise and bequeath to Caroline T. Mulford, wife of Lewis J. Mulford of Montclair, New Jersey, and the other equal part I give, devise and bequeath to my executors below named and the survivor, their heirs and legal representatives. I trust that they will use this for charity and benevolent purposes.”

The testimony of Mr. Boyd is that when, in course of her instructions to him for the preparation of her will, she reached the disposition of the residue of her estate she said that she wanted him, Boyd, and Mr. Mulford to have the residue, and that he demurred, so that it was arranged that the executors should take the residue, not for their own benefit, but in trust for charitable and benevolent purposes, and the will was accordingly so drawn, and after repeated readings approved by Mrs. Bennett.

It is remembered that the will was executed at the beginning of the summer. During the summer Mr. Boyd went to Canada, and he and his client were separated so that they did not meet until fall. In October the instructions for the codicil were given and then Mrs. Bennett said that Mrs. Mulford had been good to her during the summer and should have half the residue, and Mr. Boyd accordingly prepared the codicil, which was examined and approved by Mrs. Bennett. This change appears to have been readily acquiesced in by Mr. Boyd as by one without having or assuming authority to question it. Mrs. Bennett then took the will and codicil from him and gave it to Mr. Mulford to beep. If Boyd dominated the will of Mrs. Bennett and believed that he had so worded the will that he and Mr. Mulford would take the whole residue free from trust, as has been suggested, it is difficult to perceive why he would permit the sacrifice of half his holding to Mrs. Mulford, and then permit both will and codicil to be taken from his custody to Mr. Mulford’s for safekeeping.

The change effected by the codicil appears rather to be in harmony with his testimony that in drawing the will he merely carried out her purpose, except in respect of an absolute gift of the residue to himself, where he advised a trust for benevolence and charity.

It is true he named three Montclair charities, in one of which he was interested as trustee, but that suggestion was upon her request, and was not acquiesced in by Mrs. Bennett, if Mr. Mulford is to be believed, until Mulford endorsed them.

I have but little doubt that the language of the will and codicil creates a trust of the residue, at least so far as that part of the residue which is devised and bequeathed to the executors and the survivor of them, is concerned. Eberhardt v. Perolin, 3 Dick. Ch. Rep. 592, 596. Perhaps it may be held otherwise of the portion devised and bequeathed to Mrs. Mulford. It seems to me to be very doubtful whether the trust can be sustained. Thomson’s Executors v. Norris, 5 C. E. Gr. 489, 523. But if it is not sustained, the trustees will not profit individually. They will be decreed to hold the residue in trust for the heirs-at-law and next of kin of Mrs. Bennett. Smith v. Smith, 9 Dick. Ch. Rep. 1; S. C., 10 Dick. Ch. Rep. 821. I am satisfied that neither Mr. Boyd nor Mrs. Bennett thought that Boyd would take for himself, under the will, anything more than $100 and the executorship. I have very carefully examined Mr. Boyd’s testimony and am satisfied that he acted fairly in dealing with his client, and did not control her will, or in any manner improperly influence her.

There would seem to be more reason, so far as the disposition made by the will is concerned, to criticise the Mulfords, because, in addition to a taking by Mr. Mulford of a larger pecuniary legacy than Boyd, Mrs. Mulford, by the codicil, takes half the residuary estate (Mr. Boyd says that Mrs. Bennett explained that this gift was to requite kindnesses extended while he, Boyd, was in Canada), and the latter gift by codicil is followed by a transfer of the custody of the instruments to Mr. Mulford.

But as to the Mulfords, there is not a particle of evidence to show the least effort upon the part of either to control Mrs. Bennett’s will. Mr. Mulford knew that there was to be a will, because he was asked to be an executor, and was asked with reference to the Montclair charities, but, if he is believed, and no reason appears why he shall not be, he knew nothing more about the will until it was brought to him by Mrs. Bennett to put in his safe.

I have no difficulty in concluding that Mrs. Bennett possessed testamentary capacity, and that she cannot, under the testimony, be held to have been unduly influenced in the making of either will or codicil.

I will affirm the decree appealed from.


author: Van Syckel, J.

text:
    Scarlett & Scarlett et al., appellants, v. Michael Linckels et al., respondents.
    [Filed June 20th, 1898.]
    1. The power to sell lands contained in the declaration of trust in this case authorized the grantee of the power to make sale not only until the mortgages on the lands were fully paid, hut also until the beneficial owners made a written request that he convey the lands to them.
    2. It is unnecessary to decide whether the record of the declaration of trust was constructive notice of its provisions, and no opinion is expressed on that subject.

