author: Grey, V. C.

text:
    Hannah L. Steward v. Sarah Knight et al.
    [Filed June 1st, 1901.]
    1. If a devise is expressed in indeterminate terms, yet if, from the whole will, it can be collected that the testator intended to give a fee, the devise will be construed to pass that estate.
    2. Where a testator has a fee-simple, and devises his whole estate, though bj' words not technically descriptive of a fee-simple interest, they will be held to convey that estate. The devise extends to pass not only the whole quantity of the testator’s property, but also the whole of his interest therein.
    3. Where there is a primary gift of property in fee with a gift over of the same property to other persons) to take effect upon the happening of a definite event, the first devise will be held to pass a fee-simple subject to be defeated by the happening of the named event, and the second gift to be an executory devise, taking effect upon the happening of the named event.
    4. The words “child or children,” when used in a will as definitive of a class to whom a gift is made, are words of purchase, and primarily will be held to mean descendants in the first degree. Those words may be used as words of limitation, and, when so used, will be construed to mean descendants generally, if that appears from the will to have been the intention of the testator.

      On bill to quiet title. Answers and agreed statement of facts.
    The complainant is the owner and possessor of a farm in Lower Penn’s Neck, in Salem county, to an undivided third part of tvhich the defendants claim title. She files her bill under the act to compel the determination of claims to real estate in certain eases, and to quiet title to the same. Gen. 8tat. p. 3486. She alleges that the defendants falsely claim to own her farm, and prays that they may set forth their title; that the rights of the parties may be adjudicated and settled by the decree; that it may be determined that her title is perfect, and that the defendants have no interest in the premises.
    There are two answers and an agreed statement of facts, the substance of which is hereinafter set forth. There is but one question in dispute between the parties, and that is the character and extent of the estate which James B. Sinnickson received under a devise in the will of Jane Sinnickson, which is in these words:
    “I, Jane Sinnickson of the township of Lower Penn’s Neck, Salem county, and state of -New Jersey, being of sound mind and memory, do make and publish this my last will and testament:
    “I give and bequeath all the residue of my estate, after payment of debts, both real and personal, to my nephew, James B. Sinnickson, and in case he shall die without children, my will then is that both my real and personal estate be divided equally among his surviving brothers and sisters.
    “In witness whereof, I have hereto set my hand and seal the 26th day of May, 1823.
    her
    “JANE X SINNICKSON, mark.
    “Signed, sealed, published and declared by the said Jane Sinnickson to be her testament and last will, in the presence of us,
    “Neh Gabrison, “Charles Swing, “Seneca Sinnickson.”
    Jane Sinnickson was, at the time of ber death, the owner in fee of an undivided one-third part of the farm of which the complainant is now in possession. This undivided third portion passed under the foregoing devise. Jane Sinnickson’s will was proven in Salem county surrogate’s office on June 16th, 18'23.

      James B. Sinnickson was born in 1811, and died September 19th, 1898. He entered into possession under the devise to him, and subsequently purchased the residue of the farm. Before 1862 he had acquired the entirety of it, and then conveyed all of the premises to one Benjamin Lloyd, with covenant of general warranty. By intermediate conveyances from Lloyd the complainant derives her title to the whole of the farm. Hnder these deeds she came into its possession and now holds it. By James B. Sinnickson’s marriage there was born to him but one child, a daughter, named Mary, who afterwards married William Palmer. This only child died April 1st, 1888, predeceasing her father. She left her surviving her six children—James L. Palmer and others, who are defendants in this suit. They are grandchildren of James B. Sinnickson and have survived him.
    Sarah Knight, Seneca Sinnickson and Richard B. Sinnickson are the sisters and brother of James B. Sinnickson, who have survived him. They also are defendants in this suit.
    All of the claimants derive their title from the will of Jane Sinnickson, and all their contentions turn upon their different constructions of the meaning of that will.

      Mr. Thomas G. Hilliard, for the complainant.

      Mr. William T. Hilliard, for the defendants Palmer et al.

      Mr. William J. Baches, for the defendants Knight et al.
   Grey, V. C.

There are several incidents appearing on the face of the will and in the relations of the testatrix to her beneficiaries which are beyond dispute, and which may throw some light upon the intentions of the testatrix as expressed in the will. It is apparent that the testatrix intended to dispose of her whole estate, real and personal, absolutely. It is also plain that she intended to prefer James over his brothers dnd sisters, and to give her whole estate to him. No part was, in the first instance, by her given to anyone else. At the time she (testatrix) made her will J ames was a boy twelve years old, and, being of such tender age, the possibility that he might not even live to have children was obviously within the view of the testatrix. Bearing these incidental circumstances in mind as within the contemplation of the testatrix when she made her will, the different contentions of the parties may be considered.

The first question to be settled is whether the devise to James passed only a life estate or an estate in fee of some character.

