text:
    In the matter of the probate of a paper writing purporting to be the last will and testament of Philip M. Wheaton.
    [Argued October 18th and 19th, 1904.
    Filed January 26th, 1905.]
    1. Opinions of expert witnesses, expressed iu answer to hypothetical questions which included statements of facts not established by evidence, must be accorded little weight where it appears that the opinions are based in whole or in part upon such facts.
    2. Evidence that a testator, who was claimed to have been incompetent to make a will, had, both before the execution of the contested paper and afterward up to his death, managed and cared' for his property, which was large,- and transacted *his own business as he had previously done, and at the making of the will had shown knowledge of his estate, recollection of relatives and those who might naturally expect his bounty, and a judgment of what he desired to do in that respect, justified the admission of the will to probate, although experts express opinions against his capacity.
    On appeal from the Cape May county orphans court.

      Mr. George H. Peirce, Mr. Edvin G. C. Bleakly and Mr. Henry F. Stockwell, for the appellant.

      Mr. Samuel W. Beldon and Mr. Joseph H. Gaskill, for the respondents.
   Magie, Ordinary.

This appeal brings up a decree of the Cape May county orphans court, made June 8th, 1904, admitting to probate a paper Avriting as the last will and testament of Philip M. Wheaton, deceased, who died a resident of that county on June 19th, 1902.

The appellant is Arabella Wheaton, the widow of the deceased, who filed a caveat against the admission of the paper writing to probate. Her contest in the court below was made upon the sole ground that, at the time of the execution of the paper propounded, deceased lacked testamentary capacity. Her appeal here presents no other ground of objection to the decree admitting it to probate. The contest in the orphans court was very prolonged. The first evidence was taken July 23 d, 1902, and the final argument occurred September 30th, 1903. The evidence taken during that period is contained in five volumes of twenty-six hundred and twelve printed pages, which have been presented to this court in the argument of this appeal. The consideration of this mass of printed matter, presenting not only the evidence and the objections of counsel, but repetitious argument of counsel on each question, has taxed my strength and patience. I have devoted much time to the case and am now prepared to state my conclusions, which I think I can do without such a review of the evidence as would unreasonably enlarge this opinion.

The claim of appellant is that on November 15th, 1900, when the deceased executed the disputed paper, he was afflicted with senile dementia of a paranoid or delusional character. In answer to a hypothetical question claimed to, present such facts in respect to the deceased as might be considered proved, one of the expert witnesses declares that, in his opinion, the deceased was a “victim of monomaniacal or senile dementia.” In answer to the same question in substance, another expert witness declares his opinion to be that the deceased was “suffering from senile dementia, associated with the evidences of disease of the vessels of his brain, and also with evidence of dementia.”

These expressions of expert opinion may be considered to fairly represent the grounds on which the lack of testamentary capacity on the part of the deceased can alone be sustained, and without pausing to consider such modifications of these opinions as were declared under the stress of cross-examination, and the presentation of other facts which might be deemed proven, I think there may be two observations made thereon. In the first place, it is obvious that these opinions express practically two conditions of mind — one, the weakening or decay of the mental faculties occasioned by age, and amounting not to mere senility, but to dementia; the other a state of delusion. If from the evidence either condition is not satisfactorily shown, the opinions must carry but little weight.

The facts which I deem to be established and pertinent to this inquiry may be thus briefly expressed. The deceased, at the time of executing the disputed paper, which was on November 15th, 1900, was about seventy years of age. At a very early age he had been left fatherless and had procured employment upon a coasting vessel, and remained for many years in that business, rising from his first position to become a captain. He was evidently of a saving disposition and endowed with business qualities which enabled him to accumulate a large fortune, which, after he left the coasting business, he employed in various enterprises. He was so successful that he died with an estate said to be worth $200,000, and his personal property was inventoried by the administrator pendente Ule at about $180,000. Up to December 25th, 1899, he was in good health, engaged in his different 'enterprises, attending to them habitually and continuously, and investing his accumulations with care and prudence.

On that' day he was taken sick. A physician who attended him, who was an old friend, declares that he had a stroke of paralysis. From this the deceased, within'a few weeks, rallied so as to be enabled to1 leave his house and go about. But his physical condition underwent an undisputable change. He had lost weight and he walked with less vigor than before. But from’ the time he was able to-, which was some time in June, 1900, he resumed his habit of going to Philadelphia to attend to his business. He was then, and had been for some time, the proprietor of a ship chandlery business, managed by a man in whom he evidently had great confidence, yet deceased had been accustomed to go to the place where that business was carried on to examine into the methods and provide for the means of carrying it on. This habit he resumed when able to return to Philadelphia. He was also, during that time, the president of a business corporation in which he had invested money and which was managed by his son-in-law, the husband of his only child. During the period between his stroke of paralysis and the execution of the disputed paper, deceased continued to invest his accumulations and unemployed capital, loaning sometimes upon notes and sometimes upon mortgages. In these transactions he conducted himself with the same capacity, so far as any witnesses observed, that had been shown by him during his previous career. He had previously been a member of the official board of the Methodist church which he attended. He took part not only in the meetings of the church, but in the transactions of the official board, expressing his views and opinions on all matters before them as he had previously done.

He proceeded about the business of the execution of this paper in a manner indicating judgment and prudence. He first made inquiries of a lawyer, who had married one of his nieces. The object of his inquiries seemed to relate to Ms power of disposing of Ms personal property, and it is fair to infer that he was somewhat surprised to be informed that he was permitted by law to dispose of his whole personal property, and that Ms wife was not entitled, as he had thought, to one-third thereof.

There is evidence of some statement by the deceased indicating that he had sought other advice on the subject of his wife’s right in Ms personal property. Thereafter he applied to an attorney' practicing in Ocean City, where the deceased lived. The attorney was the son of the pastor of the Methodist church which deceased attended. Without going into details of what took place in the interviews between the deceased and the attorney, it is probably sufficient to say that the deceased conducted himself and gave his instructions in a manner indicating a thorough-knowledge of the estate he had tire power to dispose of, the persons who might claim some recognition in the disposition thereof and a thorough knowledge of what business he was engaged in. It is not too much to say that unless the evidence of the draughtsman of the will be rejected as false, for which I can discover no reason, the deceased indicated a more than usual degree of capacity in the business of making his will.

An examination of the will will indicate that its provisions must have required thought and judgment; gifts to Ms nieces and nephews are, in some instances, provided to be offset by debts owed to him by their husbands or wives. The provision for his wife, originally expressed by the deceased in his instructions to include a trust of $20,000, the income of which was to be paid to her during her widowhood, was changed (on the suggestion of Ms lawyer that the rate of interest might not keep up at six per cent., which, had been deceased’s notion) so as to provide for a fund sufficient to raise $1,200 annually for her benefit. The will was then drafted, read over to and considered by deceased, and it was executed in the presence of two witnesses, one of whom was the pastor of the Methodist church. After this execution the attorney whn had drafted the will became doubtful whether, since the deceased had given a legacy of some considerable amount to the Methodist church, the status of the will might not be affected by the fact that the pastor of the church was an attesting witness. He consequently copied the whole will and the deceased executed the recopied will in the presence of two witnesses who were acquaintances and friends of some standing. The execution was in every way such as is required by law.

After the execution ■ of this paper deceased continued to manage his affairs very much as before. He had, however, in the fall of 1900, closed out his ship chandlery business in Philadelphia, and consequently was not required to go to that city as frequently as before. In other respects, as to collecting interest, enforcing payment when interest was behind and making new investments with prudence and care, his conduct seems to have been not different from that previously exhibited. He was, beside, after the execution, elected a director of a local bank, and from that time he continued to attend its meetings and took part in the discussion of matters which came before the board intelligently.

Pie seems to have been' a devoted member of the church he attended and was liberal in his benefactions. The church property was encumbered by a mortgage for $3,500 held by him. The pastor and the official board resolved to malee an effort to raise enough money to pay off that encumbrance. The deceased attended a meeting when this project was opened to the church and subscriptions invited. The project included the liability of those subscribing only in case the whole amount was raised. In tire morning meeting deceased subscribed $350; in the evening meeting, the amount subscribed not having been sufficient to bind the subscribers, the deceased made an additional subscription of $150, making in all $500 as his contribution. The subscriptions were payable in one year. Some time in the early part of June, and about ten days before his death, the officials of the church desired to. close the transaction and take up the outstanding mortgage encumbrance. A deputation of the board went to the attending physician of the deceased, who was then suffering under another stroke of paralysis, and, it cannot be doubted, was then considered to be near his death. This physician was a member of the board, and he accompanied tire deputation to. the bedside of the sick man. Arrangements had been made to raise money upon notes of the subscribers to the fund for paying off the mortgage. The deputation went furnished with a check drawn to the order of the deceased, whether for $3,000, which would be the amount of the mortgage if the subscription of the deceased was first applied thereto, or for $3,500, the evidence leaves a little obscure. At all events, a check for one or the other amount was then delivered to the deceased and the mortgage and bond were receipted by him and given up to the church for cancellation. This did not, however, end the transaction. The deputation had evidently settled upon a proposition to be made to the deceased and selected a spokesman. He presented to the deceased the desire of the church to- build at some future time a new stone edifice, and their wish to create a fund to be devoted to that purpose. The deceased was asked by the person speaking for the deputation if he did not desire to contribute to that fund, with the understanding that the contribution should be used for no other purpose than to. build the new edifice. He assented and asked them what they thought he ought to give. It was replied that it was for him to determine. He then turned to his wife and asked her what she thought he ought to give, and she suggested $5,000 as a proper amount. The representatives of the board said that they thought that the church would be satisfied if the deceased would return them the check which he then held, and which had been given him in payment of his mortgage. To this the deceased consented and endorsed the check and delivered it to the representatives of the church, who accepted it. Prayer was then made, and the deceased took occasion to give some touching advice to the youngest member of the board, who happened to be present. During all these proceedings the attending physician was present, and he was, as before stated, a member of the board.

