text:
    Julia G. Brooks, Anna M. De Motte and Mary E. Justin, executrices of the last will of Gertrude A. Van Horne, deceased, v. Henry Kip and William W. Scott, executors of the will of John I. Ackerman, deceased, et al.
    A, by his will, devised certain of his lands to his son B, and certain other of his lands to his son C, and charged his sons, respectively, with the payment of moneys to his wife and daughters. The will contained this provision : “ If they [referring to the sons] should die, or either of them, without child or children, * '* * the real estate given to them or either of them shall go to my other children, share and share alike.” — Held, (1) that the sons each took a conditional fee in his holding, with a limitation over to the testator’s “other children” by way of executory devise; (2) that among the “other children” of the testator intended was included one of the sons who died leaving- a child; (3) that the children of the testator who survived him took contingent interests in severalty, which were transmissible by descent and devisable by will.

      On bill, answer, replication and proofs.
    The following facts are established by admissions and undisputed proofs:
    John A. Ackerman, of the township of Acquackanonck, in Passaic county, in September, 1839, for the consideration of $3,800, purchased from Marcelis Parks twenty-five acres of land, now in the city of Jersey City, which Parks, two months before then, had bought at public sale for $3,350, and in April, 1841, he, Ackerman, conveyed the same to his son, Albert Ackerman, by deed, which purported to be made in consideration of $1,400, the payment whereof the father acknowledged, subject to a mortgage for $1,675, which mortgage appears to have been paid and satisfied in the year 1848.
    In July, 1850, John A. Ackerman died testate, leaving him surviving his widow, Matilda, and four children — two sons, Albert, born September 21st, 1814, and John I., born March 17th, 1823; and two daughters, Gertrude, married to one 'Van Horne, and Catharine Maria, married to one Kip. His will, bearing date on the 22d day of August, 1849, after ordering the payment of his debts and funeral expenses, is in this language:
    “ Item, 2nd. It is my will and. I do give unto my son John the house and outhouses where I now live together with fifteen acres of ground bounded on the West by lands of Jacob Jno.' Vreeland on the east so as to take in the dock South by the Passaic Biver and thence to run so far north as to make the fifteen acres. Also two acres of Cedar swamp and the whole of my woodland lying in Hudson County containing about seventeen acres together with my horses, cows, oxen and farming utensils except one horse and cow which are to be kept on my farm for the use of my wife during her widowhood. I also give unto my son John my notes, bonds, obligations and money if any after my debts are paid and it is my further will that my son John pay my daughter Ann wife of Albert Ackerman, the sum of six hundred Dollars in two equal payments one-lialf in one year after my decease and the balance in two years after my decease without interest.

      “ Item 3d. It is my will and I do give unto my son Albert my salt meadow at Newark containing about seven acres and I do order that my son Albert pay my daughter Ann, wife of Albert Ackerman, Six hundred dollars, three hundred dollars in one year after my decease and the balance in two years after my decease without interest.

      “ Item 4th. It is my will and I do give unto my sons John and Albert all the rest, residue and remainder of my real estate whatsoever and wheresoever not before bequeathed to be divided between them share and share alike and it is my further will and I do order that they pay my two daughters Gertrude, wife of Van Horn, and Catharine Maria, wife of Kip, each fifty dollars one year after my decease.
    ' “ Item 5th. It is my will and I do give unto my wife Matilda one hundred, and twenty dollars per year during her widahood in lieu of her dower and I bind my two sons John and Albert to pay her the said sum of one hundred and twenty dollars yearly and every year as long as she remains my widow if she exeeps the same in lieu of her dower also her choice of one room on the first floor in my house and two bead rooms in the garret together with my furniture such as beadslids, beads, beading, chairs, table, looking-glasses &c., also the use of the kitchen for washing, baking, &c. as she may need it during her widahood also the use of one horse and one cow to be kept on the farm as above mentioned.

      “Item 6th. It is my will and I do order that the real estate given to John and Albert if they should die or either of them leaving no child or children as lawful heirs, then the said real estate so before bequeathed to them or either of them (or the value thereof) shall decend to my other children share and share alike, that is to say it is not my intention by this item that my said sons John and Albert or either of them shall not have the privilege and right to sell the real estate or any part thereof at a fair valuation if they or either of them wish so to do but it is my will that the money arising from such sale or sales (exclusive of the Int) shall be by them or either of them put on bond and mortgage or real estate purchased therewith or safely invested so that if they or either of them should die without lawful heir as above mentioned then the same to decend to my other children share and share alike.
    “ Item 7th. And lastly I do hereby appoint my said sons John and Albert executors of this my testament and last will hereby revoking all former wills by me made and executed.”
    The testator’s daughter, Ami Ackerman, died after the will was made and before the 4th of May, 1850, at which date the testator made a codicil to his will which provided that his son John should pay the $600, which the will directed him to pay to his sister Ann, “ to,” using the language of the codicil,
    “my other two daughters, viz., Gertrude, wife of Van Horne, and Catharine Maria, wife of Kip, share and share alike and in the same manner that he was to pay to Ann,”
    and that the testator’s son Albert should pay the $600 which, by the will, he was directed to pay to Ann, “ to,” resuming the language of the codicil,

      “ my other two daughters, viz., Gertrude and Catharine Maria as aforesaid, in manner as directed in my will; and I make and publish this my codicil as explanatory of the legacy in my last will directed to be given to my daughter Ann now deceased, which is now, by my codicil, made void, and the same to be given to my other two daughters as is hereinbefore directed.”
    The testator’s wife received that which the will gave to her, and the sons, John and Albert, paid her the $120 annuity till she died. Albert duly paid each of his sisters, Gertrude and Catharine, $625 and John paid them each a similar amount.
    In 1852, Albert and John, by deed, partitioned between themselves the residuary real estate devised to them by the fourth paragraph of their father’s will. That real estate consisted of about one hundred and seventy acres of land.
    Albert died testate, in March, 1876, leaving him surviving his widow, Helen,- and one child, Jane, the wife of John R. Vreeland. By his will he bequeathed and devised his residuary estate, which would include any devisable interest he might have in the property of his brother John I., to his widow, who, in July, 1884, while yet a widow, died intestate, leaving Jane Vreeland, her only child, surviving. Jane Vreeland survived her husband, and died in 1895, leaving an only child, the defendant Albert J. Vreeland.
    Gertrude Van Horne died on the 12th of September, 1887, testate, leaving her surviving two sons, Cornelius and Garret, and three daughters (the complainants herein), Anna, married to one De Motte; Mary, married to one Justin, and Julia, married to one Brooks. By her will she bequeathed and devised her entire estate to her three daughters, and made them the executrices of the will.
    John I. died on the 1st of September, 1892, without issue. Previous to his death he sold all his real estate, realizing therefor upwards of $20,000, which he mingled with moneys he had from other sources, and did not distinctly invest as the sixth paragraph of the will contemplated he should do. At his death he was seized and possessed of a house and lot in Jersey City, and three houses and lots in Passaic, and real estate known as the “Acquackanonck lot ” and “ Hock lot,” and also was possessed of personal estate valued at between five and six thousand dollars, in the acquirement of which properties he used portions of the proceeds of the sale of the real estate devised to him by his father. He left a will by which he bequeathed all his personal estate to his wife, Clara, and devised to her, for her life, part of his land. He devised to the heirs of his sisters Gertrude and Catharine, in equal shares, the residue of his estate. His entire estate is worth less than the amount he realized from the sale of the real estate which was devised to him by his father’s will. His widow survives him.
    Catharine Kip died in August, 1895, after the commencement of this suit. She left a will by which she bequeathed and devised her entire estate to Euphemia Kip, whom she also made executrix of her will. The suit has been revived against Euphemia Kip, as a defendant, in the place of Catharine Kip, deceased.
    The object of the bill is to have it decreed that Albert J. Vreeland has no title or interest in the proceeds of the sale of the lands which John Ackerman had from his father, in virtue of the sixth paragraph of the will of John A. Ackerman, and to secure for the complainants and Euphemia Kip the amount of the proceeds of such sale.
    The complainants claim that the entire estate should go to them as devisees of their mother, and to Euphemia Kip as the devisee of their aunt, Catharine Kip, and that neither their brothers nor their cousin, Albert J. Vreeland, are entitled to any part thereof. By some arrangement between the complainants and Euphemia Kip and the executors of the will of John I. Ackerman, the widow of John I. Ackerman is to have, for her life, the provision made for her by her husband’s will, and the complainants and Euphemia Kip will take the residue of his estate. If they are successful in their contention that Albert J. Vreeland and their brothers are without interest as stated, their arrangement will terminate further litigation.
    The only answer in the case has been filed by Albert J. Vreeland, who claims that he is entitled to an equal third of the recovery to be had from the estate of John I. Ackerman, and, by way of cross-bill, asks for the same relief against the estate of John I. Ackerman which the complainants pray for.