It should be noticed that in the devise to James neither the word "heirs” nor anything equivalent to it is used to define James’ estate. There may be some doubt whether the statute of August 26th, 1784 (Rev. L. p. 60, which appears in Gen. Stat. p. 3763 § 35 et seq.), which declares that estates given by will in general terms, without the use of the word "heirs,” or its equivalent, should pass a fee, is applicable to the devise now under review. That statute declares itself to be applicable only when in the will to-be affected by it there is “no further devise of the devised premises after the decease of the first devisee.” In this case, if James should die without children, the property was given over to his surviving brothers and sisters. On the point whether such a gift over prevents the application of the statute, the decisions are not entirely harmonious. In Den v. Allaire, Spenc. 7, 8, there was a primary devise to Charles, in which no words of inheritance were used, and then a subsequent limitation over in these Avords: “It is my will that in case either of my sons before named should die Avithout issue, that his share be equally divided between my surviving sons,” &e. The supreme court held that, although no words of inheritance Avere used, the primary devise to Charles Avas a fee, under the statute of August 5th, 1784. That court did not appear to consider that the subsequent limitation over in case Charles died Avithofit issue Avas such a further devise as to prevent the application of the act of 1784. See Spenc. 8, 24.

It may be that the learned judges AA'cre of opinion that as the limitation over was not solely dependent upon the death of Charles, but required also that he die without issue, and that his brothers or sisters should survive him, the statute might apply and enlarge the undefined estate into a fee. They did not discuss this phase of the case, but declared that the statute enlarged tbo devise to Charles into a fee. In a very recent case, presenting on this point the same incidents, Chancellor McGill took a different view. In Brooks v. Kip, 9 Dick. Ch. Rep. 468, there was a devise of real estate to the testator’s sons John and Albert, by words which, by the aid of the statute of 1784, would have passed a fee. In a subsequent sixth clause were these words:

“I do order that the real estate given to John and Albert, if they should <lie, or either of them, leaving no child or children as lawful heirs, then the said real estate * * * shall descend to my other children,”

The chancellor held that this later clause was such a further devise at the death of John that the statute of 1784 did not .apply to pass a fee.

The words of the statute declaring its inapplicability in case there is a further devise after the decease of the devisee are without other qualification, and seem, to deny its aid to any first devise given in general terms in all cases where there is a further devise after the decease of the primary devisee.

In the present case, however, the primary devise is not dependent upon the statute in question to enable it to pass a fee-simple estate. Where the primary devise is expressed in general terms in its definition of the estate given, yet if, from the whole will, it can be collected that the testatrix intended to give a fee, the devise will be construed to pass that estate. This result follows where the testatrix has a fee, and by the terms of her will, as in this case, gives her whole estate, though in undefined terms, to 'her devisee. Her gift intends to pass, not Only the whole quantity of her propertjr, but also the whole of her interest therein. She has an estate in fee and she gives an estate in fee. Den v. Allaire, Spenc. 8; Carter v. Gray, 13 Dick. Ch. Rep. 413, and cases there cited.

The primary devise to James B. Sinnickson must therefore be held to have passed to him a fee-simple estate.

If, however, subsequent words qualify or limit the original gift, a devise which would, without them, pass a fee-simple, may be reduced so as to pass only a less estate. Den v. Taylor, 2 South. 417. The defendants Palmer contend that the words attached to the devise to James, “in case he shall die without children,” must be read as if they were “die without issue,” and they insist that they must operate to limit the generality of the gift c-f a fee which would go to James and his heirs general to a devise to him and those particular heirs who might be his children; in short, to him and the heirs of his body, the technical words of an estate tail. They further claim that the effect of such a devise to James and of the devise over was to create an estate tail in James; that the statute of June 13th, 1820 (Rev. L. p. 774 § 2), now the eleventh section of the statute of descents, operated upon this estate, and gave to James a life estate only, and upon his death to his grandchildren, the defendants James L. Palmer and others (who are the issue of his deceased child, Mary Palmer), a fee-simple.

If the devise to James B. Sinnickson should be held to have vested in him an estate in fee-tail, the claim of these defendants should be sustained, for the statute of June 13th, 1820 (Rev. L. p. 774 § 2), applies to every possible cáse in which an estate tail is called into existence (Redstrake v. Townsend, 10 Vr. 378), and executes the estate into a life interest in the first taker and a fee-simple in his children or grandchildreq.

But even if it be declared‘that, in using the words “die without children,” the testatrix meant “die without issue,” it does not follow that the estate James received was a fee-tail. Whether such a devise has this effect depends upon the point whether the will indicates that the testatrix intended the second devise to take effect upon a definite failure of the issue of the first devisee, or upon an indefinite failure of such issue; that is, whether she meant James’ brother and sister to take in case he had no'issue living at some indicated period—as at his death-—which would be a definite failure of issue, or only at some uncertain future period, when all James’ descendants might have become extinct. If she intended the former, then such a primary devise has been construed to convey a fee-simple, subject to be defeated by James dying without issue living at the time of his death; if she intended the latter, then, inasmuch as there is a primary gift of an estate in fee to James and' his heirs, and as the law cannot contemplate a failure of heirs general, it is held that the testator, by the use of the subsequent limiting words, must have intended the property to go to the primary devisee and the heirs of his body, and not to his heirs general. Den v. Taylor, 2 South. 418. The statute of June 13th, 1820, which executed all estates tail would, in case the latter construction be adopted, give a life interest only to James and a fee-simple to his grandchildren, the Palmers, who survive him.