This statement of the facts respecting the business of the deceased from the time of his first stroke of paralysis up to his death, in my judgment, renders it impossible to rely upon the opinion that declares him to be, in the language frequently used in this case, a “senile dement." If a continuance of business ability, the recognition of business men and his medical attendant, his successful conduct of affairs without loss, with prudence and caution, justifies any other conclusion than that the business capacity of the deceased continued during the period in question, it cannot be discovered by me.

The intelligent gentlemen who expressed the opinions which, as I have stated, characterized the claim of the appellant, must Obviously be considered to have been affected by the facts presented by the hypothetical question. It seems to me clear that if there had been no other facts presented than those which I have above stated respecting the deceased’s business capacity, no opinion could have been expressed by them declaring deceased to have been afflicted by senile dementia. I think it plain that other facts presented in the hypothetical question were deemed to justify the opinions expressed, notwithstanding the facts exhibiting plain business capacity.

The hypothetical question put to the expert, Dr. Pickett, and comprising nearly six printed pages, a large part of which is taken up with statements respecting. the alleged hatred and aversion of deceased toward his wife, including as indicative thereof assaults, rudeness in habits and speech, contained further statements to the effect that after the first stroke of paralysis deceased charged his wife with “corresponding with other men," and at times charging her with “putting things in his drink to poison him." Connected with these alleged facts, the hypothetical question included statements of the deceased’s conduct as an apparently sincere member of the Methodist church, constant in attendance at the church and giving freely thereto, and indicating to those about him the conduct of a Christian gentleman. Without more detail, I think it is obvious that the hypothetical question presented to these witnesses the case of a man, formerly on good terms with, his wife, becoming, after the first stroke of paralysis, abusive to her, and guilty of conduct which was not occasioned by any apparent cause; in other words, of a 'man who in his church and official and business life was courteous-and agreeable, while in his family life he was a hypocrite and a brute.

This idea of a changed condition of the mind of the deceased toward his wife is, in my judgment, the sole ground upon which this contest can be supported. It is expressed in the evidence of the attending physician, who declares that in his judgment deceased had an “insane aversion to his wife.”

It is not unworthy of observation that the evidence respecting the conduct of deceased toward his wife comes almost entirely from her. The deceased and she lived together, keeping no servant. Whatever corroboration her story has comes from those who were present on few occasions, and then casually, nor did the}r corroborate the most serious of the charges made by the appellant.

A review of her evidence produces a strong impress-ion, not of untruthfulness, but of exaggeration. But assuming that her evidence is to be taken in its full force, it remains to consider whether it indicates, as these experts say, monomania or delusion. If we’ assume that he had and expressed an actual aversion to his wife, and if we assume that this aversion was first exhibited after his stroke of paralysis, are we justified in drawing the inference that it was due to a mental disturbance? That aversions arise without apparent cause is not unknown. If, however, an aversion arises because of some cause which does not in fact exist — that is, upon some delusion; some conception of the mind as to a person or thing which is in fact untrue, but which is believed to be true — then I think the monomania spoken of may be indicated and possibly extend to dementia. But to produce that effect, it seems to me that the evidence should be sufficient to indicate not mere spasmodical and occasional delusions, but delusions that persist and pervade the mind, and are exhibited in the conduct of the demented man. In this respect, it seems to me, the learned gentlemen have been unconsciously deceived. For example, the alleged fact that deceased charged his wife with corresponding with other men is not justified by any evidence that I can discover other than this: She states that she had written a letter and gone out to post it while her husband was absent from the house; that he met her when she was returning, and being told that she had posted a letter, she declares that he said to her, “There is no letters to be mailed unless I mail them for you. Iiow do I know who you are writing to? You may be writing to some man tor all I know.” So far as appears in the evidence, I can find no other justification of the alleged fact that he charged his wife with corresponding with other men.

Nor'is there any more substance in the declaration respecting his wife putting things in his drink to poison him. On this subject she declares that upon one occasion he asked her if she had put some poison in something she was giving him, and on other occasions he had suspiciously eyed the milk which she was administering to him. But when it is considered that for long before and after this alleged conduct the deceased continued to take at his own.table meals which his wife prepared, to drink of coffee which she made and which she did not drink, and to taire, at least at times, the medicines directed to be administered from her hands, and that this continued until his death, I do not think it too much to say that it is unreasonable to declare that he had charged her with attempting to poison him, and it is erroneous to deduce therefrom the theory of a delusion of poisoning or attempting to poison.

Nor was the conduct of the deceased, if his widow’s statement be taken to be true, without indications that, however overbearing and even brutal he was, he had placed reliance upon her judgment and acted upon her suggestions. At the time the church was endeavoring to raise money for the purpose of paying off the mortgage, it is proved that the deceased, in the evening, when he increased his subscription by $150, declared that he did so because his wife had told him that he had not given as much as he ought to have done; and it seems to be shown that he made the additional subscription in her name. As has been stated, when the official board of the church paid off its mortgage and sought to obtain from him an 'additional gift, he appealed to her judgment, and upon its being delivered he made no remonstrance or objection, although the amount she suggested was thought by the representatives' of the church to be more than they ought to ask or receive. Nor can the provision made by the deceased for his wife be ignored upon this subject. If he had an aversion which was without cause, the product of a diseased mind, founded upon a delusion permanent and persistent, it would be reasonable to expect that when he ascertained that he could dispose of his personal property by testament he would have indicated that aversion by depriving her of all interest in his property except that interest in his real estate, which the law protected. But this conduct, which, on the theory of these experts, would be reasonable to be expected, was not that which deceased adopted. He gave to his wife the life use of the house in which they had resided, with all its furniture. He directed the establishment of a fund to be invested with great precaution, and to be sufficient to be capable of furnishing to his widow $1,300 a year, and he gave as a reason for considering that he was providing well for her that the provision he made was more than double that which he and she both together expended.

In considering whether this provision was liberal in view of the extent of his property, we must not be misled by our views of what would be a proper provision. Captain Wheaton, was to make his own will, and form his own judgment upon that subject. If his judgment was not affected by delusion or dementia, it cannot be set aside because it does not accord with our views of what he ought to have done.

The opinions of the expert witnesses called by contestant, which I have above discussed and found not justified by the real facts, are furthermore opposed by the opinions of many witnesses who were the friends or business and church associates of the deceased, and who express their opinions upon facts and observations testified to by them. They are opposed likewise to the opinion of an expert witness who was examined by the proponent of the will, and who declares that in his wide experience of mental diseases he has not observed a case of senile dementia in which the person was the subject of permanent or dominating delusions. In this conflict of opinion it is not easy to decide, but it is safe to adopt the view expressed by the witness last referred to, when he declares that a suggested delusion, say as to poisoning or attempt at poisoning, could not be inferred from a single or few statements when the subject continued to partake of food and drink prepared by the person.toward whom the alleged delusion was pointed.

My review of the evidence leads me to the conclusion that the deceased was possessed of testamentary capacity when he executed the disputed paper, and that the decree so declaring and admitting the paper to probate as his last will and testament was proper to be made, and must be affirmed.


source: Caselaw Access Project

author: Magie, Ordinary.

license: Public Domain

text:
    In the matter of the last will and testament of Ann Beggans, deceased.
    [Argued October 18th, 1904.
    Filed January 31st, 1905.]
    1. To a paper writing, offered for probate as a last will and testament, an attestation clause was appended, signed by two witnesses, in these words:
    “We, the undersigned, witnessed Mrs. Ann Beggans sign this paper, which she declared and acknowledged to be her last will and testament.
    “Michael B. Holmes, “Peter F. Maguire.”