      Mr. Charles H. Hartshorne, for the complainant?.

      Mr. William Brinkerhoff, for Albert J. "Vreeland.
   The Chancellor.

The principal question to be determined at this time is whether Albert J. "Vreeland has any interest in the proceeds of the sale of the lands which John I. Ackerman took by his father’s will.

The quantity or duration of the estate which John I. Ackerman took in the realty devised to him by the second and fourth paragraphs of his father’s will, is not expressly defined in those paragraphs. At the common law, such a devise, standing by itself, would give only a life estate. By force of our statute of 1784 (Rev. p. 300 § 13), the devise, standing by itself — that is, as stated in paragraphs 2 and 4, in absence of paragraph 6— would give a fee, but as the sixth paragraph makes further devise of the property at the death of John, the case is not within the statute. Yet it appears that both the second, fourth and fifth paragraphs impose a charge upon John personally. By the second paragraph he is required to pay his sister Ann $600, the receipt of which payment is transferred by the codicil to the sisters Gertrude and Catharine; by the fourth paragraph he and his brother Albert are required to pay Gertrude and Catharine each $50, and by the fifth paragraph he is charged with the pay-, ment of an annuity to his lather’s widow. It is a well-settled rule of construction “that,” using the language of Mr. Justice Depue in Groves v. Cox, 11 Vr. 40, 43, “ a devise indeterminate in its terms and without words of limitation, which, standing alone, would create only an estate for life, will be enlarged to a fee by the imposition of a charge upon the person of the devisee or on the quantum of the interest devised to him, but not if the premises are merely devised subject to the charge.” Hawk. Wills 134. The charges imposed upon John as stated, I think, bring the devise to him within this rule.

Thus, when we come to the sixth paragraph of the will, to consider the effect of the devise over there provided for, John is, by implication, clothed with a fee-simple absolute in the lands devised to him. Rut this implication is overcome, in .the sixth paragraph, by the provision that if John should die without leaving a child or children who might lawfully inherit from him — “leaving no child or children as lawful heirs” — then the real estate was to “descend,” meaning, in the connection in which it is used, “go to” (Ballentine v. Wood, 15 Stew. Eq. 558; Den v. Blackwell, 3 Gr. 389) his other children.

The devise over is not upon the death, of John without issue, but upon his death without “ leaving * * * child or children.” The import of this expression is not failure of issue at some indefinite future period, but dying without children at the death of John, a definite event. Fairchild v. Crane, 2 Beas. 105, 107; Brokaw v. Peterson, 2 McCart. 194; 2 Jarm. Wills (R. & T. ed.) 146, 768; 2 Washb. Real Prop. (5th ed.) 763, note 4; Kent Com. 278. The effect of the provision upon the estate of John is that it was thereby made a fee-simple conditional, with a limitation over by way of executory devise to the testator’s “other children.” Den v. Allaire, Spenc. 6; Groves v. Cox, supra; Wilson v. Wilson, 1 Dick. Ch. Rep. 321.

It is immaterial to here consider whether the term “ my other children ” referred to those who answered that description at the time of making the will, or to those who answered it when the testator died, for the will was republished by the codicil after the death of Ann and is to be considered as then made, and no child of the testator died after this second publication of the will and before the death of the testator. The term “ my other children ” does not refer, as “ my surviving children ” would, to the time of the happening of the contingency, but, at the furthest, to those living at the death of the testator (Den v. Manners, Spenc. 142; Seddel v. Wills, Spenc. 223; Winslow v. Goodwin, 7 Metc. 363), who, by force of the succeeding words “ share and share alike,” or even without them, took in severalty (Ballantine v. Wood, supra; Winslow v. Goodwin, supra; Emerson v. Cutler, 14 Pick. 108) contingent interests which were transmissible by descent and devisable by will. 1 Redf. Wills 391; Winslow v. Goodwin, supra; Thornton v. Roberts, 3 Stew. Eq. 473, 476, and cases cited; cases in reporter’s note, 6 Stew. Eq. 51.

The question which was really mooted at the argument is whether, within the term my other children,” the testator intended to include the survivor of the two brothers, Albert and John.

The complainants contend that it was not intended to include either brother. They insist that the conveyance in 1841 of the Parks property by John A. Ackerman to his son Albert was in reality an advancement which was equalized to John I. Ackerman by the devise of the homestead, and that it was the purpose of the testator that his sons, who might perpetuate the family name, should have all his estate in equal shares and, after the fashion among the Dutch farmers in those days, that his daughters should be put off with a small gift of money; but that in default of either son leaving issue at his death to perpetuate the name, the share of that son should go to the daughters. They argue — -first, that it must be presumed that the testator wished to deal equally with his children and that it will best subserve equality, in view of the provision for Albert and the small portions of the daughters, to construe the words “ my other children,” as used in the sixth paragraph, to mean his daughters; second, that the natural and grammatical reference of the words other children,” in the connection in which they are used, is to the testator’s daughters; and third, any other construction than that insisted upon would be inconsistent with the language used, that the “ other children ” are to “ share and share alike,” for his obvious intent is that his son is to take only a conditional fee, which is not the absolute fee that his sisters are to have.

First. I cannot assent to the proposition that it is apparent that the testator intended to deal equally with his children. It is clearly demonstrated, by a mere cursory examination of the will, that the sons were preferred and that, as between them, so far as the will goes, John received the larger bounty, and as between the daughters, that if Ann had lived she would have had a greater share than either of her sisters.

It is not established .that the conveyance of the Parks land to Albert was an advancement from his father. The proof on that subject comes from one of testator’s daughters who, when she testified, was aged and in. feeble health and spoke of matters which occurred when she was a mere child, when it is evident that she may not have correctly understood their meaning, and may have confused mere paternal assistance in a purchase by the son with gift by way of advancement. Her testimony stands in opposition to a deed made for substantial consideration, in which the testator acknowledges that he received such consideration from his son. It was not the $3,800 .consideration for which the •testator received a conveyance from Parks, but $3,075, $1,400 of which is admitted by the deed to have been paid when the deed was executed, and $1,675 of which appears to have been represented by a mortgage, then an encumbrance upon the property, which was satisfied in some undisclosed way seven years later. Pinned to the deed is a promissory note for $250 to Parks, the name of the maker being torn off, dated on the very day of the date of the deed to Albert, upon the back of which are endorsements indicating that Albert paid the note. The note is evidently in the hand-writing of the scrivener who prepared the deed and bears the marks of being as old an instrument as the deed itself. Coming as it does, attached to the deed, with evidences of equal age with that instrument,- even though it comes without proof or explanation, it has enough evidential weight to satisfy me that it is at least uncertain that the conveyance of the Parks land to Albert was by way of advancement.

The conclusion, I think, follows that it cannot be assumed that even the sons were equally dealt with.

I think, therefore, that no tenable position can be predicated upon a purpose of the testator to treat his children equally in the disposition of his estate.

Second. The sixth paragraph of the will treats of the real estate previously given to John and Albert. They did not take it jointly. Each was entitled alone to that which was specifically devised to him, and in the undivided property mentioned in paragraph 4, to his share as a tenant in common and not as a joint tenant. As has been seen, but for the sixth paragraph, the quantity of estate of each would be a fee-simple. In the sixth paragraph the testator imposed a condition upon the fee of each son in his respective holding. Each son must leave lawful issue at his death or he should not take any of the testator’s real estate, or at least any part of that which, in the paragraphs of the will preceding the sixth, was devised to him. To express his purpose in this respect the testator used a single sentence, clearly intended by him to be applicable to the happening of either of these two contingencies: (a) the death of both sons without leaving issue; (&) the death of one son without leaving lawful issue. He says: “ If they should die or either of them ” without “child or children, * * * the real estate” given “to them or either of them” shall go to “my other children share and share alike.” The words “they” and “them” do not refer to a .joint holding of property but to two deaths, and hence illustrations used by counsel in the argument, having reference to a gift to two persons or either of them, are misleading. How, in a separate application of the sentence quoted to the two contingencies, we have, in the first place, where the contingency contemplated is the death of both the sons without issue, this reading: “ If they should die without child or children, the real estate given to each of them shall go to my other children ; ” and in the second place, where the contemplation is the death of one, this reading: “ If either of them should die without child or children, the real estate given to him shall go to my other children.” The definition of the word “ other,” as it is used in the sixth paragraph, is, “ different from that which has been specified.” It is obvious that in the sentence having the double application referred to, the word “ other ” is intended to have a double reference. When the sentence is applied to the death of both sons, the word “ other,” excluding those sons, because they are the children specified, refers to the daughters only; but when it is applied to only one son, then the word “ other ” refers to all children except that one son. I conceive this to be the natural or true, though perhaps not grammatical, meaning of the sentence. The will clearly does not pretend to be a grammatically-correct instrument.