This will-was made in 1823, and the testatrix died the same year. A will is of iio force until the death of the testator. It then speaks for the first time. It must be construed according-to the state of the law at the time when it takes effect. This was, of course, before the act of March 12th, 1851 (Gen. Stat. p. 3761 § 25), which declares that words which theretofore imputed an indefinite failure of issue of any person should thereafter be construed to mean a failure of issue in the lifetime or at the death of such person, and not an indefinite failure of issue, unless a contrary intention should appear by the will.

The English courts have tended to hold the words “dying without issue,” and words of .like import, to mean an indefinite failure of issue, unless the indications that the testator intended the limitation over to take place upon a definite happening were of a positive character.

In this country the courts, even before statutory enactment on the subject, have been more ready to discover a purpose to vest the limitation over upon a definite failure of issue. In this state the question as to what words will suffice to indicate a definite failure of issue has, I think, for the purposes of this case, been settled by the decisions'hereinafter cited.

Whether in this case the testatrix intended thé limitation over to take effect upon the happening of a definite or an indefinite event must be determined from the language of the will, considered from the point of view of the testatrix, of the pertinent circumstances which surrounded her. The testatrix gave the second devise in these words:

“In case he [James] shall die without children, my will then is that both my real and personal estate be divided, equally among his surviving brothers and sisters.”

She thus refers to those of James’ brothers and sisters who, at his death, should survive him. They were then, in case there was a default, to have and enjoy the estate. This was, therefore, a gift over at a fixed time, upon the happening of a prescribed event—the death of James without children, leaving a brother or sister him surviving. This view is also supported by the fact, apparent on the face of the will,. that the gift over includes personal propcrtjq the enjoyment of which by the brothers and sisters the testatrix evidently contemplates as a possibility. This she could hardly have expected if it were postponed to a period so probably remote as the time when all of James’ descendants might become extinct. If the words of condition were “die without issue,” instead of “die without children,” they would still be held to import a failure of issue when James died leaving any of his brothers or sisters surviving, and not a failure when the descendants of James' might, at some uninclicated future time, become extinct.

This view accords with the principles enunciated in the following cases, in which a limitation over in a second devise to survivors, in case the first taker died without issue, was held to intend a definite failure of issue. Den v. Allaire, Spenc. 10, where the words were “in case either of my sons should die without issue, that his share be equally divided between my surviving sons,” &c. This ease appears to have settled the law on this point in this state. Seddel v. Wills, Spenc. 225; Den v. Howell, Spenc. 415; Kennedy v. Kennedy, 5 Dutch. 188. Den v. Snitcher, 2 Gr. 53, decided in 1833, also touched upon the question. (In this last case cited James B. Sinnickson and his brothers and sisters were parties.)

These decisions should control the construction of the words used in the present will. The gift over must, therefore, be held to be limited upon a definite, and not an indefinite, failure of issue, and to give to the first taker an estate in fee, subject to be defeated upon non-performance of the condition imposed, and not a fee-tail executed by the statute. This construction also operated upon the gift over, to make it an executory devise, becoming effective, as is permissible in wills, upon the defeat of the precedently-given fee-simple estate, and not a remainder, eontingent upon a happening (an indefinite failure of issue) .so remote that the law will not recognize and enforce it.

For these reasons the claim of the Palmer children, that James’ estate, under the devise, should be construed to be a fee-tail, executed by the statute of June 13th, 1820, to giye him a life estate and the fee-simple to them, cannot be sustained.

The defendants Sarah Knight and others, the surviving brothers and sisters of James B. Sinnickson, accept the construction that the devise to the latter passed a fee-simple estate, subject to bo defeated upon non-performance of the condition that he die leaving children. They, however, insist that James did not perform this condition which the testatrix imposed, and that his fee-simple estate has, for that reason, been defeated, and that the limitation over to them, by way of executory devise, has become executed. They contend that the fact that James had a child— Mrs. Palmer—and that she had six children-, all of whom survived James, their grandfather, is of no significance, because they insist that the testatrix required that James’ own children should be living when he died, and they say if James had any number of children, if they all happened to die before he did, the estate of James was defeated, notwithstanding at the time of his death any number of grandchildren survived him.