      Held, that such an attestation clause, being imperfect, i. e., stating the performance of some of the acts required to make a valid testament, and omitting to state the performance of other acts also required, is prima facie evidence of the facts stated, but as to facts not stated, possesses no probative force.
    2. The testamentary witnesses, when called to testify, disagreed as to whether there had been a publication of the paper as a will by deceased. —Held, that, as the witness who denied publication had signed the attestation that deceased had declared the paper to be her last will, and had made an affidavit before the surrogate to the same effect, the weight of evidence justified a finding that there had been due publication.
    3. The testamentary witnesses were also at variance as to the time when they subscribed their names, and whether they -had done so before or after the deceased had executed the paper. The testimony of the witness who asserted that the signatures of the witnesses were made before the deceased executed the paper being corroborated by a witness present at the time — Held, that the conclusion against the validity of the execution was justified.
    4. The testamentary witnesses agreed in stating that their signatures were made, not in the room in which deceased was, but in an adjoining room. They were at variance as to the place in that room where their signatures were made, one asserting that the place was within the vision of the deceased, if she had placed herself in a position to observe the witnesses’ act; the other assorting that the place was wholly without her vision. — Held, that in the absence of proof that deceased took a position from which she observed or might observe the act, the presumption that the signing in an adjoining room was not in the presence of the deceased, as required by our statute, was not overcome.
    On appeal from the Hudson county orphans court.

      Mr. Louis G. Morten, for the appellant.

      Mr. Thomas F. Noonan, for the respondent.
   Magie, Ordinary.

This appeal challenges the correctness of -a decree of the Hudson county orphans court adjudging that a paper writing which had been theretofore admitted to probate by the surrogate of that county as the last will and testament of Ann Beggans, deceased, was not the last will and testatment of said deceased, and reversing the surrogate’s order and revoking the letters testamentary issued thereon by him.

The transcript does not disclose the grounds upon which the orphans court made the decree attacked, but the decree is here supported in argument upon three grounds, viz.- — -first, that there was no publication of the paper as the last will of deceased; second, that the witnesses thereto signed their names before the deceased executed Hie same by making her mark; and third, that the witnesses did not sign their names in the presence of deceased.

The attestation clause appended to the paper was not in the usual form. It reads thus:

“We, the undersigned, witnessed Mrs. Ann Beggans sign this paper, which she declared and acknowledged to be her last will and testament.
“Michael B. Holmes,
“Peter F. Maguire.”

In Allaire v. Allaire, 37 N. J. Law (8 Vr.) 312, Mr. Justice Depue, in the supreme court, declared that a perfect attestation clause to a paper purporting to be a last will is prima facie evidence of all the facts stated therein, and that a will may be established upon the presumption arising from the form of the attesting clause unless there be affirmative evidence to disprove its statements. The same doctrine has been frequently enunciated in this court, and in Allaire v. Allaire, 39 N. J. Law (10 Vr.) 113, the legal rules declared by Justice Depue in the above-cited opinion were held in the court of errors and appeals to have been properly settled. See, also, McCurdy v. Neall, 42 N. J. Eq. (15 Stew.) 333; Elkinton v. Brick, 44 N. J. Eq. (17 Stew.) 154; Clark v. Clark, 64 N. J. Eq. (19 Dick.) 361; Darnell v. Buzby, 50 N. J. Eq. (5 Dick.) 725; S. C., 52 N. J. Eq. (7 Dick.) 337.

By a perfect attestation clause is meant one that asserts the performance of all the acts required to be done under our statute of wills to make a valid testamentary disposition. In the absence of any attestation clause the proponent must affirmatively prove the actual performance of all the required acts. Stewart v. Stewart, 56 N. J. Eq. (11 Dick.) 761; Swain v. Edmunds, 53 N. J. Eq. (8 Dick.) 142; S. C., 54 N. J. Eq. (9 Dick.) 438.

When an attestation clause states the performance of some of the requisite acts, but omits to state the performance of acts, also requisite, on reason and authority, the proponent must establish by evidence tire performance of the latter acts. Ayres v. Ayres, 43 N. J. Eq. (16 Stew.) 565.

It will be observed that by the attestation clause now under consideration the subscribing witnesses assert the performance of two requisite acts, thus — first, that the deceased “declared” the disputed paper “to be her last will and testament;” and second, that they “witnessed” the deceased “sign this paper.” They wholly omit to certify that they subscribed their names thereto •in the presence of deceased. This requisite of the statute is designed to prevent substitution and fraud upon an intending testator (Mandeville v. Parker, 31 N. J. Eq. (4 Stew.) 242), and no amount of proof that the very paper signed by deceased was that which the subscribing witnesses signed will avail to establish it as a will if it fails to show that their signatures were affixed in the presence of the deceased.

We may now consider the reasons upon which it is argued the orphans court must have rejected the paper.

First, as to the publication of it by deceased as her will. The attestation clause leaves it perhaps uncertain whether the declaration by deceased that it was her last will and testament was made in the presence of the witnesses or both of them. But, assuming that it thus omits to assert due publication, the question is whether proponent presented satisfactory proof of that fact. Both subscribing witnesses were called and examined. Holmes, who drafted the will at the request of deceased, testifies to facts justifying the inference of publication by assent. Maguire, the other witness, strongly contradicts him, and testifies that there was no language used in the interview which conveyed to him the idea that the paper was a will. But Maguire’s testimony is met by the affidavit which he made before the deputy surrogate when probate was applied for. In that he swore that he saw deceased sign the paper and heard her publish and declare it to be her last will and testament. It seems to have been declared that such a deposition is admissible evidence before the orphans court on appeal, and, if supported by a perfect attestation clause, raises a strong presumption in favor of due execution. Ludlow v. Ludlow, 36 N. J. Eq. (9 Stew.) 597; Farley v. Farley, 50 N. J. Eq. (5 Dick.) 434. But upon the positive evidence of Holmes, considered in connection with the denial of Maguire, shaken by the express statement of the attestation clause which he signed, and by his positive deposition in the surrogate’s court, and his lame explanation; of the inconsistency of that deposition with his testimony, I am inclined to hold that the proponent established publication before the two witnesses.

The second question is whether, as claimed, the witnesses subscribed the paper before deceased executed it, which it appears she did by executing a mark with the aid of Holmes. On this subject the two subscribing witnesses are in absolute antagonism as to facts. Maguire swears that Holmes and he both signed the paper before deceased put her mark upon it. Holmes swears that Maguire and he stood by the bed of deceased when she made her mark, and that he and Maguire afterwards subscribed. If this may be considered to leave the testimony in a state of equilibrium, the balance is, in my judgment, overcome by the evidence of a daughter of tire deceased, who was called as a witness by proponent. She was in the bedroom where deceased was lying on the bed when Maguire came in. He went into the adjoining room and sat down. Holmes canie in soon after and asked for the paper. It had been previously drawn by him. Deceased called for another daughter, who produced the paper and gave it to her mother, who in turn gave it to Holmes, who went into the adjoining room with Maguire. This witness also went in there and moved a table to the centre of that room, at which Holmes sat down and asked Maguire if he would sign the document; that she tiren went back to her mother’s bddroom and was requested by her to get her a drink of water, and she left the bedroom for that purpose. But she says that before she left the bedroom she saw both Holmes and Maguire writing in the adjoining room, and that before they did so they had not been at her mother’s bedside. It clearly appears that the door between that bedroom and the adjoining room in which Holmes and Maguire were was open, and there was nothing to prevent the witness seeing them and observing what they did. As the only writing done by Maguire was his signature, the testimony of this witness strongly corroborates him, and on this particular his deposition before the surrogate is silent. In my judgment this brings the case within the doctrine of Lacey v. Dobbs, 63 N. J. Eq. (18 Dick.) 325, and the decision of the court below may -well stand on that ground.

The third question is whether proponent’s proof establishes the fact that the witnesses subscribed their names to the paper in the presence of deceased.

On this subject the attestation clause is silent and the subscribing witnesses are again at variance. Both, however, agree that their act of subscribing was not done in the room in which deceased was, but in the adjoining room, at a table therein. They disagree as to the position of the table at that time, Maguire asserting that it was in the centre of that room and Holmes asserting that it was on one side of that room. It is conceded that if it was in the centre, deceased could not have seen .the act of the witnesses in subscribing, while if it was on the side, as fixed by Holmes, the deceased could have seen the act if she had turned in that direction.

A diagram of the bedroom and of the adjoining room and the various pieces of furniture therein was put in evidence. It was made under the instruction of the daughter of the deceased, who is the principal beneficiary under the will. She placed the table at which Holmes said the witnesses signed in the position in which she says it was at the time. Assuming that the daughter correctly pointed out to the draughtsman of the plan the respective positions of the furniture, it thereby appears that deceased, who was ill, was lying in a bed the head of which was against the partition between the bedroom and the adjoining room. The door between those rooms was a sliding door and open. The table in the adjoining room was in such a position as to leave a possible vision to one lying on the bed for a width of three and one-half feet. But in order to see the act of the witnesses in subscribing, the deceased would have been obliged not only to turn her head, but to look, as it were, above her head. If deceased was sitting up in the bed she would have been obliged to turn her head over her shoulder in order to see the witnesses.