Third. If we interpret the language of the sentence considered literally, neither son can take any portion of the testator’s real estate, either directly from the testator or through a deceased brother, free from the condition imposed, for the provision is that if they both die without-children the real estate is to go over. Hence, in 'giving the effect to the devise over when one dies, which will include the surviving son among the “other children” who are to share the property of the one dying, the condition must attach to that which he will take from his brother’s holding. This situation gives rise to the criticism that he cannot “share and share alike” with his sisters, and hence a construction that he will take at all will not admit of harmony between all parts of the sixth paragraph. I apprehend, however, that the complete answer to this suggestion is that the expression “share and share alike,” following the words “other children,” has reference to the quantity of property that each child is to take, and not to the estate each shall have in the share taken. Because I entertain this view of the meaning of the expression “ share and share alike,” and because Albert left a child at his death, I deem it unnecessary to determine whether Albert would take in a share of John’s property an absolute or conditional fee. If he took either, the fee taken at his death, at least, was absolute.

I am influenced to my conclusion, upon the main question mooted, by another consideration. It is this: When his daughter Ann died, the testator deemed it proper to dispose of the $1,200 which he had charged his sons to pay her. To do this he made a codicil to his will, which republishes the will and becomes a part of it. In this codicil he does not direct his sons to pay the money to “ my other children,” but specifically directs each of them to pay $600 to “my other daughters, viz., Gertrude, wife of Van Horne, and Catharine Maria, wife of Kip, share and share alike” &c. Here is observed a remarkable similarity to the language of the will. The expression “ my other daughters” is used in the codicil. The expression “my other children ” is used in the will. In the codicil the money, like the real estate in the will, is to go “ share and share alike.” If he had intended that his real estate should, by the devise over, go to his daughters only, it thus clearly appears that he could have said so, not only by reference to “daughters” generally, but by the specific mention of their names; but if he meant that a surviving son should share 'in the real estate with the daughters, being without knowledge as to which son would survive, a more difficult task was presented. He was not able to describe the prospective takers by sex, nor could he name the individuals who were to take, for he could not tell which son would survive. He could, of course, explain his purpose by lengthy expression, but would not tire general expression “ my other children ” suffice to manifest his purpose ?

My conclusion is that a surviving son was intended to be included in the expression “ my other children,” and that Albert J. Vreeland is entitled to one-third of the proceeds of the sale of the lands which John I. Ackerman took by his father’s will.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Mary W. Lynde v. Charles W. Lynde.
    1. A decree fox- alimony cannot be made against a defendant who is not served with process for appearance, does not appear in the cause, or has no property within control of the court.
    2. Alimony is not an independent claim or right. It is incidental to a bill for divorce or other relief between husband and wife.
    3. Whether it can be had after a final decree in the divorce case which is silent as to it, except through amendment of the decree, qucere.

      4. While this court will not vary or alter an enrolled decree in a material point without a bill of review or a rehearing, it will, upon petition, amend its enrolled decree when the amendment is necessary to give full expression to its judgment and is matter which would without doubt have been incoi'porated in the decree when made if attention had been called to it.
    On petition of Mary AY. Lynde, which seeks the vacation of the enrollment in this cause and amendment of the decree made on the 7th of August, 1893, by the addition of a clause thereto which shall reserve to the court the right to allow alimony to the petitioner and to regulate the amount thereof from time to time.

      Mr. James Westervelt, for the petitioner.

      Mr. J. Herbert Potts, for the defendant.
   The Chancellor.

The petition for divorce in this case was filed in November, 1892, by James S. Aitkin, Esq., as the solicitor for the petitioner. When it was filed the defendant did not have any property, but his father was alive and was a man of considerable wealth. In giving her solicitor instructions the petitioner discussed this fact with him, and the probability of the defendant ultimately having bounty or inheritance from his father. She was anxious that she should obtain a decree which would admit of her having alimony thereafter, the amount of which could be fixed according to her husband’s wealth, and accordingly her petition contained a prayer for alimony.

When the petition was filed the defendant was not resident in the state, and upon proof of that fact he was proceeded against as a non-resident or absent defendant. Notice was* duly published and mailed to him, which expressly declared that the suit was for divorce from the bond of matrimony “and for.alimony.” The defendant was not served with process and did not appear in the suit.

Knowledge of the pendency of the suit reached his brother, a ' lawyer in the city of New York, who, at the instance of his father, retained a solicitor of this court to prevent if possible the entry of a decree for alimony, but not to contest the application for divorce.

It was the object of the father and brother to have the decree to be made iu the case expressly provide that there should be no alimony, and, if possible, to secure a written agreement to such a decree. The testimony of the solicitor so employed is that he examined the petition for divorce and found that it did not pray for alimony, and that he had an understanding with Mr. Aitkin that a decree for alimony would not be demanded. It is evident from the faet of the presence of the prayer for alimony in the petition that the recollection of the solicitor upon that point is at fault, and, as Mr. Aitkin has no remembrance of making any agreement with him to the effect that alimony should not be demanded, his memory or understanding of the effect of his interview with Mr. Aitkin, possibly, is at fault also. But however that may be, the solicitor thus employed did not enter an appearance for the defendant in the suit. Nor did he undertake to act for the defendant. Any such agreement as is insisted upon should have been in writing to entitle it to recognition by the court. Mr. Aitkin’s client’s instructions forbade any agreement which would abandon alimony.

In preparing the decree in the case it is clear that Mr. Aitkin did not deem himself to be bound in any way to omit reference to alimony. His testimony is that it was his purpose to so draw the decree as to reserve for the petitioner the right to thereafter have alimony. He says that it was impossible at that time to have any amount of alimony allowed and fixed because the defendant then led a worthless, vagabondish existence. He attributes his failure to make the proposed insertion in the decree solely to the facts that in drawing that document he followed a form which did not contain the provision, and that through inadvertence he omitted it. Neither he nor his client became aware of his omission until about the time of making the application. As the proofs stand I think that the agreement insisted upon is not proven, and that the omission in the decree is shown to have arisen through inadvertence.

As the decree was against the absent defendant, who was not served with process, did not appear in the case and did not have property which was under the court’s control, it could not have given alimony — a judgment in personam — in favor of the wife. Brown Jur. § 11; 2 Bish. Mar., D. & S. § 844; Browne Div. 267.

At best it could only have reserved question as to the allowanee of alimony for future determination, upon application to be made after jurisdiction of the defendant for that purpose should be obtained, by actual personal service of process upon him,.his appearance or his acquirement of property in New Jersey.

By the unwritten law, alimony is not a matter of independent claim or right. 2 Bish. Mar., D. & S. § 839; 1 Bish. Mar., D. & S. § 1368. It is incidental to a bill for divorce or other relief between husband and wife. Anshutz v. Anshutz, 1 C. E. Gr. 162; Miller v. Miller, Sax. 386; Yule v. Yule, 2 Stock. 138; Cory v. Cory, 3 Stock. 400; Rockwell v. Morgan, 2 Beas. 119, 121. The nineteenth section of our statute (Gen. Laws 1269) treats of it as attendant upon a suit for divorce. It declares that

“ when a divorce slia.ll be decreed, it shall and may be lawful for the court of chancery to take such, order touching alimony and maintenance of the wife * * * by the husband, as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just,”

and where the wife is the complainant in such a suit, to require security from the husband, and, in its default, to sequester his personal estate and the rents and profits of his real estate, and apply the same “ to such maintenance and allowance as to the said court shall from time to time seem reasonable and just.”

. The contemplation of the legislature in this section is that, when the divorce shall be decreed, the court may “ take order,” make some direction, touching alimony for the wife. Its action need not be final upon the subject. It will deal with the conditions then existing and allow and fix the alimony or reserve the question pending future changes in circumstances. In providing that the personal estate and rents of the realty of the husband may be applied to “such maintenance and allowance as to the said court shall from time to time seem reasonable and just,” the statute exhibits an intention that the subject shall be continuously dealt with according to the varying conditions and circumstances of the parties. Richmond v. Richmond, 1 Gr. Ch. 90; Calame v. Calame, 10 C. E. Gr. 548, 551.

The reason of such legislative purpose is obvious. Consummated marriage carries with it rights and duties which, so far as a faithful wife is concerned, can morally end only with the life of one of the parties. Her right to support and maintenance continues so long as it is just that she shall retain it. It is co-extensive with the husband’s position and ability. His ability and the justice of her enjoyment of her right are subject to the change of circumstances which the court cannot anticipate, and hence complete justice requires that the court’s power to act shall be kept open so long as it may be needed to direct just Variation.