It is obvious that this contention depends entirely upon the meaning given to the word “children” as used by the testatrix in her will. In their 'usual sense “child or children” are taken to be words of purchase; that is, they are understood to bo used to designate a class of persons selected by the testator to receive his gifts. When so used, these words, being descriptive of the recipients of the testator’s bounty, are understood in their primary sense, and they will not be construed to mean descendants, unless there is something in the context to show that the testator intended that children should include grandchildren, or unless the provisions will be inoperative without such a construction. Brokaw v. Peterson, 2 McCart. 198; Feit’s Executors v. Vanatta, 6 C. E. Gr. 85, citing cases.

I have examined the very full line of decisions cited in this last case, and find that in each the question presented was whether grandchildren should be permitted to take, either by sharing with. or by substitution for, children, in eases where there were children in existence, who accurately and fully answered the description as such, prescribed .by the testator in his will. In those instances children in existence were held to be entitled to the exclusion of grandchildren, -who claimed by substitution for, or in representation of, deceased children. Brokaw v. Paterson, supra, is claimed by defendants’ counsel to control the case in hand as to the intention of the testatrix in using the words “die without. children.” But the Brokaw decision turns upon the question whether a grandchild should be allowed to take a share which, by. the will, was given to a child. This is one of the cases where the word “children” is used as a word of purchase, defining a class who should take and excluding persons not in that class. They select the class which shall receive the testator’s gift, and when so used must be exclusive of all those not within the class. But these words may be used by the testatrix, not as words of purchase, selecting a beneficiary, but as words of limitation, defining or limiting an estate given. If it is apparent on the face of the will that the testatrix did not use them as words' of purchase,'they should be given.such construction as will carry her express intention into effect.

The ease of Sherman v. Sherman, 3 Barb. 387 (Supreme Court), is relied upon by the defendants as an authority pertinent to the question here raised. In that case there was a devise to Humphrey in fee, and if he should die without child or children, then over, &e. Humphrey died without children. But the case is wholly inapplicable to that under consideration, for Humphrey does not appear to have died leaving any grandchild, to raise the question here in dispute, which is, whether James’' dying leaving grandchildren was a performance of the condition which would save the estate given to him in fee from being defeated. In the Sherman Case the question was whether Humphrey took an estate in fee-simple absolute, or whether the limitation over, by way of executory devise, in case he died leaving no child, was good. This was the sole question. The case shows that Humphrey took a fee, subject to be defeated by his dying without’ children, with an executory devise over if that event happened. Humphrey does not appear to have left either children or grandchildren, but he attempted to devise the lands as if he owned a fee-simple absolute, and the court correctly held that the limitation over was good and had vested in the secondary devisees.

The recent case of Brooks v. Kip, 9 Dick. Ch. Rep. 462, also approaches the subject-matter here under consideration, but does not touch the essential point. In that case there was a devise to Albert and John in the fourth item of the will, with a limitation over in the sixth clause—

“if they should die or either of them leaving no child or children as lawful heirs, then the said real estate so bequeathed to them or either of them, (or the value thereof) shall descend to my other children share and share alike,” &c.

The devise to John was intermediate in its terms, and, as expressed, would pass only -a life estate. The further devise at the death of John was held to prevent the application of the statute of 1784 (Gen. Stat. p. 3763 § 36) to enlarge the interest of John into a fee; but the imposition of charges upon John by the will was held to have that effect. John died without issue. This incident prevents this decision from having any value as a precedent in the case under discussion. The dispute in the Brooks v. Kip Case was not as to the character of John’s estate, which was conceded to be a fee-simple conditional, which was defeated by his death without issue, but as to the persons who were included within the devise over, under the phrase “my other children.” In that case there were neither children nor grandchildren of John to present the point whether a fee-simple, which was subject to be defeated by a dying without children, was, in fact, defeated If the devisee died leaving grandchildren, so that-the question here mooted was never either raise'd or considered.

In the case under consideration the limitation is “but in case he [James] shall die without children,” then over, &c.; that is, James’ fee-simple estate shall be defeated in case he die without children. This devise gives no estate to James’ children. As it is here used, the word “children” does not select or designate a class who are to receive anything from the testatrix. It is therefore not to be here understood as a word of purchase, but of limitation, used by the testatrix to affect the estate given to James. It does not define the estate devised to James that is fully characterized by the previous words of the will to be a fee. The phrase is forceful solely to prescribe a condition, upon the happening of which James’ fee-simple estate should be defeated. The numerous decisions holding that the words “child” or “children” must primarily be taken to be words of purchase, meaning strictly children in the first degree, are therefore of little aid in this case, where the face of the will shows that the word “children” is used as a word of limitation.

The real question to be determined is what condition did the testatrix intend to impose upon James by the words “in case he shall die without children,” the non-performance of which should defeat his fee-simple estate ?

The defendants Mrs. Knight and others insist, with much energy, that the testatrix intended James’ estate to go over if his children predeceased himj even if he left grandchildren; that the condition could only be performed by James dying leaving him surviving children whom he had begotten; that leaving children in the larger sense of descendants was not a performance of this condition.

In considering this claim the first point to be settled is whether the testatrix’s intention was accomplished by James having children born to him.