There is no satisfactory proof as to which position deceased was in when the signatures of the witnesses were made, and no proof at all that she had turned her head or placed herself in a position to see that act.

In Mandeville v. Parker, 31 N. J. Eq. (4 Stew.) 242, Runyon, Ordinary, declared that, under our statute requiring the subscribing witnesses to a will to sign in the presence of the testator, an attestation in the same room in which testator is is prima facie an attestation in his presence, and on the other hand, an attestation made in another room is prima facie not made in his presence. In Ayres v. Ayres, 43 N. J. Eq. (16 Stew.) 565, McGill, Ordinaiy, applied that doctrine to a case in which the witnesses’ signatures were affixed in the same room, upon a bureau at the foot of the bed on which deceased was lying. Upon the proofs he found that deceased at the time was so supported that he could see the motions of the pen used by the witnesses, though be could not distinguish the letters the pen was forming, and that his eyes were open during the signing, and he held that the signing under those circumstances was a sufficient compliance with the statute.

If in the case in hand it had been made to appear that the deceased placed herself in a position to see the witnesses signing, and was looking in that direction, it may be that the presumption that the signing in the adjoining room was not a signing in her presence would have been overcome. But in the absence of such proof the presumption is not overcome. If Holmes is correct in his description of the place of signing by the witnesses, the signing is not shown to be a sufficient compliance with the statute. If Maguire is correct, the signing could not have been seen by deceased. The decree is therefore supported on this ground.

Upon both grounds above indicated, the decree must be affirmed.


text:
    In the matter of the estate of John M. Lippincott, deceased.
    [Argued October 18th, 1904.
    Filed January 31st, 1905.]
    By the will of John M. Lippincott, his residuary estate was bequeathed and devised to a trustee, in trust (among other things) to pay the net income to his daughter, Annie, for life, and in case the net income should prove insufficient for her necessary support and maintenance, authority was given the trustee to pay to her, out of the principal, such weekly or monthly allowance as might be required for such support and maintenance. — Held, that no jurisdiction has been conferred upon an orphans court, either by section 3 of the Orphans Court act of 1898, or by any other legislation, to determine whether the trustee was properly performing the trust, or to direct the trustee how to perform the same.
    On appeal from a decree of the Cumberland county orphans court.
    By the will of John M. Lippincott, deceased, the following-provision was made:

      “Fourth. All the residue and remainder of my estate, real and personal, * * * I give, devise and bequeath to the Cumberland Trust Company, of Bridgeton, to have and to hold the same upon the following uses and trusts, viz., to collect the rents, issues and profits of my estate, and, after paying taxes, insurance premiums, water rents and the expenses of keeping said real estate in proper repair, to pay the net income thereof to my daughter, Annie M. Lippincott Stell, for and during her natural life.

      “Fifth. I authorize and empower said trust company to sell and convey any and all of my real estate in its discretion. The net proceeds to be invested and held in place of and upon the same trusts as the lands represented thereby.

      “Sixth. In.case the net income of my estate shall prove insufficient for the necessary support and maintenance of my said daughter, I authorize said trust company to pay to her, from time to time, out of the principal of my estate, such weekly or monthly allowance as may be required for her said necessary support and maintenance.
    . “Seventh. On the death of my said daughter, all of my estate which shall then remain in the hands of said trust company shall be divided in the following manner, to wit: two-thirds (2/s) to the issue of my said daughter, if any there be, and one-third (Vs) to my said three grandchildren, in the proportions specified in paragraph second of this will. If my said daughter shall die without issue living at the time of her death, then all of the said residue of my estate shall be divided between my said three grandchildren, in the proportions aforesaid, viz., one-half to William, and one-quarter each to Elsie and Mary, to them, their heirs and assigns forever. Neither the issue of my said daughter, if any, nor my said three grandchildren, to come into actual possession of any property given to them in this will until they shall respectively attain the age of twenty-one years. During their minority the income of their respective shares in my estate shall be applied by said trust company towards their support, maintenance and education.”

      Mr. Walter H. Bacon, for the appellant.

      Mr. Rex H. Donnelly, for the respondents.
   Magie, Ordinary.

A petition was presented to the Cumberland comity orphans court by Anna M. Lippincott, representing herself to be the beneficiary in the clauses of the will of John M. Lippincott, deceased, which are set forth in the above statement, and therein named as Annie M. Lippincott Stell. It charged that the Cumberland Trust Company, the trustee named in said will, had paid her the income arising out of the trust estate in its hands, but that such income had proved wholly inadequate and insufficient for her necessary support and maintenance, and that she had applied to the said trustee to pay her an allowance out of the principal of the trust fund such as was required for her necessary support and maintenance, but that the trust company had refused to pay her any such allowance until that court should so order.

The petition prayed the aid of the orphans court in the premises, and -an order requiring the trustee to pay the petitioner, from time to time, out of the principal of the trust fund, such weekly or monthly allowance as the proof should show to be required for the petitioner’s necessary support and maintenance, in accordance with the provisions of said will.

Upon this petition a citation issued, bringing in the Cumber1 land Trust Company as executor of and trustee under the will, and as guardian of William, Mary and Elsie Lippincott, the grandchildren of the deceased named in the seventh paragraph of the will above recited.

Upon the proofs taken before the court below (which proofs have not been brought up with the transcript), an order was made requiring the Cumberland Trust Company, of Bridgeton, as trustee, to pay to the petitioner, out of the principal of the trust fund, the sum of $55 to defray an indebtedness of petitioner, presumably incurred for her support, and the further sum of $5 every week thereafter until further order of the court.

The order also recited that it appeared to the court that the personal estate of the deceased had become exhausted and that the only available assets consisted of real estate, and thereupon it was further ordered that the trustee should, for the purpose of creating a fund to meet the requirements of the previous order, proceed to sell, in its discretion, a part of said real estate, and that when the fund thus created should be exhausted the trustee should report to the court for further order.

The appellant in this case is William E. Lippincott, one of the infant grandchildren of the deceased named in the seventh paragraph of the will, who, by its terms, has an interest in the trust fund. He appears by a guardian and next friend, and his sole contention, is that the orphans court lacked jurisdiction to make the order appealed from. On the part of the respondents it is claimed that the orphans • court possessed jurisdiction in that respect under tlie provisions contained in section 3 of the Orphans Court act of 1898 (P. L. 1898 p. 715), by which jurisdiction is conferred upon that court to entertain suits for the recovery of legacies and distributive shares under certain circumstances. They insist that such is the nature of this suit.

Those provisions of the statute afford no foundation for a petition and proceeding of this sort. The petitioner has no legacy or distributive share which could be decreed to be paid over to her under such a proceeding. The legatee and devisee under this will is the trust company. It takes the residuary real and personal estate of the deceased in trust (among other things) for petitioner’s benefit, and this proceeding is plainly one to require the trustee to perform a duty in respect to the trust fund which petitioner asserts they are hot performing in the manner required.

It is not open to doubt that relief of this kind falls within the jurisdiction of the court of chancery. No jurisdiction of that nature can be found to have been conferred upon tlie orphans court. The jurisdiction over legacies is plainly inadequate to include tlie enforcement of trust duties, and no legislation respecting that court has been discovered upon which its jurisdiction in this respect can be grounded. Such was the conclusion reached by me in O’Callaghan's Case, 64. N. J. Eq. (19 Dick.) 287, and in Ellicott v. Kuhl, 60 N. J. Eq. (15 Dick.) 333.

In the case of Eberhardt v. Perolin, 48 N. J. Eq. (3 Dick.) 593, a decree of the orphans court had undertaken to construe a will and direct what should be done by a person to whom a part of the estate was left to be disposed of under certain recommendations set forth in the will of a deceased person. The orphans court decree was brought into this court by appeal, and McGill, Ordinary, declared that the proceeding in which that decree was made was not a suit for a legacy or for distribution, in which cases the orphans court would have had a semblance of jurisdiction, under the Orphans Court act then existing, but was one for the establishment of a trust, and therefore one properly of chancery cognizance. Notwithstanding his expressed opinion, the ordinary proceeded to consider the matter presented upon the appeal as to the merits, because no objection to the jurisdiction had been made or argued by counsel. He expressly declared that his decision was not to be made a precedent in favor of the doubtful jurisdiction. That case was brought into the court of errors and appeal by appeal, and the decree of the ordinary was reversed upon considerations of the questions presented upon the record. Eberhardt v. Perolin, 49 N. J. Eq. (4 Dick) 570. In doing so the court of errors and appeals, speaking by Mr. Justice Van Syckel, declared that the power of the orphans court to take cognizance of the case had not been raised in the court of errors and appeals or in the court below, and no opinion was expressed upon it.

The jurisdiction of the orphans court to- act on this petition was challenged in that court. The question of jurisdiction is presented on the appeal. If the order appealed from was made without jurisdiction, it will afford no protection whatever to the trustee. As I find it thus presented, I must determine it in accordance with the cases above cited.