It is plainly the legislative contemplation that the subject of alimony is to be dealt with as an adjunct of the divorce suit, and I cannot but deem it, at least, a question of grave doubt whether, when the final decree in such a case fails to treat of the question of alimony in any way, and more particularly when in a case like the present, where alimony is specially asked, it so fails, it will not be taken to have determined all matters involved in the suit and to have ruled adversely to the question of alimony, which it has not affirmatively responded to by allowance or reservation. I need not decide this question. Its gravity is enough to satisfy me that the amendment sought will be of material value to the petitioner.

I am satisfied that the omission of the decree to reserve the question as to alimony was not a deliberate act of the petitioner’s counsel based upon the exercise of his judgment, but was due to the inadvertence of that gentleman in drafting the decree. The evidence in the cause makes a prima fade case for the allowance of alimony, to be limited in amount by the defendant’s ability, and I perceive no ground upon which the court could or should have refused to reserve question as to the allowance if such reservation had been asked when the decree was signed.

Respecting such an amendment the rule recognized by this court is, that while the court will not vary or alter an enrolled decree in a material point, without a bill of review or a rehearing, it will, upon petition, amend its enrolled decree, when the amendment is necessary to give full expression to its judgment, and is matter which would without doubt have been incorporated in the decree when made if attention had been called to it. Dorsheimer v. Rorback, 9 C. E. Gr. 33; Jarmon v. Wiswall, 9 C. E. Gr. 68; Jones v. Davenport, 18 Stew. Eq. 83. I think that the améndment should be made in this case. The petitioner’s delay in asking for it is not attributable to laches nor to acquiescence in the decree as made. The proof is uncontradicted and satisfactory, that she did not know of the deficiency in the decree until just before she made the present application. Her attention was then called to it, because the defendant’s father had died, and it was ascertained that the defendant would take a valuable interest in the residuary estate and she prepared to ask the court’s assistance under the decree. It is .true the defendant has married again. He represents this fact by an affidavit which fails to disclose the date of his remarriage. Whether the marriage' took place before or after the present application, does not definitely appear by admissible evidence. But I do not think that the fact of his remarriage changes the situation. It exhibits the defendant’s acquiescence in the divorce. The matter of the amendment will not disturb the divorce. The decree will be amended without being opened, either by insertion of the matter in the decree itself or by a supplemental order.


author: Pitney, V. C.

text:
    Thomas McMichael v. Henry C. Webster et al.
    1. The vendor of real estate remained in possession of the premises after passing of the title, without the consent of the vendee, and collected some rents which accrued after such conveyance. — Held, that in the foreclosure of a consideration-monpy mortgage given by the vendee to the vendor, the vendee was not entitled by way of offset to an allowance for the use and occupation of the premises and the rent received.
    2. While so in possession, after conveyance, the vendor committed waste upon the premises, resulting- in a deterioration of their Value. — Held, that the defendant was entitled to a corresponding abatement upon the mortgage given for consideration money.
    3. The premises conveyed were a farm, consisting of four lots, bounding on one side upon a tidal stream. The call of the description of one course of one of the lots was along the course of the creek at low-water mark. In the preliminary negotiations the vendor falsely asserted that the farm contained one hundred and eighty-five acres, and the preliminary written contract for the sale described it as a farm containing “about one hundred and eighty-five acres, more or less.” In point of fact, it contained one hundred and forty-nine acres and sixty-eight hundredths, by actual survey, and that was the sum of the footings of the four lots contained in the description in the deed under which the vendor held. The difference between one hundred and forty-nine and sixty-eight hundredths acres and one hundred and eighty-five acres came to the attention of the defendant at and just before the passing of the title, and the vendor, upon inquiry by the vendee, declared that the course of the creek had been changed and the protecting bank along its side had been pushed out, so that the quantity of one hundred and eighty-five acres was actually included within the description. This statement the vendor knew to be false. — Held, that the vendee was not estopped by the mention of acreage in the conveyance from setting up the fraudulent representation in defence to a foreclosure of the consideration-money mortgage and being allowed an abatement therefor.
    This is a bill to foreclose a mortgage upon land, dated the 12th of November, 1894, to secure $5,000 in one year, with interest semi-annually, with a clause providing for the maturity ■ of the principal in case the interest was not paid. Default .was made in the payment of the first six months’ interest, and this bill was filed on the 18th of July, 1895.
    The answer admits the making aud execution of the mortgage, and sets up several defences, which may be stated thus, in the inverse order of their importance:

      First. That the mortgage was given for part of the consideration money of the conveyance by complainant to defendant of the mortgaged premises, and that the complainant remained in possession of the premises for several months after the conveyance and time for delivery of possession had passed, and claims for use and occupation.

      Second. That he collected in cash certain moneys for wharfage on a wharf situate on the mortgaged premises, which accrued after the conveyance.

      Third. That while so in possession, after the conveyance, he committed waste upon the premises by cutting and carrying away trees, destroying sheds and fences and removing bridges.

      Fourth. That the complainant willfully and fraudulently misrepresented to the defendant the quantity of land to be conveyed, namely, that he represented the mortgaged premises, which consisted of a farm, to contain one hundred and eighty-five acres, when, in point of fact, it contained only about one hundred and fifty acres.
    The property was conveyed by the complainant to the defendant by deed dated November 12th, 1894, in pursuance of a contract in writing entered into between them on the 17th of October, 1894. So much of the contract as supports this last defence of the defendant is in these words :
    “ The party of the first part agrees to sell to the party of the second part all that farm, buildings, meadow &c., situate at Borden’s Landing, N. X, containing about one hundred and eighty-five acres, more or less.”
    The land, as described in the title deed of the complainant, is comprised of four different tracts, which, when plotted, block in together and form one compact piece. These four tracts are stated in the deed to contain respectively one hundred and thirty-four hundredths acres, six and twenty-five hundredths acres, forty-one and ninety-seven hundredths acres, one and twelve-hundredths acres, a total of one hundred and forty-nine acres and sixty-eight hundredths of an acre, and two several careful surveys made during the hearing showed that it contained no more.
    The farm is situate on the southwest side of Rancocas creek, a tidal stream in Burlington county, and about six miles from its debouch into the Delaware river.
    By the calls in complainant’s title deed of the description of the tract of one hundred and thirty-four hundredths acres which bounds on the creek, the line runs, as is usual in West Jersey, to low-water mark, and, of course, includes all the lands between high and low-water marks, and the surveys above referred to also ran to low-water mark. The course along the river is given in the deed without courses and distances thus, “thence northward and northwesterly along the several courses of said creek or river to the place of beginning.”
    Along the river.the farm has been protected from the overflow of the creek by an artificial berme-bank running parallel with low-water mark, the base of which is high-water mark.

      Mr. Charles E. Ehendriekson, for the complainant.

      Mr. John W. Wesoott and 8. Morris Wain (of Philadelphia), for the defendants.
   Pitney, V. C.

Both the parties to this action were, at the time of the occurrences which gave rise to the litigation, engaged in real estate transactions, and both had their places of business in Philadelphia, and were brought together by a real estate broker of Philadelphia, acting on behalf of the complainant, named Garretson, who died before the hearing of the cause. He represented the complainant in making the bargain. The defendant was assisted by a Mr. Gimber, a member of the bar of Philadelphia, who also died before the hearing.

The original contract of October 17th, 1894, was not produced, but it was admitted to have been prepared by Mr. Garretson. It. was executed at the office of Mr. Gimber, in Philadelphia. There is much conflict between the evidence of the complainant and the defendant as to the occurrences throughout the transaction; and I may say, at the start, that judging from the manner of the witnesses and all the developments of the hearing, I am constrained to place much more reliance upon the evidence of the defendant Webster than I can upon that of the complainant, McMichael. McMichael swears that the contract was written in Mr. Gimber’s office in the presence of both parties. Webster swears that it was brought there by Garretson and the complainant already prepared. I adopt Mr. Webster’s statement. So that the complainant is clearly responsible for the quantity of one hundred and eighty-five acres expressed in the contract.

The parties met on the premises a few days before the execution of the contract, and on inquiry by the defendant, the complainant, as defendant swears, and I believe him, stated that the farm contained one hundred and eighty-jive acres and more. The complainant denies this, but faintly, if at all. In fact, he admits that he did say that it contained about that amount. ' He says, however, that when the moment of the execution of the contract arrived, he strongly objected to naming one hundred and eighty-five acres as the contents, and only consented after an explanation by his broker, Mr. Garretson, that it made no difference, as it was stated to be “ about one hundred and eighty-five acres, more or less.” He swears that this discussion took place in Webster’s presence. This is denied by Webster, and I accept his denial as worth more than complainant’s assertion, not only because he is the more reliable witness, but because his conduct, immediately after he discovered the shortage, indicates that he relied upon the quantity as a material matter.

The effect of complainant’s evidence on this part of the case, however, is to show that he did not execute the contract unadvisedly and without knowing its contents and considering its effect.

The deed of conveyance under which the complainant held the farm was not produced or shown to the defendant or his counsel, so far as appears, at any time until after the contract was signed.