The testatrix says in case James “shall die without children.” Is the condition performed by James having children at some time before he died ? Or must he leave children at the time of his death?

This question as to the time when non-performance of such a condition defeats the precedent estate has been passed upon in several cases in this state, where the phrase “dying without issue” has been held to mean dying without leaving issue living at the death of the first taker, following Pells v. Brown, Cro. James 590. See collation of cases and discussion in Den v. Allaire, Spenc. 11; Wurts v. Page, 4 C. E. Gr. 365; Seddel v. Wills, Spenc. 223.

The phrase “die without children,” taken in connection with' the limitation over to the surviving brothers and sisters of the first taker, must, in analogy to the above-cited cases, be held to mean that the estate was to go over in case, at the time of J ames’ death, he left no children.

The only remaining question is what did the testatrix mean by the words “die without children.” What did she require to be done in performance of the condition she imposed. Did she mean, in case James’ children should happen to die before him, to take away the preference which she had given James, though at the time of his death he might leave, as, in fact, he did, numerous grandchildren? On this point this case is one of first instance, so far as most careful examination by counsel and by myself has been able to discover. Cases are reported in which a fee is devised conditioned to be defeated in case the devisee die without children; but in none of them has the exact circumstance happened which here appears, for in none has it been claimed that the death of the devisee leaving no child, though he did leave grandchildren, has defeated his estate.

In ascertaining the testatrix’s intention in the use of this phrase'“in case he shall die without children,” the language of the will must be considered in the light of the circumstances which surrounded the testatrix at the time her will spoke. James at the time was a boy, but twelve years of age. No children were then born to him. The testatrix could not, when she made her will, have contemplated an indirect benefit to any known child of James’, as distinguished from any other of his descendants, for, as stated, at that time James had no children. She actually gave to James all that she had, and obviously intended to prefer him to all his brothers and sisters. It is unreasonable to believe that she intended to defeat her expressed preference, by making her gift of her whole estate to her favorite nephew liable to defeat by a chance which must have been almost fantastic in its uncertainty. Taking the words literally, James’ estate would have been defeated if he died leaving but one child, for, in that ease, upon defendants’ contention, he would have died without children. Even allowing the requirement that he leave children to have been fulfilled if he died leaving one child, but holding the condition to be unperformed if this child predeceased James, and the testatrix’s preference for James would still be defeated, although this child might have left many children, the grandchildren of James, all of whom might survive him. That is the fact in this case—James’ only child predeceased him, hut his grandchildren have all survived him. As there was no child of James’ in existence when the will was made, or when it spoke, whose living or dying the testatrix could have had in mind, she evidently used the word “children” in the broad sense of descendants—she meant if James, at the time of his 'death, left no descendants, iris brothers and sisters should take.

This was the construction given to the words “die and leave no child or children” by Lord Ellenborough, delivering the opinion of the king’s bench in Doe v. Webber, 1 Barn. & Ald. 713. In that case the devise was to “M. H. and her heirs forever, and in case M. H. shall happen to die and leave no child or children,”, then over in fee to J. B. The lord chief-justice, speaking for the king’s bench, declared that this was not an estate tail in M. H., but a fee, with an executory devise over to J. B., in case M. H. died leaving no issue at her death. “Where the intent requires it, the word ‘children’ has not been confined to the immediate descendants, though that is the ordinary and proper sense, but has been extended to all descendants, whether mediate or immediate.” This was a case of a devise held to be a fee-simple, subject to be defeated by non-performance of a condition that the devisee should happen to die and leave no child or children. The king’s bench held that the intention of the testatrix to use the word “children” in the sense of “issue” of the first devisee was manifest, and that, if that devisee died leaving grandchildren, it was a fulfillment of the condition.

In Doe v. Simpson, 3 Man. & G. 933, in the exchequer chamber, brought up on error from the common pleas, there was a devise to the testator’s son J. S., his heirs and assigns forever, but if it should happen my said son J. S. “shall die without- leaving any child or children,” then over, &c. The case turned largely upon the peculiar characteristics of a copyhold estate, but Lord Chief-Justice Denman held that the words “child or children” were used in the seirse of “issue” generally. lie commented upon the opinion of Lord Ellenborough, in Doe v. Webber, and declared that, although that decision was not necessarily required, and therefore could not be treated as an absolute authority, yet it was certainly entitled to very great attention. He further said: “The extreme improbability that the testator, in the case before us, could have meant upon the mere accident of his having no grandchildren living at the death of his son, capriciously to disinherit his remote issue, seems, of itself, a strong ground for construing the word ‘children’ in the sense of ‘issue’ generally.”

In Parker v. Birks, 1 Kay & J. 156, there was a devise to W., a nephew of the testator, and his heirs, but in case he should die without child or children of his body, lawfully begotten, then over. Sir 'William Page Wood, vice-chancellor, commenting on Doe v. Webber, ubi supra, as to the holding there made, that dying in default of children meant in default of issue, said, “so far I agree.” Sir William further held that, in the case before him, W. took a fee-simple, subject to be defeated if, at his decease, he left no issue living.