The order must therefore be wholly reversed, and as this objection was plainly presented in the court below, I think the reversal must be made upon the payment of the costs of this appeal by the respondents.


text:
    In the matter of the paper writing purporting to be the will of Johanna Coughlin.
    [Argued October 18th, 1904.
    Filed January 31st, 1905.]
    1. Where deceased was shown to have been suffering from pneumonia, accompanied by delirium, for three days before and until death ensued, three days after the purported execution of a will, the burden was on the proponent, in a proceeding to probate the will, to show that it was executed while deceased was in a lucid interval with sufficient capacity to make a testamentary disposition of property.

      2. In a proceeding to probate a will, evidence held to sustain a finding that the alleged will was not executed during a lucid interval of a delirium which had developed previous to the purported execution thereof.
    On appeal from Hudson county orphans court.

      Messrs. Collins & Corbin, for the appellant.

      Mr. Charles C. Kelly, for the proponents.
   Magie, Ordinary.

Johanna Coughlin was admitted to St. Francis hospital November 5th, 1903, suffering from a severe compound fracture of one leg.

The evidence of the hospital physicians renders it clear that on November 10th the patient was attacked by pneumonia, accompanied by delirium of a low muttering character, which gradually increased until she died in the very early morning of November 16th.

The attending physicians differ as to whether the pneumonia was septic in character or not, but both agree on the fact that the disease developed on November 10th, and was accompanied by delirium.

Upon the uncontradicted proof, it is obvious that the proponent of a paper purporting to make a testamentary disposition of property by a patient thus afflicted must sustain the burden of establishing that the paper was executed while deceased was in a lucid interval with capacity sufficient to make such a disposition.

The paper offered for probate was executed in the morning of November 13th. The scrivener who drew the paper testifies that he went to the hospital on that day between nine and ten o’clock a. m., and, sitting by the bedside of the deceased, drew the paper, after ascertaining, as he says, her intentions as to the disposition of her property. He declares that after it was drawn he read the paper to deceased, who assented to it and executed it by making her mark, and in answer to his question, indicated that it was her will and that she desired him and a woman relative, present during the whole interview, to witness the execution of it.

The learned judge of the orphans'court, before whom these witnesses were produced and examined, failed to be convinced that their evidence established the existence of a lucid interval of the delirium which had previously developed, and which it is clear existed subsequently and continuously. My review of the evidence has led me to the same conclusion, though with some hesitation. The scrivener had no previous intimacy with the deceased, and lacked the ability of comparing her usual mental state with that which she exhibited in giving instructions to him, which seems to have been mainly done by responses to questions put by him, which responses he admits he is unable to recall or state.. The other witness simply testifies to the execution of the paper, and was not examined as bo what otherwise took place from which the mental state of deceased might be discovered.

The result is that the decree denying probate was not erroneous, and it must be affirmed.


author: Bergen, Vice-Ordinary.

text:
    In the matter of admitting to probate a paper purporting to be the last will and testament of Benjamin Middleton, deceased.
    [Filed November 22d, 1904.]
    The mere fact that a testator made his mistress the chief beneficiary of his will raises no presumption that she had secured an influence over him, which she would naturally improperly exert to advance her own interest.
    On appeal from the Cumberland orphans court.

      Mr. Samuel K. Robbins and Mr. Louis H. Miller, for the appellants.

      Mr. Martin W. Lane and Mr. James S. Ware, for the proponents.
   Bergen, Vice-Ordinary.

This appeal requires the consideration of the decree of the orphans court of the county of Cumberland, admitting to 'probate the last will and testament of Benjamin Middleton, deceased.

The testator died on the 7th day of January, 1904, leaving a last will and testament, and surviving him, as next of kin, as appears in the petition for probate, a widow, Ellie J. Middleton, residing in Philadelphia; Louis Middleton, a brother, residing in Tioga, Pennsylvania, and Bushrod Hotteck, a nephew, residing in the city of Philadelphia. The will bears date the 6th day of January, 1904, and after providing for the payment of his debts, funeral expenses and place of burial, and the erection of suitable tombstones at his grave, disposed of his estate as follows: To Benjamin, the son of John Lakner, the sum of

$500, when he arrives at age; to his wife, Ellie; his parlor furniture, piano, sewing machine and whatever she might be entitled to for dower in his estate, with the recital that she had deserted his home on the 4th day of October, 1890; to his brother, Louis, his watch, chain, diamond stud, Masonic emblems and all family pictures; to Minnie Watson Gilbert, substantially all of his housefurnishings; by a somewhat particular description, together with his undivided one-half interest in the stock and fixtures of a millinery business then carried on by himself and Minnie Watson Gilbert as partners, and also the sum of $300 to pay her for taking care of his dog “Trix” during its life; to the said Minnie Watson Gilbert, the residue of his estate. Minnie W. Gilbert and the Cumberland Trust Company were appointed executors, with power to sell his real estate.

The widow filed a caveat against the probate of the will, and on the hearing it was contended, in support of the caveat — first, that the testator was of unsound mind when the will was executed; and second, that he was unduly influenced by Mrs. Gilbert in the making of his will. The evidence shows that the first objection has no foundation. The testator undoubtedly was an excessive drinker of intoxicants during the last ten or fifteen years of his life, with the exception of about three months before his death, when the testimony shows that he practically abstained, and there is nothing in the evidence which shows that when this will was executed his mind was not what is usually called sound and disposing. All the written memoranda given to the attorney who drew the will were prepared by the testator by erasures and interlineations of a previous will, indicating the changes he desired made, so far as he could do so, and to' this were added oral instructions as to the disposition of certain property not in existence when the former, will was executed. The care and method exercised in doing this, and the testimony of the witnesses as to his mental capacity, convince me that the first objection has not been sustained.

The material facts upon which it is sought to sustain the charge of undue influence are as follows: In 1890 the appellant left the home of her husband, and has never since resided with him. They were married in the year 1870 and resided in Philadelphia for about twelve years thereafter, when they removed to a farm near Moorestown, in the hope, as the appellant testifies, that he would reform, he being at that time an excessive drinker; but, according to' her statement, this hope was not realized, for although he continued to attend to- his business he was habitually drunk and cruel to her, for which reason she left him, but after staying away three or four months returned. The date of the first separation does not appear, but I gather from the testimony that it was in the year 1886, and she returned because her husband constantly wrote to her, insisting on her coming back. The reasons she gives for leaving him finally, in 1890, appear in the testimony as follows:

“Q. What was the cause of your leaving him the last time?
“A. Cruel treatment. I couldn’t stand him.
“Q. You made up your mind to leave?
“A. I had to leave.
“Q. That was quitting, wasn’t it?
“A. Yes; I was afraid of my life; a man who would run around the house and put up a pistol.
“Q. Then you made up your mind to quit him as long as he acted the way he was acting?
“A. Yes; that was right.”

So far as the evidence in this case shows, the reason given by the wife for deserting her husband was his drunkenness and cruel treatment of her.

After his wife left him the testator met Mrs. Gilbert at Atlantic City, and I feel justified in finding that shortly after their meeting she began living with him as his mistress; from Atlantic City she went with him to the farm, and occupied nominally the position of housekeeper, and about six years previous to his death they removed to Millville, Cumberland county, and there entered into a millinery business as partners, which partnership continued until his death.

The husband, about two years after his wife left him, filed a bill against her for a divorce on the ground of desertion. She defended upon the ground of extreme cruelty, and by cross-bill asked and obtained a decree of divorce from bed and board, with a provision for her support and maintenance. There is not a particle of evidence in the cause, with perhaps a single exception, to which I shall hereafter refer, which shows any act or solicitation on the part of Mrs. Gilbert which might be interpreted as an attempt to unduly influence this testator to make her the object of his bounty, and we are asked to infer that because she was living- with the testator as his mistress she had thereby secured an influence over him, which she would naturally improperly exert to advance her interest. Such an. inference should not be drawn from this relationship without proof that Mrs. Gilbert “exerted her influence directly in the procuration of the will." Arnault v. Arnault, 52 N. J. Eq. (7 Dick.) 801. The probabilities are all in favor of the theory that this will expresses the purpose and intention of the testator. His wife had deserted him for no' other reason than his dissolute habits; she had compelled him to pay for her support while living in a state of separation, and the present .object of his bounty took her place. She did not displace her, because the wife had left her husband before Mr. Middleton had met Mrs. Gilbert, who stood by the deserted husband until his death, watching over him, caring for him, assisting in the conduct of his business, and remained faithful to him until his eyes were closed in death.