The primary and important question to be determined is whether or not this representation of quantity was made through a mistake based upon an honest supposition that the farm actually contained that quantity of laud, or whether it was willfully and knowingly false, and made for the purpose of influencing the defendant to purchase the property.

I am unable to find anywhere in the case the least evidence to support the theory that the complainant had any ground whatever to suppose that his farm contained any more than the sum of the acreage expressed in the deed. There was not the least dispute or doubt about the boundaries. It was flanked on two sides by a public highway, on the third by the creek and on the fourth by a well-defined line of partition with the adjoining owner. The description of the line along the creek inferentially called for low-water mark, and could not possibly go beyond it. There was no contention, or room for any, that there was any mistake in the computed areas stated in the deed by which the actual contents were understated.

But, in fact, no contention was made by the complainant that he thought that the several contents as stated in his deed were in anywise erroneous. He at first put himself upon the ground that the creek had changed its course along his line, and that a new berme-bank had been built along the creek subsequent to the origin of the description contained in the deed, and that by that means more land had been taken in. But there was not the least evidence to show any such change of course or that the new berme-bank pushed the low-water mark into the creek a particle. The evidence shows that at one end the new bank was further away from the creek than the old one, and that at the other end it was somewhat nearer.

The complainant’s evidence tended to show, but not in a satisfactory manner, that at one end the acreage inside of the new berme-bank was increased by five acres and one-half, and on the other end the proof is clear that it was diminished about an acre. But such change did not affect the low-water mark a particle, nor had the complainant the least ground to suppose that it did. And so far as regards the acreage within the bank, the change would make an increase, at best, of not more than four acres. But a change in the bank would not necessarily change the low-water mark, which could result only from a change in the bed of the creek.

After the conveyance was passed and the transaction closed under circumstances presently to be stated, and the defendant had discovered the deficiency in acreage, he notified the complainant and demanded reparation, and the complainant then stated to him (defendant) that the one hundred and eighty-five acres were all there, and would so appear by a new survey, and that it was to be found by this increase of land taken in by a new bank.

At the hearing complainant produced a rough, inartistic map made by himself from measurements which he swore were made by himself shortly after the date of the conveyance, by which he shows a strip of land outside of the bank, between that and low-water mark, containing about forty acres. He made it up in this wise: he made the length along the creek eight thousand nine hundred and twenty feet (the actual distance is about four thousand feet), and the average width of the strip between high and low water one hundred and ninety-six feet, which made, as he swore, forty acres of land, and he swore positively that there is an average of more than two hundred feet in width from the bank to low-water mark.

Now, the base of the bank is at high-water mark, and a careful measurement, taken at an extremely low tide, shows the contents of the strip between high and low-water mark to be seven acres and seven-hundredths, leaving one hundred and forty-two acres within and including the bank. Another measurement, taken at ordinary low-water tide, makes the strip between high and low water five acres and sixty-one hundredths; and the proofs show that, in order to include one hundred and eighty-five acres, substantially the whole bed of the creek would be taken in; that it would require eleven feet in width and the whole length on the creek to make one acre, or three hundred and eighty-five feet in width to make thirty-five acres. The average width of the creek is about four hundred feet.

No attempt was made by the complainant, although he had ample time and opportunity, to overcome these careful measurements made by the defendant’s surveyors, of the last one of which he had previous notice and an invitation to be present.

The result of these measurements shows clearly that the complainant deliberately attempted, by means of a grossly untruthful map, to mislead the court, and to thereby justify his assertion that there were one hundred and eighty-five acres in the tract.

Moreover, on the question of fraud, there'is direct evidence. John Plasket, who lived in the neighborhood, testified that in a conversation with the complainant shortly after the sale, in speaking of it he said: There was a little humbugging, but there was so much, ‘ more or less,’ and that settled it; that he sold it for ‘more or less,”’ emphasizing the words “more or less.”

I conclude, from a consideration of all the circumstances, that the representation of acreage was made by the complainant fraudulently, and that the ease is brought within the canon laid down by the late Judge Parker, speaking for the court of errors and appeals, in Melick v. Dayton, 7 Stew. Eq. (at p. 249), where he says: “ There is no doubt that the question of abatement can be raised by a mortgagor, by answer in foreclosure proceedings, and, under certain states of facts, deduction from the mortgage will be ordered to the extent of the value of the deficiency. If a vendor fraudulently represents the number of acres to be greater than the actual number conveyed, and thereby induces the vendee to give more for the tract than he otherwise would, the vendee is entitled to an abatement. Abatement will also be made where there is gross mistake. Gross mistake is where the difference between the actual and the estimated quantity of land represented is so great as to clearly warrant the conclusion that the parties would not have contracted had they known the truth.” It is hardly necessary to say that a difference of thirty-five acres in a farm of one hundred and fifty acres would be a “ gross mistake,” and cannot be overcome by the use of the words “about” and “more or less.”

But the answer mainly relied upon by the complainant to this part of the defendant’s case is that the defendant had notice of the actual quantity of land comprised in the conveyance before the transaction was closed, and had an opportunity to recede from the contract, and is, therefore, estopped from setting up this defence. This renders necessary a consideration of the circumstances attending the transfer of title.

The transaction was not an ordinary sale for cash, but an exchange of properties — that is, the defendant conveyed to the complainant certain real estate in or near the city of Philadelphia in exchange for this farm. After the preliminary contract had been executed the transaction took this course: The complainant handed to Mr. Gimber, counsel for the defendant, the deed under which lie claimed title to the farm, made to him by one Craig, dated September 2d, 1890, and in that document is found the description of the land in the four tracts before referred to. The defendant delivered to the complainant the title papers to the lands which he agreed to convey to the complainant. Each party, of course, wished to examine the title of the other, and it was agreed that each party should prepare the conveyance which he expected the other to execute. This cast upon Mr. Gimber the burden of examining the complainant’s title to the farm and preparing the conveyance from the complainant to the defendant. In order to the proper carrying out of the transaction it became necessary for the defendant to procure a loan on the premises in question, and Mr. Gimber agreed to advance the money, but required a guarantee of the title from a title guarantee company, and for that purpose lodged complainant’s deed with the Real Estate Title Insurance and Trust Company of Philadelphia. The delivery of the deed to the insurance company, and the signing of the formal application for insurance, was made by a Mr. Frank Benham, a clerk of Mr. Gimber. There was some discrepancy in the testimony as'to what occurred on that occasion. Mr. Benham swears that he took the complainant’s deed to the insurance company, handed it to the proper clerk and signed an application in blank and left the clerk to fill up the description himself from the deed, so that he (Benham) did not discover that the quantity of land described in the deed was less than one hundred and fifty acres, and further, that the application was to insure a farm of one hundred and eighty-five acres. In contradiction of Mr. Benham, two clerks in the insurance company’s office swore that the description in the application was filled up by the insurance company’s clerk in the presence and by the dictation of Mr. Benham, who read from the deed for that purpose, and there is nothing on the face of the written application which was produced to show that one hundred and eighty-five acres were mentioned. I am inclined to think that Mr. Benham is mistaken in his recollection, but I do not think that it was anything more than an honest mistake. The description in the application is abbreviated and in effect simply states the four lots by the amount of their acreage. There is nothing to show, or lead to the belief, that either Mr. Benham or Mr. Gimber, at or before that time, had footed up the acreage of the four tracts so as to ascertain the sum of the four.

The regular course of business in such transactions is for the insurance company to make a preliminary examination of the title and send to the applicant a paper called a “ settlement certificate,” which shows the present condition of the title and the encumbrances thereon.

The object of this is to enable the parties to pass the title with safety, after which the conveyances are recorded, the searches continued down and the policy of insurance issued. In this case the settlement certificate is dated November 10th, 1894, and was returned on or about that day to Mr. Gimber, with the complainant’s deed, to enable him (Gimber) to prepare the conveyance.

Mr. Benham swears that, according to his recollection, when the settlement certificate came in he first learned that the quantity of land was less than one hundred and eighty-five acres; that it was so reported to him by the insurance company. I am satisfied that that occasion was the first that he or Mr. Gimber knew of it, but I think he was probably mistaken as to the mode in which the same came to their knowledge. I think it was brought to Mr. Gimber’s attention by his then looking over the settlement certificate and deed for the first time with care.

In the settlement certificate are these words: “Contents will be insured as more or less unless survey is produced,” and a short description of the land gives the four tracts with their several contents, but not footed up to show the total.