      On appeal from a decree advised by Vice-Chancellor Emery, who delivered the following opinion :
    This is a bill filed by the complainants to quiet the title to land, in Essex county, conveyed to them on January 12th, 1895, by one Frederick W. Canfield, who then held the legal title. The land conveyed was a small building lot, included in a large tract of land laid out by Canfield and the defendants for the purpose of selling in lots for building sites. Complainants paid to Canfield $450 in cash for the lot, and immediately commenced the erection of a house thereon for their residence, which they completed, or nearly so, by April 1st following, at an expense of about $3,000, the purchase and expenditure being made without any actual notice on their part of any claim of defendants to the land. The bill alleges legal title, and also relies on an equitable estoppel against the assertion by defendants of any equitable title in the land.
    Defendants set up an. equitable title founded on a declaration of trust signed by Canfield and themselves, by which Canfield declared that the lands were purchased with the funds contributed by each in certain proportions and were so held. The declaration further contained a power of sale to Canfield, and the contention of the defendants, in relation to the effect of the declaration of trust and power, is that Canfield’s power to sell had expired, and that his conveyance therefore passed only his (Canfield’s) legal interest in the premises, leaving their equitable interests undisturbed. This declaration of trust, dated July 15th, 1892, was acknowledged and proved March 28th, 1893, and recorded December 22d, 1893, in the book of deeds for Essex county. Defendants also claim that on the facts of the case there is nothing to estop them from setting up their title to the lands. Complainants claim that the declaration of trust was not constructive notice, for the reason that it was a paper not required or authorized to be recorded as a deed or conveyance.
    I will indicate briefly the conclusions I have reached upon these questions, leaving a fuller statement and opinion to be filed hereafter, if desired.

      First The declaration of trust was not a deed or conveyance of lands within the meaning of the registry laws, and its record was not, therefore, constructive notice. While the registry laws are' to be- liberally construed for the purpose of attaining their objects, yet the effect of the record as constructive notice is so far-reaching that it should not be given to any documents upon which the statutes have not conferred this effect. The declaration of'a resulting trust is certainly not a'conveyance of lands, nor is it required to be by the deed. It is merely evidence of the resulting trust, and the trust may exist without any writing at all, whether under seal or otherwise.
    The statute (Gen. Stat. p. 853 § 4, tit. “Conveyances”) authorizes the acknowledgment of “ any deed or conveyance of lands,” &c., and section 25 authorizes the clerk to record “all deeds and conveyances of lands which are acknowledged or proved according to law.” The test of the right to record under these sections is whether the title to lands is transferred by the deed. Wells v. Wright, 7 Halst. 131. If the title is transferred by the deed, then it may be recorded, and is notice of a trust declared in the deed upon which it is transferred. But the declaration of a resulting trust is not a grant or transfer of an estate in lands (1 Perry Trusts § 81); nor do the recording acts include such trusts or other purely equitable rights or liens. Harvey v. First National Bank, 7 Dick. Ch. Rep. 697, 708. The legal title in the. present instance was not by this declaration of trust conveyed or transferred by Canfield, but remained after the declaration of trust where it was before.

      Second. By the true construction of the power of sale, Can-field’s power of sale under this declaration of trust continued until the conveyance to defendants of their respective interests. This conveyance to themselves of the legal title to their respective interests the defendants had the right to require Canfield to make, by a written request to him, but they had no right to make this written request until after the mortgages then on. the property, and for which Canfield was personally responsible! had been paid. The contention of defendants on this, point is, that the power to sell ceased at once, after the mortgages had been in fact paid. My view of the construction is different, but the construction of the power in this respect is, to say the least, doubtful and ambiguous on the face of it. And a practical construction was put on the power by all of the parties by allowing the title to stand in Canfield, after the mortgages were paid, and allowing him to make several conveyances of lands sold afterward, but to convey afterward lands sold before. Such acts may be resorted to to determine the construction, if it is.doubtful or ambiguous on its face. And I think Canfield’s evidence also establishes that the title was allowed to remain in him, for the purpose of sale, by the express agreement of Scarlett & Scarlett, and the acquiescence of defendant Larter.
    As to the claim of the defendants, that the exercise of the power of sale by Canfield was illegal, because the price obtained was below the price fixed in the power, this evidently, as it seems to me under the declaration of trust, is altogether a matter of accounting, and does not affect the power to sell. Nor, as a matter of fact, have the defendants established that the price fixed was below the “ map prices ” refered to in the articles.