Upon consideration of the whole case, the devise to James B. Sinnickson must be held to have passed to him a fee-simple estate, subject to be defeated if he died leaving no descendants: He died leaving six descendants, the children of his daughter, Mrs. Palmer, and thus performed the condition which made his estate a fee-simple indefeasible.

The result is that the complainant, Mrs. Steward, who holds, by sundry mediate conveyances, the fee-simple estate of James, is entitled to the relief prayed for in her bill of complaint.

I will advise a decree accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Hannah E. Kelley v. Augustine B. Repetto et al.
    [Filed June 7th, 1901.]
    1. Where a party having an equitable interest in lands assents to and aids in the disposition of the legal title thereto, she is estopped, after the purchasers from the holders of the legal title have by her inducement changed their position, from asserting her equitable claims upon the legal title.

      2. An attorney is bound to deal with his client with frankness, and to render her an itemized account of his receipts and disbursements of her moneys paid to him.
    On bill, answers and proofs.

      Mr. Enoch A. Iligbee, for the complainant.

      Mr. Clarence L. Cole, for the defendants.
   Grey, V. C.

(orally).

The testimony has been taken over two days and the cause has been fully argued by counsel. I think 1 can dispose of it now.

The complainant files a bill as the equitable owner of one undivided third part of a tract of land known as block, or section, 92, in South Atlantic City. The legal title to this block, at the time when the complainant’s interest in it attached, was in a man by the name of Samuel Kirby. Mr. Kirby had made an agreement to sell this property to the defendants William Bowker and Augustine Eepetto. They, holding the equitable rights under Kirby’s contract, agreed that the complainant should be admitted to an equal partnership with them, contributing an equal share of the purchase-money, which she subsequently did, . There were some intermediate transactions, suggesting an interest in other persons, which were only partially carried out. They finally resulted in the holding of equitable rights in the property by the defendants William Bowker, to the extent of a one-third interest, Augustine B. Eeppetto, of another one-third, and the complainant, Hannah E. Kelley, of the remaining third. In actual fact, the property was disposed of by these equitable owners before Mr. Kirby executed any deed to them. Kirby subsequently conveyed the block (No. 92) to the New York and Atlantic City Navigation and Pier Company, which corporation received the conveyance as a mere trustee for the equitable owners, according to their several shares.

The bill alleges that Mrs. Kelley was deceived, in that she was led to believe that the equitable title owners were themselves to receive a conveyance of the legal title, the effect of which would have been to give 'to her an undivided one-third part on the face of the paper title. No one has ever disputed her ownership of a one-third interest in fact.

The weight of the testimony goes to show that Mrs. Kelley was neither misled nor cheated in the making of the deed by Kirby to the New York and Atlantic City Navigation and Pier Company. When Mrs. Kelley says that the deed was made without her knowledge and consent, she makes a mistake. There are several witnesses who contradict her, and show that she was not only previously informed of the intention to put the title in that company, but she was consulted on the point, and approved of that disposition of the property as an easy way to hold it for ready sale and conveyance, in accordance with the purpose of the parties interested, avoiding the delajrs and vexations attendant upon the making of deeds by several owners. There is nothing shown in the proofs which indicates that any associate of Mrs. Kelley was, at any time, actuated by a disposition to do her any wrong. The weight of the testimony, part of which is that of disinterested parties, conclusively shows that the title was put in the name of this company by her'assent. Mrs. Kelley does hot repudiate the sale made by the pier company. She does not dissent either as to the price at which or the persons to whom the sale of the land' has been made by that company. What she. insists upon is that she never assented to the placing of the title in the name of the pier company, and she wants the legal title to the undivided. one-third part of the property decreed to be in her name, so that she may be a necessary grantor to McGraw and McConaghy, who have purchased from the pier company.

This is an afterthought on the part of Mrs. Kelley, and appears to have been occasioned by her differences with Mr. Repetto. Her assent to the putting of the title in the pier company, and her activity in aid of the sale of the property afterwards, estop her, at this late day, to set up an equity which will enable her to defeat the title agreed to be conveyed to McGraw and McConaghy by the pier company before she filed her bill. No wrong has been done to Mrs. Kelley by the putting of the title in the name of the pier company. It has been shown that she assented to that, and subsequently aided in making sale of the property to MeGraw and McConaghy. Now that the parties have all changed their positions, she is estopped to set up a right, unsubstantial in its character, but which might be used to the injury of persons induced by her conduct to purchase the lands in question.

The result of that holding is that, as against McGraw and McConaghy, who are the present holders of the legal title under the carrying out of the contract for sale made with them, Mrs. Kelley has no equity. Their attitude is entirely justified; they dealt with the legal title at the time in a way in which they were entitled to deal with it, and have paid their money in accordance with their agreement made with the aid and assent of all the equitable owners, Mrs. Kelley included. The bill of complaint must be dismissed as to McGraw and McConaghy, with costs.