More than that, a - Mr. Henry, who was the conveyancer chosen by the complainant to prepare his conveyance and. attended to the passing of the title, swears that he had an interview with Mr. Gimber, after the settlement certificate came in, in which the subject was first discussed. So I think the weight of the evidence is that Mr. Gimber knew of the apparent discrepancy before the conveyance was passed. Mr. Webster (the defendant), however, swears, and I believe him, that he did not hear of it either from Mr. Gimber or any other source until after the affair was closed. He swears .that he and his wife executed the deed and mortgage and handed them to Mr. Gimber on the morning of the 13th of November; that the amount to be paid in cash was then ascertained; that he left his check for it and left the city for the country before the matter was entirely closed, and without any knowledge, as I have said, of the shortage; that a few days afterwards he called at Mr. Gimber’s office, and then, for the first, learned from Mr. Gimber of the shortage, and that they immediately called in Mr. McMichael, the complainant, and had an interview on the subject; that he (McMichael) then stated distinctly that the actual acreage, notwithstanding what was stated in the description, was one hundred and eighty-five acres, and that he would show it and make it right. The language imputed to him by Mr. Webster is:

I will make that good; the ground is there; we will have it surveyed, and I will make it good. He said the acreage was there, but if not that he would make it good by other means.”

The effect of Mr. Webster’s evidence is that Mr. McMichael stated to him that he had built a new bank around the marsh and had taken in a quantity of land not reclaimed when the survey was made upon which the acreage in the deed was based. In this statement Mr. Webster is sustained by Mr. Gimber’s clerk, Benham, who swears that he heard Mr. Webster say on several occasions that there were one hundred and eighty-five acres within the bank, and that if it was not there he would make it up; and that afterwards and after defendant had had his survey made (in the same year, 1894, by a surveyor who was out of the state at the time of the hearing) and the result stated to the complainant, he attempted to make it up by showing by the map which he had that the land was outside of the bank, and between that and low-water mark instead of inside the bank as first stated. Benham says that this first statement of complainant, that the acreage was within the bank, was made in Gimber’s office about a week after the deeds were passed, when he was called thereto meet Mr. Gimber and the defendant about this matter of shortage, and that it was repeated on-several occasions and adhered to until defendant’s survey proved the contrary, when he shifted his ground by attempting to make it up outside of the bank and between that and low-water mark.

Mr. Henry, the complainant’s solicitor above mentioned, swears that the interview between him and Gimber, in which Gimber called his attention to the shortage in acreage, took place on Saturday, the 10th of November, or Monday, the 12th, as the title finally passed, I think, on the 14th or 15th. In this I think he is mistaken, because Mr. Webster swears positively that he did not hear of it from Mr. Gimber before he left on the 13th, and Mr. Henry swears that while the deeds were all ready for delivery on the 13th, and they met for the purpose of passing them, and the amount to be paid was agreed upon, yet the deeds were not passed on that day but on a subsequent day, when Mr. Gimber, being asked whether Mr. Webster was satisfied (about the shortage), replied that he had not been able to hear from him, but he guessed it would be all right. This shows that after Mr. Gimber discovered the shortage he tried to communicate with Mr. Webster on the subject.

Now let us inquire what passed between Mr. Henry and Mr. Gimber (as I think on November 13th, after Webster left) with regard to the shortage in quantity. This is the language used by Mr. Henry:

“Mr. Gimber told us that there would not be any settlement on that day and referred to a settlement certificate. He said, ‘ I see that we only get one hundred and forty-nine acres and a fraction.’ McMichael said that he thought there was more than that; that he ran to low-water mark in the creek; that there had been some land made by change in the course of the creek, and that his new bank was further out than the old bank was; but he said that it didn’t make any difference ; it was not too late, and there was no harm done yet if Mr. Gimber was not satisfied.”

Upon that subject he says:

1 There was nothing done until the following day, when we called upon Mr. Gimber, McMichael and myself did, and I believe he was to hear from Mr. Webster, and he then told us that he hadn’t heard from him, but that he would not wait any longer, he would take the responsibility of delivering the papers— the deeds — himself, and he did deliver them, and told us it was all right, and he could record the papers and consider the matter settled.”

That, he says, was after the day when Air. "Webster was there to leave his deed and mortgages, properly executed, after which he left for the country.

Now the fact that Mr. Gimber had tried to hear from Air. Webster about the acreage indicates that he had learned of the shortage after Air. Webster left. This witness, Mr. Henry, though he had been for years employed professionally by the complainant, and would naturally be interested on the side of his client, gave his evidence in a manner that leads me to believe that it is fairly reliable. McMichaePs account of the interview makes it much stronger for him, but for reasons already stated I place no reliance whatever on his evidence.

It appears that as soon as Mr. Webster returned from the country, which was in about a week, Mr. Gimber called his attention to the amount of acreage stated in the deed, and caused a letter to be sent to the complainant to come to his (Gimber’s) office and meet the defendant; that the complainant did come, and that then he made the statements and promises which are testified to by the defendant and Mr. Benham; that the defendant, shortly after that, went on and had a survey made, which (though not proven in court by reason of the absence of the witness, and was over and above the two made at the hearing) showed the acreage to be but one hundred and fifty acres, and communicated that to the complainant; and then the complainant, as hereinbefore stated, declared that the acreage was there and pretended to make the measurements and did make the map to which I have already referred.

The question is whether what occurred between Mr. Henry and McMichael, on the one side, and Gimber, acting for the defendant, on the other side, on or about the 13th of November, created an equitable bar against the defendant setting up this defence. I think it did not. The complainant did not state or admit to Mr. Gimber that the whole number of acres mentioned in the contract, namely, one hundred and eighty-five, was not actually contained within the description in the deed and would pass thereby, but declared that the quantity was actually there, and it will be observed that by reason of one of the courses running along the low-water mark of the stream it was impossible to ascertain whether this allegation was true or not without an actual survey on the ground.

Now Mr. Henry reports his client as saying that the course ofthecreeh had been changed and that the embankment had been put farther out, whereby the quantity of land was increased, which was, in effect, saying that

“When that measurement was made which resulted in the acreage contained in that deed from Craig to me, there may have been only one hundred and forty-nine acres and a fraction there, but since that, by the change in the course of the stream and the pushing out of the embankment, the quantity has increased, so that my original representation contained in the contract of sale is true.”

Now Mr. Gimber had a right to rely upon that. The lime for the closing of the transaction was close at hand. Only a day or two remained. His client was in the country. The statement of Mr. McMichael was not of a mere matter of judgment but of a positive fact, namely, a change in the course of the creek and an advance of the low-water line and of the embankment, making an increased acreage.

Now it seems to me too clear for argument that it does not lie in the mouth of Mr. McMichael to say, “You should not have believed me or relied upon my statement, but should have gone on the ground and made a measurement.” On the contrary, under these circumstances, I think that Mr. Gimber was .justified in accepting McMichael’s assurance as to quantity. And here it is to be observed that there was no necessity to change the description, for if it were found that in running the course along the creek the actual quantity of one hundred and eighty-five acres instead of one hundred and forty-nine acres would be contained, it would pass by the new deed, notwithstanding the quantity was stated at a less amount than was actually contained within its limits.

Then what occurred about a week after the defendant’s return from the country, is significant. The-complainant, when called upon, did not say

“ Why, you knew all about this beforehand; you knew there were only one hundred and forty-nine acres there, and accepted the conveyance by your attorney, Mr. Grimber, on that basis,”

but, on the contrary, insisted that the whole quantity was there and would so prove on a survey, and then, when the survey showed that it was not there, that even when going to low-water mark there were no more than one hundred and forty-nine acres, and at high-water mark only about one hundred and forty-two acres, he resorted to the miserable fetch of attempting, by a false map, to show forty acres between high and low-water mark, thereby taking in the whole bed of the stream.

The remarks I made, and the authorities cited in Turner v. Houpt, 8 Dick. Ch. Rep. 526 (at p. 535 et seq.), seem to me to apply with more or less force to this case. It is not worth while to repeat them.

There can be no doubt but that the quantity of land influenced the defendant in the bargain. He swears distinctly that the complainant stated to him that the land was worth $200 an acre, and some of it $250 an acre, for farming purposes. And while the farm was not sold by the acre, yet its fertility was discussed and highly commended by the complainant, and its value consisted chiefly in its use for farming purposes, in which case, of course, acreage counts. Hence, the presumption must be that the amount of acreage, in the absence of proof, influenced the defendant’s mind. It is here impossible, of course, to say, as was said in Melick v. Dayton, that the relative quantity is so small, taken in connection with other circumstances, as to show that it did not influence the mind of the purchaser.

The conclusion at which I have, for these reasons, arrived, is that the defendant is entitled to an abatement from the mortgage on account of its shortage of acreage, and the only remaining question is on what basis it should be ascertained. Defendant claims that it should be at the rate of $151 an acre, which is the rate by the acre at which the property was priced. The consideration mentioned is $28,000, which, for. one hundred and eighty-five acres, is a little over $151 an acre. But I am unable to come to that conclusion. In the first place, it does not appear with sufficient certainty that the price named in the deed was fixed as the actual value of the property, in the same manner as it would be if the transaction had been one for cash instead of an exchange of properties. In the next place, such a valuation leaves out of account the buildings and fixed improvements, the value of which was not shown by any proof. Taking all the evidence together, I am inclined to think that $100 an acre, or $3,500, should be credited on the mortgage as of the day it bears date.