Two or three previous wills of this testator were offered in evidence, one dated October 10th, 1893, in which he provided for the payment of certain notes held against him by Mrs. Gilbert for money loaned. He gave his wife her dower in his real estate, and to Mrs. Gilbert his household furniture, and other things about the farm, and also, the farm itself. There is not the slightest evidence that Middleton was unduly influenced in the making of this will, beyond that to be inferred from his relations with Mrs. Gilbert. The next will bears date February 19th, 1903. In this will he provides for $500 to go to Benjamin, the son of John Lahner ; $500 to a charitable society in Philadelphia; $500 to the Bedford Street Mission of Philadelphia, and the interest of $500 to another beneficial society in Philadelphia; directs that $500 be paid to Mrs. Gilbert to take care of his horse “Sam” and his dog “Trix;” to his wife, Ellie, substantially same furniture as is given by the will probated, and in the same manner to Mrs. Gilbert the household goods, as described in the last will; to his brother, Louis, $300, family pictures and Masonic emblems; to Mrs. Gilbert $1,000; to his brother, Louis, and Mrs. Gilbert, the residue of his estate. It was this instrument that the testator used, by erasing and interlining, to accomplish the changes he desired in preparing the statement or directions from which the last will was prepared.

The next will bears date January 5th, 1904, and is precisely like the will probated with the exception that one of the executors, viz., the Burlington County Safe Deposit and Trust Company, was changed to the Cumberland Trust Company. It thus appears that from 1893 to the very, day of his death this testator had constantly in mind the purpose of making a provision for Mrs. Gilbert. The evidence shows that his estate has been considerably reduced between 1893 and the making of the last will. He had been compelled to mortgage his farm for $5,000 to pay the alimony adjudged to his wife as well as other debts, and while the amount of the estate has not been made to appear in this cause, enough is shown to warrant the conclusion that it is very small. It was testified to that the testator said that his brother, Louis, was omitted as a residuary legatee in the last will because he had tallied the matter over with him and told him what he intended to do, as the brother had plenty. The brother was sworn and testified that in October previous to his brother’s death he had a conversation with his brother, the material part of which appears in the testimony as follows:

“Q. Did you ask him on any of these occasions to leave you his Masonic emblems ?
“A. Yes, sir.
“Q. That is right, is it?
“A. That was up in the office.
“Q. How long before?
“A. October, the year before.
“Q. The October before?
“A. Yes, sir.
“Q. Did you tell him that was all you wanted?
“A. I asked him about that diamond pin.
“Q. Was that a Masonic emblem?
“A. ISfo; just a diamond pin; he says, ‘All right, if you want it you can have it, but,’ he says, ‘I intended to give that to Mrs. Gilbert.’ ”

I am satisfied from all of the evidence in the cause, from the conversation which the testator had with his brother with reference to the disposition of his property, and from the constant and unchanging purpose to provide for Mrs. Gilbert, manifested by the contents of these different mils, that Mrs. Gilbert did not unduly influence the testator, and that the will admitted to probate contains his desires as to the disposition of his property, free from any unlawful bias.

So much stress was laid by the appellant, at the argument, upon the testimony of Susana Roun, as disclosing undue influence, that it is only fair I should refer to it. She claims to have been at Mr. Middleton’s house just after the time the will of January 5th, 1904, was executed, and testified that Mrs. Gilbert said to her that Benjamin had made his will; that he had “made it to that thing, and herself, the balance what was left;” that she'was listening at the door when the lawyer was up there, and that when he came out she said to him “that won’t stand law,” and that the lawyer told her to be still. I am not disposed to credit this testimony. The many contradictions and inconsistencies appearing in the testimony of this witness entitles her to very little credit. The lawyer was permitted, without objection, to testify that no such thing occurred. Mrs. Gilbert denies making any such statement, and it is extremely improbable that Mrs. Gilbert, if sire had procured the making of a will which was not the uninfluenced will of the testator, would have told the witness that it would not “stand law.” But assuming that Mrs. Gilbert said exactly what she is charged with having said, taken in connection with what the witness next testified to, viz., that the will did not suit Mrs. Gilbert, and that she was so incensed that she turned over the care of the testator to the witness, it would not prove that she had unduLy influenced the testator to do what she wanted done; but, on the contrary, that the influence which she had undertaken to exert had been unavailing, and that the testator had acted contrary to her wishes.

The decree of the orphans court admitting this will to probate should be sustained.


author: Gummere, Chief-Justice.

text:
    Charles M. Headley, appellant, v. Martha B. Leavitt, respondent.
    [Argued November 22d, 1904.
    Decided March 23d, 1905.]
    On failure of a business in which complainant and defendant’s son were engaged, defendant agreed to pay certain outstanding notes of the concern if complainant would pay the others. Defendant paid the notes, as agreed, and afterwards sued complainant as endorser, and obtained a judgment, because complainant had not paid, but merely secured, the notes which he was to pay. Complainant afterward paid the secured notes. — Held, that complainant was not entitled to perpetually enjoin defendant from enforcing the judgment, but was entitled to restrain enforcement until defendant consented to a retrial of the action at law on the notes, and further consented that appellant might set up the alleged contract as a defence.

      On appeal from a final decree advised by Vice-Chancellor Reed, whose opinion is reported in 66 N. J. Eq. (21 Diclc.) 9If.

      Mr. Linton Satterthwait, for the appellant.

      Mr. John H. Backes, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The bill in this cause was filed by Headley, the appellant, to restrain Mrs. Leavitt, the original defendant in the suit, from taking proceedings to enforce a judgment which she had recovered against him in the supreme court of this state. The facts set out in his bill, and upon which the appellant seeks to obtain the relief asked for by him, are fully recited in the opinion of this court, delivered by Justice Hendrickson, on an appeal taken from an order of the court of chancery refusing a preliminary injunction. Headley v. Leavitt, 65 N. J. Eq. (20 Dick.) 748. A reference to that opinion and a summary of the facts will be sufficient in disposing of the present appeal. Briefly stated, the case made by the bill was this: The appellant and, one William H. Leavitt, a son of Mrs. Martha B. Leavitt, organized a corporation known as the Headley-Leavitt Company. The stock of the concern was entirely held by the appellant, and by Leavitt and his wife. Certain notes of the company were endorsed by Headley, Mrs. Leavitt and others, for the accommodation of tire company, and were discounted either by the Trenton Banking Company or the Mechanics National Bank of Trenton. While the notes were still outstanding the company became insolvent and went into the hands of a receiver. The insolvency was caused by the' misappropriation of the corporate funds by William H. Leavitt. In this situation of affairs a conference was held between the appellant and Mrs. Leavitt, at which it was agreed between them that Mrs. Leavitt should take up and relieve the appellant from liability upon the notes held by the Mechanics National Bank, and that the appellant should take up and relieve Mrs. Leavitt from liability upon the notes held by the Trenton Banking Company. Mrs. Leavitt paid off the notes which she had assumed. The appellant arranged with the Trenton Banking Company that it should look to him primarily for payment of the notes held by it, and for the securing of their payment executed a mortgage in its favor upon his real estate. Afterwards Mrs. Leavitt brought an action at law against the appellant upon certain of the notes which she had paid, and upon which the appellant stood as an endorser prior to her. At the trial the appellant set up, by way of accord and satisfaction, the agreement above recited and the acts of the parties under it. It was held that the defence failed because the appellant had not actually paid the notes held by the Trenton Banking Company in accordance with the terms of his contract. Immediately after the trial the appellant completed the performance of his part of the contract by paying off these notes and releasing all the endorsers thereon from liability.

Upon the final hearing of this cause none of the facts set out in the bill of complaint were controverted by the defendant, except the making'of the contract between Mrs. Leavitt and the appellant relating to the tailing care by them of the outstanding notes of the Headley-Leavitt Company. Mrs. Leavitt died before the hearing, and her executor was substituted as defendant. Her death disqualified the appellant as a witness and he was compelled, therefore, to rely upon the testimony of the receiver of the corporation (in whose presence the agreement was said to have been made), and the subsequent conduct of Mrs. Leavitt and 'himself, to prove it. The testimony of the receiver is succinctly stated by the vice-chancellor in his opinion, as follows: “Shortly after he was appointed receiver he was sitting in his office at the rear of the store of the insolvent . company, when Mrs. Leavitt and Mr. Headley came in. They were engaged in a conversation concerning the affairs of the company, its failure^ &c. He says that Mr. Headley asked for the bill book, and then got it himself from the safe; that Mr. Headley placed the book on the top or at the back of a roller desk, and one of the parties stood at the end and the other at the back of the desk; that they went over the notes in the several banks, Mr. Headley reading them off; that after they had got through the list Mr. Headley got some paper and a list was made up; that they went over the notes, Mr. Headley saying, T will take care of these notes/ and Mrs. Leavitt, T will take care of these/ that one of them said, Now, I will take care of this list if you will take care of the other list, and it will relieve all the parties of any responsibility/ which remark was assented toy that Mrs. Leavitt, after some remarks about the habits of her son, left the office; that after she went out he saw the list which Mr. Pleadley had retained, and the notes thereon were those in the Trenton Banking Company; he did not see the list which Mrs. Leavitt took away; he only saw the paper.” The vice-chancellor concluded that this testimony of the receiver, coupled with the subsequent action of Mrs. Leavitt in taking up the notes which were held by the Mechanics bank, and afterward (as the case shows) presenting a claim to the receiver as the holder thereof, and the conduct of the appellant in securing to the Trenton Banking Company the payment of the notes held bjr it, and then (as the case shows) presenting to the receiver a claim as their holder, did not justify the conclusion that a contract of the purport and effect set out in the bill of complaint had been entered into -by the parties. He therefore advised a decree dismissing the bill.