The bill shows, and the answers admit, that Mr. Eepetto alone has the money of Mrs. Kelley. Mr. Bowker is a party only as to that phase of the bill which alleges that he joined in a fraud, whereby the title was put in the pier company to Mrs. Kelley’s disadvantage. The complainant’s proofs fail in that respect, and therefore the bill must be dismissed as to Mr. Bowker, with costs.

The New Ybrk Navigation and Pier Company is in the same attitude as Mr. Bowker, and as to that defendant the bill must be dismissed, with costs.

As to Mr. Eepetto, his answer shows frankly that this woman’s money has been received by him as her attorney. He says he has always been willing to account to her for these moneys. He claims that he has rendered her a statement of his receipts and expenditures in her behalf in this transaction. The evidence shows that a memorandum typewritten statement was sent by Mr. Eepetto to Mrs. Kelley, which contained, intermingled with other dealings between them, an exhibition of part of Mr. Eepetto’s transaction for her in this matter. Mrs. Kelley’s present counsel in this cause called upon Mr. Eepetto with this statement. The latter then admitted that, since the statement had been sent, there had been substantial payments made to him, not included in the statement. He also flatly refused to permit Mrs. Kelley, or anyone .chosen by her,' to be present at the final settlement then about to be made with the purchasers of the property, declaring that “she had entrusted this matter to him, and he didn’t propose to let her in now—he did not have to.” Shortly after this conversation, and while the parties were in this attitude, the bill in this cause for an accounting was filed by Mrs. Kelley.

Mr. Repetto does not deny that his relation to Mrs. Kelley in this transaction was that of attorney to client. He does not deny that this relation obliges him to account to her for her moneys which he has received. What he claims is that he had, before the bill was filed, actually accounted to her for her moneys in his hands. The evidence satisfies me that he had not. He knew, before the bill was filed, that Mrs. Kelley was dissatisfied with his conduct in the transaction. The typewritten memorandum cannot be taken to be an accounting for the matter now in dispute, as it does not undertake to show the amount of money in hand when this suit was commenced, and is quite insufficient, in itself, so to define the amount due Mrs. Kelley that she could, on it, have begun a suit at law at the time when this suit was brought. There is no pretence of-any other accounting. Mr. Repetto does not deny that Mr. Higbee, who called up him just before this suit was begun, in behalf of Mrs. Kelley, was then her employed attorney, authorized to act for her in this transaction. Mr. Repetto claimed the right, because of his previous employment as Mrs. Kelley’s attornejr, to prevent his client from participating in a settlement in which ho admitted she had an interest. His position was, in fact, hostile to Mrs. Kelley, and was an unjustifiable assumption of power. She could not sue him at law for the moneys he had received for her, because she could not know, until he had rendered an account to her, what amount was actually due to her. The same condition of affairs is yet existent. A final disposition of the property has been made to McGraw and McConaghy. Mr. Repetto admitted that he had received the purchase-money. He was on the stand as a witness for himself, and gave testimony as follows as to this purchase-money:

“Q. Xou have never paid Mrs. Kelley her part of it?
“A. No, I have offered to do so.
“Q. How much is there coming, according to your calculation?
“A. X don’t know; I could not say now.”
“Q. When did you offer to do so?
“A. I said to Mrs. Kelley, ‘any time that you are willing to sign a quitclaim deed, so that McGraw and McConaghy will get a clear title, I will settle immediately ; fix your time.’ ”

It is evident Mr. Eepetto had not, at the time oí the filing of the bill of complaint in this cause, nor has he since, made up an account of the moneys due from him to Mrs. Kelley in this transaction, and he certainly had not rendered to her any such account as would enable her to sue him for those moneys in a court of law. His relation to her was fiduciary, requiring from him entire frankness and candor. She was entitled to have from him such a statement of account as definitely showed the sum due to her. She did not forfeit this right because her conduct Avas mistaken and vexatious. She had no legal title to the property sold, and could not demand the purchase-money from the purchasers, and had no status to sue them at laAV. She had assented to the sale, and had no equitable claim against them. She can only get her share from Mr. Eepetto, avIio admits he has received it for her. He has paid out part of it, rightfully, in discharge of costs, expenses and, by Mrs. Kelley’s direction, of her debt to BoAvker, but how much remains Mrs. Kelley does not know. If she sues Mr. Eepetto at law, she does not know Avhat is due, and a ready reply can be made that Mr. Eepetto holds the money in trust, with an unsettled amount of costs, expenses and payments chargeable against it, and no account stated. Under these circumstances, Mrs, Kelley has a right to have a statement of the account from Mr. Eepetto, to have the items of receipt and disbursement stated, shoAving Iioav much of her money has been taken to pay her debt to Mr. BoAvker and Avhat Avere the expenses incidental to this transaction, and definitely fixing the balance due to her.