Against this result the complainant makes the point that the mortgage can only be treated as a consideration-money mortgage to the extent of $2,500, because, by the original contract, $2,500 was to be paid in cash by the defendant to the complainant and included in this mortgage. Beside that, a certain mortgage on defendant’s property, which he, by the contract, should have paid and removed, and certain taxes and assessments, amounting in all to $2,500 more, the defendant failed to remove, and the complainant was obliged to assume those and include them in this mortgage, and in that way the amount was raised'to $5,000. But I am unable to adopt that view. When the parties came to settle the amount to be paid by the one to the other, it was found that, counting the encumbrances on the defendant’s property, it would fall short of paying the complainant the amount of $28,000 by $5,076 and some cents, whereupon this mortgage was made and the $76 and odd cents paid in cash. The whole affair was a single transaction, and I am unable to perceive how the mortgage is anything other than a consideration-money mortgage to its whole extent, and will so hold.

The other matters set up by the answer can shortly be disposed of. With regard to the use and occupation of the premises, I hold that it is a mere matter of offset, and cannot come in here under the ruling of the court of errors and appeals in Coriell v. Brown, 5 Dick. Ch. Rep. 753, which binds me.

The same with regard to the few dollars that were collected for wharfage while the complainant remained in possession.

With regard to waste committed by the complainant, I am of the opinion that it comes in under the same principle as the shortage in the acreage of the land and should be allowed for. It was a willful diminution in value wrought by the complainant while mortgagee in possession of tile mortgaged premises, by which they were rendered less valuable. And while I have been unable to find any direct authority upon the subject, and none was cited by counsel, I think allowance should be made for the waste. And without going into the evidence on this point, which was voluminous and quite contradictory, I will state my conclusion, briefly, to be that the complainant did, after the contract of October 17th, and I think in the main after the deed passed and while he was in possession, cut divers cedar trees and remove them from the premises, carefully concealing the stumps and removing the brush, so as to prevent the discovery of their cutting; that he tore down some sheds and removed some planking from the bridges and some other articles about the premises which should fairly be treated as fixtures. But I think that the damage to the premises by so doing has been overestimated by the defendant’s witnesses, and that $100 will cover the whole. In arriving at that sum, I estimate the cedar trees cut at their full value, and I think that the defendant is entitled to have them so estimated as against the complainant, for the reason that they were growing trees and steadily increasing in value, and the injury to the farm by their removal was probably much greater than the present selling value of the trees when cut. '

If either party is not satisfied with my estimate of the difference in value between the farm as it stood and what it would have been if it had contained one hundred and eighty-five acres, there may be a reference for that purpose. But if neither party asks for a reference, I will advise a deci'ee for the complaiuant for $1,400, with interest from the date of the mortgage and the costs of the suit, not including the cost of witness fees and process therefor, but including the cost of one copy of the. evidence which was written out for the use of the court and necessary for the determination of the cause.


author: Pitney, V. G.

text:
    Kate M. Riley v. Charles E. Allen, executor &c. of Joseph K. Riley, deceased, et al.
    A man promised his daughter-in-law that if she would convey to him a certain tract of land he would, by his will, give to her and her husband each the interest of 525,000 during their several lives. On the strength of that promise the daughter-in-law and her husband conveyed to him the land in question. He died testate of a will by which he failed to fulfill his promise, but disposed of his property otherwise for the benefit of the infant children of his son and daughter-in-law. The daughter-in-law filed a bill against her children, praying that the conveyance from her to her father-in-law might be set aside, and for other relief. — H'eld, that her proper remedy was either, first, by action at law against her father-in-law’s estate for damages for the breach of his contract, or second, by bill in equity praying for the specific performance of the contract to establish the two funds, and that the land conveyed might stand as security for the sums, and that she could only have the alternative relief of rescission and reconveyance at the option of the defendants, if they were adults, or by the consent of the court as guardian of the infants. As it appeared in this case that it was not to the interest of the children to have the funds established but to give the relief sought for, it was so decreed.
    Final hearing on pleadings and proofs taken before a master.

      Mr. Howard Carrow, for the complainant.

      Mr. F/noch S. Fogg, for the defendants.
   Pitney, V. G.

This is a suit for the rescission of a contract (in the shape of a promise) to make a certain provision for the complainant by will. The contract is alleged to have been made by Joseph K. Riley, since deceased, who is represented here by the defendant Allen, his executor. The real defendants are the ten children of the complainant and one nephew, who are the beneficiaries under the will of the testator. The nephew, however, is affected remotely, if at all.

The allegations of the bill are that at and before April 20th, 1885, the complainant, who was then, and still is, the wife of one Edward B. Riley, son of Joseph K., deceased, was seized of two parcels of land situate in or near the borough of Woodstown, Salem county, of the value of about $25,000; that on the 20th of April, Joseph K. Riley, who was a man of large wealth, entered into an agreement with the complainant to the effect that in consideration that she, with her husband, would convey to him all their right, title and interest in the lands just mentioned, he, said Joseph K. Riley, would, in and by his last will and testament, at his death, give and bequeath unto the complainant and her said husband the use, interest and profits of $50,000, namely, $25,000 to each, for and during the terms of their natural lives, and that in pursuance of that agreement she, with her husband, conveyed the premises to Mr. Riley; that the title so remained in him and he had the benefit of the ownership thereof until he died, which was January 2d, 1894, a period of a little less than nine years; that at his decease the complainant had ten children, who were all made defendants, the oldest of whom at that time was eighteen years of age, and the youngest less than a year.

The bill further states that the testator failed to keep his agreement but by his will gave neither the complainant nor her husband anything, but provided (after some trifling bequests not worth setting out here) that $6,000 of his estate should go to his grandson, Joseph K. Riley, Jr., the son of a deceased son, James R. Riley, and the remainder of his estate, both real and personal, he gave to his executor in trust for and during the lifetime of complainant’s husband, to apply the income, in his discretion, to the support, maintenance and education of the ten children of the complainant, and to permit the family of his son, Edward B. Riley, which includes, of course, the complainant, to occupy such portion of his real estate as they may desire for a home for him and his family free of rent, upon condition that they keep the premises in good repair, with the privilege of cutting timber for firewood and for repairs and improvements to buildings, with power of sale in the executor, the proceeds of the sale to become part of his estate, and at the death of Edward B. Riley the property to be divided among the children of complainant.

The prayer of the bill is that the conveyance from the complainant to the testator may be set aside and decreed to be null and void, and, that she may have such further and other relief as the nature of the case may require.

The facts of the case as they appeared at the hearing are that Mrs. Sarah. Riley, the wife of Joseph K. Riley, deceased, died! seized of the lands in question, in February, 1874, and by her will she gave the use of them to her husband, Joseph K. Riley, during his natural life; she then, after providing for an unmarried daughter, Beulah, by devising to her certain real estate which is not brought in question here, gave all the remainder of her real estate,, which includes the premises here in question, to her son, Edward B. Riley; she also gave him a farm of about forty acres, the title to which was in her husband, so that as to that the devise was futile. Out of her personal property which she gave to her husband, she requested that $6,000 should be taken by her husband’s executors and put at interest, and the same given to her son, James R. Riley, during.his natural life, and at his decease, without issue, that sum to be divided between her two children, Beulah and Edward. It would seem that at this time neither of her sons was.married. Afterwards her son James did marry, and died leaving one son, Joseph K. Riley, who was provided for, as above stated, in his grandfather’s will.

Edward B. Riley, after marrying, engaged in various pursuits in Woodstown and its neighborhood, without financial success, with the result that debts accumulated against him, and his father came to his relief and loaned him money and paid debts for him. So that, on the 11th of February, 1884, judgment by confession on bond and warrant was entered in favor of the father against the son, in the Salem circuit court, for the amount of $7,128 besides costs, and execution was issued on it and levied on the personal property of the defendant in execution and also upon the land in question.

Joseph K. Riley had previously set about, as' he declared, trying to prevent his son from spending the balance of his property, and tried to induce him to make a conveyance of it to him, Joseph K. This the son at that time declined to do, but as a compromise, on the 8th of February, 1884, conveyed through a third party the whole of the premises to his wife, the complainant, for the nominal consideration • of $1. The father, three days laterj procured from his son the judgment above mentioned, and then paid or settled all his outstanding debts. The situation, however, did not satisfy the father, as he had, or affected to have, fear that through the influence of the son over his wife the property would still be at his disposal. He, therefore,- brought further influences to bear on the son and his wife to convey the property to him, the father,- and that resulted in the conveyance of April 20th, 1885, now sought to be set aside.