We are unable to agree with the learned vice-chancellor in this conclusion. The testimony of the receiver makes it clear that an agreement was entered into between Mrs. Leavitt and the appellant at the time spoken of by him, by the terms of which all of the notes of the Heaclley-Leavitt Company were to be taken care of by one or the other of them; that two separate lists were made out, one containing the notes which Mrs. Leavitt was to take care of and the other the notes which the appellant was to look out for; that each agreed with the other to relieve all other parties of any .responsibility upon the notes assumed by them, respectively, and that the appellant retained the list containing the notes held by the Trenton Banking Company and Mrs. Leavitt took away the list containing the other notes. The notes not held by the Trenton Banking Company were held by the Mechanics bank, and the conduct of Mrs. Leavitt in afterward going to that bank and paying off the notes held by it justifies the presumption that these were the notes which she agreed to take care of and relieve other parties from liability upon. No evidence on the part of the defendant was offered to overcome this presumption, and the appellant therefore had at least made out a prima facie case when the case was submitted for decision. That he was entitled to the relief prayed for in his bill upon proving the facts set out therein, was decided by this court when the case was here on the appeal from the order refusing an injunction. Headley v. Leavitt, supra. We did not then intimate, however, nor do we now consider that the appellant is entitled to an injunction perpetually restraining the executor of Mrs. Leavitt from enforcing the judgment against him. The prayer of the bill was that

“the said Martha B. Leavitt may be perpetually enjoined from proceeding further upon said action at law and from executing her said judgment against your orator, or from selling or in anywise disposing of any lands or property of your orator, under or by virtue of any execution issued out of the supreme court of New Jersey under said judgment; or, if the court should deem it more consonant with the exigencies of the case, that your orator may have an order or injunction restraining the said Martha B. Leavitt from executing her said judgment, or from selling or disposing of any of your orator’s lands or property thereunder as aforesaid, until the said Martha B. Leavitt shall consent to a retrial of the said action in the court of law in such manner that your orator may have a defence to said action upon the merits of the case, on the issue of the making of said contract with the said Martha B. Leavitt and its performance by your orator.”

The subject of the litigation which resulted in the judgment was one which was cognizable by a legal, rather than an equitable, tribunal. The contract which the appellant sought to set up as a defence to the action in the supreme court would, if it had been executed by him, have constituted a legal, and not an equitable, defence to that action. Subsequent performance of the contract on his part gives him no right to have the forum of the litigation changed to a court of equity, and to deprive the respondent of the determination of a jury upon the question of the existence or non-existence of such contract. The relief asked for by him in the alternate prayer hereinabove recited is all that should be granted to him.

Tlie decree appealed from should be reversed and a decree entered in the court of chancery restraining the respondent from proceeding* to enforce the judgment, unless and until he consents to a retrial of the action in tire supreme court, and further consents that the appellant on such retrial may set up the alleged contract as a defence by way of accord and satisfaction.

For affirmance — None.

For reversal — The Chief-Justice, Dixon, Garrison, Fort, Garretson, Swayze, Bogert, Vredenburgh, Vroom, Green —10.


text:
    Frederick Hemsley, appellant, v. Marlborough House Company, respondent.
    [Argued November 25th and 28th, 1904.
    Decided June 19th, 1905.]
    1. D., the owner of two lots upon opposite sides of a public street, conveyed one of them to IT. The conveyance contained a restrictive covenant prohibiting- the erection of any building or improvement thereon, outside of certain prescribed limits, without the consent of D. or her heirs.— Held, that the restrictive covenant was inserted in the conveyance for the benefit of the lot retained by D. as an appurtenance thereto. Held further, that by the conveyance of the retained lot, the right to enforce the restrictions passed to the grantees of that lot.
    2. A grant by- a number of property owners to a municipality of the right to construct a boardwalk or esplanade across the properties of the several grantors, the right being reserved to the grantors to connect their respective buildings with such boardwalk, has no effect, either by way of release or otherwise, upon the rights of the grantors, inter sese.

    3. A purchaser of lands has constructive notice of restrictions limiting the right to erect buildings thereon when they appear in the direct chain of his title, and is chargeable with knowledge of the purpose for which they were inserted in the deed1 in which they are contained.

      On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 63 N. J. Eq. {20 Dick.) 167.

      Mr. Gilbert Collins and Mr. Joseph II. Gaskill, for the appellant.

      Mr. Richard Lindabury and Mr. Clarence L. Cole, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

On the 15th of October, 1883, one Mary Disston conveyed to the Female Academy of the Sacred Heart a piece of property located upon the westerly side of Park place, in the city of Atlantic City. The deed of conveyance contained several restrictive covenants, one of which (a covenant restricting the erection of any building except a dwelling-house upon the premises) has already been before the court of chancery and this court for construction. Hemsley v. Marlborough Hotel Co., 62 N. J. Eq. (17 Dick.) 164; S. C. on appeal, 63 N. J. Eq. (18 Dick.) 804. The present bill is filed to compel the taking down by the defendant company (the present owner) of certain portions of its hotel building and the removal of a boardwalk constructed by it upon the premises, because in building these structures it violated two other of these restrictive covenants, which are in the following words, viz.:

“That no building or improvement of any kind shall be erected on the said plot of ground, more than two hundred feet, without the consent of Mary Disston or her heirs, beyond the southernmost boundary line of lot of Amelia R. Sparks, looking toward the ocean, nor within a space of fifteen feet from the westerly side of said Park place.”

It appears from the proofs submitted that at tire time of making this eonvej'unce Mary Disston was also the owner of a property upon the easterly side of Park place known as the “Disston Cottage” property, a portion of which was directly opposite the northerly part of the plot conveyed by her to the Female acadeniy, and that subsequently, and after the death of Mary Disston, this latter property was conveyed to the complainant by her executor and trustee. It further appears that the defendant company, the present owners of the Female academy plot, by mesne conveyances from that society, have erected a hotel upon it; that certain bay-windows of this building project somewhat (from one to two feet) over a line drawn parallel with and fifteen feet west of the westerly line of Park place; and that a portion of the easterly wall of the said building is also slightly over this line. It was further shown that on the south side of the building the piers supporting the piazza extend at some points about two feet beyond a line two hundred feet south of the Amelia B. Sparks line, and that the cornice of the piazza also extends over that line some three or four inches. In addition to these facts, it was further shown that the defendant has erected upon that part of this property lying south of a line two hundred feet south of the Sparks line an elevated boardwalk, leading from the southerly piazza of its hotel to the Atlantic City esplanade, or “boardwalk/"

The complainant’s contention is that these erections are in violation of. the restrictive covenants above set out, and that he, as the present owner of the “Disston Cottage” property, is entitled to the relief which he asks by this proceeding. He rests his right to that relief upon several grounds, only one of which need be referred to in determining this case; namely, that the covenants, the violations of which he complains, were put in the deed made by Mary Disston to the Female academy, not for her personal benefit, but for the benefit of the “Disston Cottage” property now owned by him.

The learned vice-chancellor who heard the case below advised a decree dismissing the complainant’s bid. He seems to have considered that the clause “without the consent of Mary Disston or her heirs” was applicable only to the restriction which prohibited the erection of any building or improvement more than two hundred feet south of the Sparks line, and not to that which prohibited any such erection within fifteen feet of the westerly line of Park place. For this reason he considered that, so far as the latter restriction was concerned, the case was ruled by the earlier decision in the litigation between these parties already adverted to. He further considered that the restriction against building more than two hundred feet south of the Sparks line was inserted for the personal interest of Mary Diss-ton and her heirs, not for the benefit of the “Disston Cottage” lot; that it did not become attached to that property and did not pass to the purchaser of that land.

We are not able to concur in the view expressed by tire vice-chancellor as to the limitation providing for the consent of Mary Disston or her heirs. The natural meaning' of the provision containing the restrictions seems to us to be that no building or improvement of any kind shall be erected upon the plot conveyed more than two hundred feet south of the Sparks line, nor within fifteen feet of Park place, without the consent of Mary Disston or her heirs. The determination of the whole case, therefore, must turn upon the effect to be given to this consent clause — that is, whether it was inserted in the deed for the benefit of the “Disston Cottage” property, or merely for the personal benefit of Mary Disston and her heirs. We dissent from the conclusion of the learned vice-chancellor that the right reserved is a personal one. The reservation to' “heirs” implies an heritable interest, and an heritable interest is one which is attached to the ownership of land. The only land of Mrs. Disston for the benefit of which the clause under consideration could have been inserted, so far as the proofs disclose, was the “Disston Cottage” property. That it is useful and beneficial to that property, providing for it better light, air and prospect, is obvious; .and, therefore, although the clause does not say, in terms, that the right of consent is reserved to Mrs. Disston and her heirs as owners of this property, it seems to us that this is the necessary implication. To disregard the effect usually attributed to the word1 “heirs,” when used as it is in the restriction before us, and to hold that the right therein reserved is personal to Mrs. Disston and her heirs, is to conclude that it was the intention of the parties to the conveyance that although Mrs. Disston might part with the “Disston Cottage” property tire day after the making of the conveyance now under consideration, nevertheless the right to enforce these restrictions against the owners of -the defendant’s property should remain to her as long as she should live and to her heirs afterwards until the death of the last survivor of them. The fact that there could be no object in such a stipulation condemns such a construction of the reservation. Jones Real Prop. § 775; McLean v. McKay, L. R. 5 P. C. App. Cas. 327; Peck v. Conway, 119 Mass. 546.