      Third. The facts in this cáse show, in my judgment, a clear case bf estoppel against the defendants from setting up their alleged equitable title to the lands by reason of Canfield’s lack of authority to convey. After the payment of the mortgages, and up to the time of the conveyance to complainants, the evidence shows that one Bock was continued by Canfield, and held out as the agent for the sale of these premises, under circumstances which charged all of the defendants with notice that lots on the tract were being offered for sale and sold by him for the benefit bf all the defendants. The purchase-money of several lots sold afterward was actually received, and, as Canfield swears, divided among the parties, and a division made, after the receipt of complainants’ money, by Canfield, through Scarlett & Scarlett, seems to have included the purchase-money for complainants’ lots. The sales of lots were made mainly for the purpose of building, and, in my judgment, the whole situation, as disclosed by the evidence, was such as to charge all of the defendants with notice that Canfield, after the payment of the mortgages, was continuing to make sales of the lots for their common benefit. It was manifestly a convenience in disposing of the lots that the title should continue to remain in Canfield for this purpose, and so far as Scarlett & Scarlett are concerned, I think the express agreement between Canfield and them was that it should so remain. Larter also, in my judgment, in view of his continued receipt from Canfield of the dividends of money arising from sales, and under the. other circumstances of the case, was charged with notice that sales of lots, for the purpose of building, were being made after the mortgage was canceled.
    At the argument defendants’ counsel disclaimed any intention to take from complainants the benefit of the improvements, but no such disclaimer is made in the answers, nor do I think that this case should be disposed of on the theory that if the defendants, on the present evidence, are not decreed to be estopped from claiming the benefit of complainants’ improvements and of the purchase-money paid to Canfield, such estoppel still remains to be asserted in partition or some other proceedings. This is a bill to quiet title under the act of 1870 (Gen. Stat. p. 3486), and by the sixth section of this act the final decree in the cause “ shall fix and settle the rights of the parties in said lands, and the same shall be binding and conclusive on all parties to the suit.” Decree in this suit, therefore, should be made on the basis of disposing of all legal and equitable rights of the parties, and in my judgment, upon the whole case, the defendants have not, nor has either of them, any right, title or interest, legal or equitable, in the premises in question, and I will so advise.

      Mr. Frederic W. Ward, for the appellants.

      Mr. Francis J. Swayze, for the respondents.
   The opinion of the court was delivered by

Van Syckel, J.

The respondents, who were complainants below, Sled their bill to remove a cloud from title and to compel appellants to convey any interest which they might have in the lands in controversy.

These lands were conveyed by Laura Smith and the Ticheners to Frederick W. Canfield, July, 1892, in fee.

At the same date Canfield executed a deed declaring that he held said lands in trust for Scarlett & Scarlett and others. The deed contained a power of sale by Canfield, and an agreement to convey a certain part of said lands to him.

This declaration of trust was recorded December 22d, 1893.

In January, 1895, Canfield conveyed the premises to Linckels, who had no actual notice of the deed of trust.

The clause in the declaration of trust which relates to the power of sale is as follows:

“And I, the said Frederick W. Canfield, for myself, my heirs, executors, administrators or assigns, covenant and agree with the said Scarlett & Scarlett, incorporated, its successors and assigns, and the said' Roland Larter, his heirs and assigns, that after the said mortgage debts are fully paid and satisfied, I will, upon their written request, convey to them respectively, at their expense, by good and sufficient deeds, their respective undivided interests in whatever lands may remain unsold or uncontraeted for; but the said Frederick W. Canfield, his heirs, executors, administrators or assigns shall not be required to make the said conveyance or conveyances until the said mortgage debts are fully paid, and, in the meantime, the said Frederick W. Canfield, his heirs, executors, administrators and assigns shall have full power and authority to sell and convey the said premises to purchasers, accounting for the proceeds thereof, at prices not less than map prices, except with the consent of one other member to this agreement.”

This agreement requires Canfield to convey to the appellants after the mortgage debts are paid, upon their written request to him to do so, but it is also expressly provided that Canfield shall not be required to make the said conveyance to appellants until the mortgage debts are fully satisfied, and that in the meantime the said Canfield shall have full power and authority to sell the lands.

In our judgment, the true construction of this provision is that it gave to Canfield the power to sell not only until the mortgage debts were paid, but after such payment and until the appellants made a written request upon Canfield to convey to them. The words “in the meantime” require the concurrence of two events to terminate the authority to sell, first, the satisfaction of the mortgages on the premises, and second, the written request of appellants to convey to them.

No such written request was made, and therefore Canfield did not exceed his authority in conveying to the respondents.

We agree with the vice-chancellor that the sale under this power is not voidable because the price was less than the map price. That is a mere matter of accounting between the parties to the trust deed, and besides, it does not appear that the price paid by respondents was inadequate.

Admitting that the respondents had notice of the declaration of- trust, their title is good, and it is unnecessary to consider whether the record of the declaration of trust was constructive notice to them of its provisions. Upon that question no opinion is intended to be expressed or indicated.

The decree of the court of chancery should be affirmed.

For affirmance — Collins, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Krueger, Nixon, Vredenburgh — 14.

For reversal — None.