In September, 1885, the father satisfied the judgment of record, and allowed the son to live upon the premises, substantially free of rent, during his lifetime. He was about sixty years of age when he died.

The promises and representations made by the father to the ■daughter-in-law, which constitute the contract, are proven by several witnesses besides herself and her husband, principally by a Mr. Holmes, a real estate, insurance agent and conveyancer in Woodstown. Mr. Holmes swears that the father applied to him to use ■ his influence with the son to get a deed to him for the farm, and for that purpose to make certain representations as to what he would do. In fact, this gentleman assisted the father in procuring the conveyance in the first place to the wife — ■ that is, the conveyance to the wife was not suggested in the first place by the father, but was the result of a request that he should convey to the father, and was in the nature of a compromise, the son preferring to convey to his wife rather than to the father. The conveyance from the son and wife to Holmes, and by the latter to the wife, was prepared by the father either in person or by his procurement. Mr. Holmes swears that the father told him at the start to tell Edward that if he would make him a deed for the farm, he would will it to him or deed it back to him again, and he would leave him the interest of $25,000 and his wife the interest of $25,000; that he thought that his personal property would amount to about $50,000, and that he (Holmes) made that statement to Edward. Soon after the title was vested in the wife, negotiations by Mr. Holmes with complainant, at the instance of the father, were continued, and Mr. Holmes swears that the father told him to tell Kate, the complainant, that he would leave his personal property, which would amount to about $50,000, at interest and give each one of them the interest of one-half, and he would see that they got a good title in the farm, back again, free of all encumbrance.

Another witness is Mr. Johnson, the father of the complainant, who lived in an adjoining township, and who was sent for by Joseph K. Riley to come and see him and consult about this affair. He swears that Riley asked him to use his influence with his daughter to procure a conveyance to him (Riley); that Riley said that he would give them each the interest of $25,000 a year as long as they lived, and at his death they should have the property back, and that on the strength of that lie advised his daughter to make the conveyance.

■ In addition to these two witnesses is the evidence of a colored witness, very much to the same effect, who was either present or within hearing in the next room at the time the conveyance was actually signed.

I am compelled by the force of this evidence, without relying upon either that of the complainant or her husband, which fully agrees with it, to the conclusion that the deceased did make these promises to his daughter-in-law, the complainant, on the strength of which she made the conveyance. He was either mistaken as to the value of his personal property, or he met with losses before his death, for it amounted to only about $23,000- net, and out of that he was in honor, if not in equity, bound to provide for his grandson, Joseph K. Riley, Jr., the $6,000 mentioned in his wife’s will. The result was that his personal property, suK jected to the trust of his will, amounted to only $1-6,000 or $17,000. He owned besides the land here in question a farm ■of forty.acres in- an. adjoining township, the -value of which is not fully stated. "Whether his pecuniary situation changed materially from the time he stated to Mr. Holmes that his personal property was worth $50,000, or whether he was then mistaken in his estimate of it, or was- making false assertions in order to -influence his son and datíghter-in-law, does not appear. .He disposed, in his will, of his real estate and the residue of his -personal estate precisely as stated in the bill, giving the beneficial .use of it to the children, with incidental benefit to the parents.

The bill, it will be perceived, does not allege the promise toreconvey the land, nor does it seek to enforce such a promise, ■although it is quite as clearly proven as the promise to set-'aside-$25,000 for the benefit of the complainant and $25,000 for the benefit nf her 'husband. The bill is based upon the failure of the testator to provide-' the two funds of $25,000 each, and the relief asked is a rescission and a reconveyance, and not an establishment of complainant’s right to the legacy of $25,000. If -complainant had asked for the establishment of such- fhnd for her benefit, such ■ relief, I think, -is practicable and could be granted. The personal property that remains, together with’the landed property, is ample for that purpose.

But it does not appear affirmatively, or even - inferentially, that taking the whole of the residue of the estate it is sufficient to establish the two’-funds of $25,000 each, one for the wife and the other for her husband. Now the wife had the? right to stipulate for a fund for her husband’s benefit. She would have had this right if it had been to a stranger, without benefit to 'her, but the stipulation' in favor-of her húsband was, in substance,'one for her own benefit, or át least might prove;so in the ordinary course- of events, and she is • entitled to treat it as an -integral-part 'of the contract. And the only question that remains is whether or ■ not the entire failure of the promisor to make any provision whatever in pursuance of his promise for the benefit of the complainant or her husband, -and the apparent inability of his estate to fulfill that promise, entities' her to "the particular remedy asked for, namely, a reconveyance of the land conveyed.

I do not infer from the proofs in the cause that the father practiced, or intended to practice, any actual fraud upon his - daughter-in-law. It is quite possible that at the time he made. the promise he was possessed of the $50,000, in personalty and, real estate, independent of the lands belonging to his daughter-, in-law, and he may have honestly intended at that time to per-, form his promise. The will of which he died, testate, was executed in November, 1893, only two months, before he died, and may have been the result of his observation, during the previous eight years, of the character and ability of his son for business,, He may have thought that, considering the then state of his. pecuniary affairs, the best thing he could do for his son’s family was to make the will he did, and it is by no means certain that his judgment in that regard was not accurate.

But, granting that the conduct of the deceased was free from all fraud, and that his judgment as to what was best for his son’s family ,was sound, the question still.remains whether or not he, had the right, under the representations and promises which he had made to his daughter-in-law, to make the disposition which, he did of the property in question. The land which she conveyed to him was her land, never had been his except.that he had. a life estate in it, both as tenant by the curtesy and as, devisee of his wife, but at his death it belonged absolutely .to her, and his devisees, have no right to retain, it against their mother, claiming, as they do, as volunteers, .he having failed to pay the. consideration which he agreed to pay, lest they shall themselves pay it.

I come to this conclusion with regret, but it seems to me inevitable. The case of Johnson v. Hubbell, 2 Stock. 332, decided by Chancellor "Williamson in 1854, seems to me to lead to that result. The doctrine laid down by the learned chancellor in the latter part of his opinion in that case has.never been, and I think cannot be, questioned. There a son had, at the request of his father, conveyed to his sister an interest in .real estate which descended to him by his mother, upon the promise of the father to make, a certain disposition of his real estate which would benefit both the son and his sister. Instead of doing so the father made, a different disposition of his property, which was injurious to both the son and the daughter, and for which the daughter was not in the least responsible, yet Chancellor Williamson held that it was inequitable for her to hold the title so conveyed to her by her brother. The language of the learned chancellor (at p. 343) is significant:

There are several objections interposed to this form of relief. It is said no fraud is imputed to any of the parties at the time of making the agreement, and no fraud is alleged to have been committed by Mrs. Hubbell since; that Mrs. Hubbell made no promise which was to be fulfilled on her part, and that she is not responsible for the non-fulfillment of the agreement by her father.
The fraud of the father was in not making his will and dividing his estate between his children. It does not divest the breach or non-fulfillment of the contract of its fraudulent character because the fraud was not meditated at the time the agreement was made. The fraud [the learned chancellor evidently uses this word here in the sense of inequitable conduct] of the daughter consists in retaining her brother’s land without consideration, which is against good conscience. It is to protect the complainant against this fraud that this mode of relief is proper. That Mrs. Hubbell made no agreement or promise with her brother that she would be responsible that the contract should be carried out, does not make it the less unconscionable that she should hold her brother’s land, conveyed to her under a family compact made for their mutual benefit, which has failed of execution through default of either of them, but of a third party. She accepted the land under the family arrangement. That arrangement has fallen through. The position of the complainant is of some consideration with the court. * * * Under such circumstances, to permit the sister to enjoy, without any consideration, a part of that inheritance which the complainant derived from his mother is unjust and a court of equity ought to prevent it.”

The complainant prays for a rescission of the contract, with the usual prayer for other relief. The rescission of the contract is not the relief to which the complainant is primarily entitled. The legal aspect of her situation is this: She conveyed property to her father upon his parol promise, at his death, to do a certain thing. This he failed to do. Her remedy is either by an action at law to recover damages for the breach of his contract, or in equity for the specific performance of the contract by the establishment of the two funds, and declaring the same to be a lien upon the land she conveyed, or, in other words, the enforcement of her vendor’s lien for purchase-money. Hence, her right to a reconveyance of the lands conveyed does not arise until there is a failure on the part of the present defendants to pay the purchase price. And it seems to me that if it should appear to the court that it is to the interest of these infants that the two funds of $25,000 each should be established by way of paying the complainant the consideration contracted for by the testator, the court would confine her to that relief. But it does not so appear. I am of the opinion that it is decidedly to the interest of the infants not to attempt the establishment of the two funds, even if it were practicable to do so, but to give the complainant, as an alternative relief, that which she prays for in her bill, viz., the reconveyance of the premises.

I will advise a decree accordingly, with costs to be paid out of the estate.