Holding, as we do, that the right reserved by Mrs. Disston was, as owner of, and for the benefit of, the “Disston Cottage” property, it follows that this right is an appurtenant to that property, and passed with it by the conveyance made to the complainant by her executor and trustee. Perry v. Pennsylvania Railroad Co., 55 N. J. Law (26 Vr.) 178; Peck v. Conway, supra.

It is contended on behalf of tire defendant that if by the true construction of the deed from Mrs. Disston to the Female academy the restrictive covenants which we have discussed inure to the benefit of the grantees of the “Disston Cottage” property, the requisite consent of the complainant was given to the construction of the boardwalk south of the two hundred feet limit by the execution, by certain property owners, including the complainant and the grantors of the defendant company of a conveyance to the city of Atlantic City, which was offered in evidence. -By the terms of this conveyance the city was authorized to construct a “boardwalk” or esplanade along the ocean front across the property of the grantors. It contained a covenant that the grantors therein should have, at all times, “the right to connect their, and each of their, buildings with the said ‘boardwalk’ (or esplanade) on the northwest side thereof.” But, as we read this covenant, it merely reserves to each grantor a right to make the connection named without further consent from the city; it has no effect, by way of release or otherwise, among the grantors inter sese.

Another contention advanced by counsel for the defendant is that the defendant company had no knowledge, at the time it purchased the Female academy tract, that these restrictive covenants in the deed to that society had been inserted in it for the benefit of the “Disston Cottage” propei^r, and therefore is not affected by them. The answer to this contention seems to us to bé that knowledge of this fact was not necessary in order to bind the defendant company. It had notice of the existence of these restrictions, for they appear in the direct chain of its title, and, having notice, it is chargeable with the pertinent facts which inquiry would have revealed to it — in other words, with the purpose for which these restrictions were inserted in the deed.

But although we reach the conclusion that the right to enforce these restrictive covenants against the owner of the defendant’s property passed to the complainant as the grantee of the “Diss-ton Cottage” plot, we do not consider that it would be equitable, at this time, to grant a mandatory injunction against the defendant company requiring it to tear down so much of its hotel building as extends beyond the prescribed lines. Apparently the violations of the restrictive covenants in this respect were accidental; no objection to this feature of its construction seems to have been made by the complainant during the process of its erection; the injury inflicted upon the complainant’s-property by these infractions of the covenants is almost infinitesimal, and the loss which would be entailed upon the defendant by tearing away these portions of its building would be very considerable.

The same conditions, however, do not exist with relation- to the boardwalk connecting the defendant’s hotel with the Atlantic City esplanade. The structure is a material encroachment upon the restricted property and we cannot say that it is not a substantial detriment to the complainant’s premises. So- far as this structure is concerned, therefore?, the complainant is entitled to the relief which he seeks.

The -decree below should be reversed and a decree entered in conformity with the views herein expressed.

For affirmance — None.

For reversal — The Chiee-Justioe, Dixon, Garrison, Eort, Garretson, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Green, Gray — 12.


text:
    J. H. Mohlman Company v. The American Grocery Company.
    [Argued November 28th, 1004.
    Decided March 20th, 1905.]
    An injury having been received by a servant of a corporation, another employe took the injured servant to a physician, and during the treatment the physician determined that the services of a dentist were necessary ; and the physician, on asking the corporation’s manager who would pay the dental bill, was referred to a casualty company which had insured the corporation against liability for accidents to its employes.' — Held, that the fact that the manager did not deny responsibility on the part of the corporation for the medical treatment rendered, and that he referred the physician to the casualty company, was not a ratification of the physician’s employment, and the corporation was not liable to him.
    On appeal by receiver from an order advised by Vice-Chancellor Stevenson, allowing claim of Dr. A. Nelson.

      Mr. George G. Tennant, for the appellant.

      Mr. Jarvis N. Atkinson, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The bill in this case was filed by the complainant to have the defendant, the American Grocery Companj’, declared insolvent. After hearing, a decree of insolvency was entered and a receiver appointed. Among the claims presented to the receiver was one by Dr. A. Nelson, for medical services rendered by him to one Charles Landhagen, a boy whu had been in the employ of the grocery company. The claim having been rejected by the receiver, Dr. Nelson appealed to the chancellor, and the hearing of this appeal by one of the vice-chancellors resulted. in the setting aside of the action of the receiver and the allowance of the doctor’s claim to the extent of $253. From the order allowing this claim the receiver now appeals to this court.

The following facts appeared from the proofs submitted to the vice-chancellor: Landhagen, the boy to whom the physician’s services had been rendered, was kicked by one of the company’s horses, while engaged at work in their stable, and received a severe injury to his jaw. He was immediately taken by another employe of the company (one Schriever) to the doctor’s office for treatment. Schriever, upon being asked by the doctor who would be responsible for his bill, replied that the American Grocery Company would be good for it.. During the course of the treatment, which extended over a period of more than two months, it became necessary, in the judgment of the doctor, tq have an intradental plate made for the boy. This work required the services of an expert dentist, and the physician so advised a Mr. O’Brien, another employe of the grocery company, who was in the habit of accompanying Landhagen on his visits to the doctor’s office. At the same time that tire doctor advised O’Brien of the necessity of this' plate he asked him who would pay the dentist’s bill, and the latter referred him to the grocery company’s cashier. The doctor then called upon the cashier, who, in turn, applied to the company’s manager for instructions, and was told by the manager to refer the doctor to the Fidelity and Casualty Company, a corporation which had insured the grocery company against liability for accidents to its employes. The cashier obeyed this instruction of the manager, and the doctor then called up the casualty company on the telephone, and was informed by the agent of the casualty company who answered his call not to-go ahead with the case until that company, had looked into the matter, and that if he sent the boy to the dentist, and incurred any bill, he would have to pay it out of his own pocket. No other communications were had by the doctor with the employes or agents of the grocery company relating to compensation for his services, so far as the proofs in the case show.

It was not contended that the statement made by Schriever that the American Grocery Company would be good for the physician’s bill imposed any liability upon that corporation; in fact, it was conceded by counsel, and held by the vice-chancellor, that he had no authority to bind it, and that there was nothing in the case from which it could be concluded that Schriever’s statement had been communicated to the grocery company and ratified or acquiesced in by it. But the vice-chancellor considered that liability on the part of the grocery company to pay the physicians’s bill was shown by the fact that when its manager was advised as to the necessity of having an intradental plate made for the boy, he, instead of denying any responsibility on the part of the company for the boy’s injuries, or any liability to pay for the medical and surgical treatment rendered necessary thereby, referred the physician to the Fidelity and Casualty Company. The vice-chancellor was of opinion that this failure to repudiate liability, coupled with the reference of the matter to the casualty company, was “the most positive affirmation of the liability of the assured that could possibly be made;” that it was “a ratification of the retainer of the doctor and notified him that he was contracting an obligation against the corporation from day to day while rendering those services” to the boy.

We do not think the deduction drawn by the vice-chancellor from the failure of the grocery company’s manager to repudiate liability on its part, and his referring the doctor to the casualty company, is justified.. The question of the company’s liability was one with which the manager was not concerned. He knew that, if it existed, the company was protected against loss by reason thereof through its contract with the casualty company. He properly concluded, therefore, that as the casualty company was ultimately liable, if liability existed at all, for the expenses incurred on account of the boy’s injuries, that company, and not the grocery company, was tire one to determine whether or not the proposed expenditure should be made. His reference of the physician to the casualty compan3r was tantamount to saying: “We have no responsibility in this matter; if the boy has any claim, the casualty company must pay it; they, therefore, and not the American Grocery Company, are the ones by whom the question of incurring this proposed expense must be passed upon.” Instead of being an affirmation of the grocery company’s liability, and a notification-, to the physician that he was contracting an obligation against that company by treating the boy for his injuries, it was rather a notification that the doctor must look to the casualty company, and not to the grocery com•pany, for compensation for his services.

Finding nothing in the evidence submitted to the court below from which a promise on the part of the grocery company to pay the claimant for his services can fairly be implied, we conclude that the order appealed from should be reversed.

For affirmance — None.

For reversal — The Chief-Justice, Dixon, Garrison, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green — 10.