I will advise a reference to a master to state such an account.


author: Grey, Y. 0.

text:
    Martha A. McMullin et al. v. Sarah N. Doughty and John D. McMullin, administrator of John H. Doughty.
    [Filed July 10th, 1901.]
    Objections by the defendant to the report of commissioners in partition reviewed and report sustained, for reasons stated in the opinion.
    On bill for partition. On motion to quash report of commissioners and proofs taken thereon.

      Mr. John D. McMullin, for the complainants and for himself as administrator.

      Mr. Herbert A. Drake, for Sarah N. 'Doughty, defendant.

      Mr. William M. Clevenger, for the commissioners and for Frank Middleton, the surveyor.
   Grey, Y. 0.

(orally).

This is a suit in partition between Martha A. McMullin, the owner of an undivided one-fifth part, and Sarah N. Doughty, the owner of four undivided fifths, of what is known as the “Doughty estate,” lying in Atlantic county. The property consists largely of “pine land,” and includes a sawmill, village and a millpond, a mansion-house and the attendant tenant-houses of the workmen, some gravel pits and a wide expanse of pine land and small timber, and also several outlying lots, unconnected with the great tract. Touching these outlying lots there is little dispute. The business of the sawmill seems to have decreased in recent years. . The Doughty estate also includes, in the outbound description of the great tract, several pieces of property, which had cither been sold olí by General Doughty in his lifetime, or by his heirs since his death, or which General Doughty did not own at the time of his death.

The estate is very extensive in its superficial area, covering, in its entirety, something more than fourteen thousand acres. The bulk of it lies together, and is traversed by the main line of the Camden and Atlantic railroad, by the main line of the Philadelphia and Atlantic City railroad, is_ approached on its southwesterly side, within a mile or two, by the main line of the West Jersey and Atlantic railroad, and the .northeasterly corner of it is crossed by the Brigantine branch of the Philadelphia and Atlantic City railroad running to Brigantine Beach. The property, speaking of it generally, is traversed by a number of common country roads. Running almost parallel to the Camden and Atlantic main line tract is what has been spoken of in the testimony as a state or county road, built under the Road Improvement law of the state, by the state and county together. This highway is said to be a first-rate road, and leads in a general northwest and southeasterly direction across the estate. It is probably the most traveled of any of the roads which traverse the property.

The commissioners were appointed for the purpose of dividing these lands by actual partition among the owners, according to their several interests in value. They have reported what they deem to be a just and fair partition according to value, and their action has been made the subject of objection by the defendant Sarah N. Doughty, and a motion is now made, upon the coming in of the report, to quash the report, upon stated grounds. It is unnecessary to restate the testimony at length, either that taken before the commissioners on their partition of the property or that given here in support of the motion to quash.

The objections to the report have been succinctly stated by the defendant in two separate papers, one in somewhat general terms, the later one naming specific acts alleged to indicate partiality and misconduct of the commissioners, to the disadvantage of Miss Doughty, the defendant. I will first consider these objections to the conduct of the commissioners.

The first ground of objection is that the commissioners were not sworn in (as the defendant claims they were directed to be) by the vice-chancellor who made their appointment. The order of the vice-chancellor which directed the commissioners to be sworn does not require them to be qualified before him. Conversations between the vice-chancellor and the counsel at side bar relative to the conduct of business have no obligatory force. I have no recollection as to what was actually said by me as to the swearing in of the commissioners. It is wholly unimportant whether they were sworn in before the vice-chancellor or before a master in chancery, as actually happened in this case. The first objection is of no significance, and is overruled.

It is sought to give this matter some importance, in framing the defendant’s criticisms of the report, by making it the basis of the second objection, taken by the defendant at the time the commissioners were sworn in, to the effect that the defendant then remonstrated because they were not sworn in as the vice-chancellor had directed. The second objection shows no reason for rejecting the commissioners’ report, and is overruled.

The third criticism is based upon the same suggestion'—that out of the colloquy then had between the defendant and the commissioners, or between the defendant and Commissioner Clevenger, the latter objected to the presence of the defendant at the next meeting of the commissioners; that the defendant took such objection to be a refusal to permit her to be present, and did not attend.

I have looked over an extended correspondence between Mr. Clevenger and Mr. Drake, the counsel for the defendant, and I find there was an expression of disinclination on the part of the commissioners to have either of the parties present. It is but just to all to say that there had previously been indicated in this cause a very considerable amount of feeling between the parties—complainant and defendant. It is not difficult to suppose that the commissioners desired, in performing their duty, to be relieved from friction which might develop if the parties were present at all the meetings of the commissioners. This expression of a wish that the parties should not .attend meetings of the commissioners was not a prohibition, but was a mere utterance of the opinion of the commissioners. It- did not apply to the parties’ counsel, and in one of Mr. Clevenger’s letters to Mr. Drake the right of the defendant herself to be present was clearly admitted and stated. There was, in fact, no exclusion of the parties. Miss Doughty, if she stayed away, did so of her own choice.

Nothing in the correspondence or proofs, or in the subsequent testimony which has been here submitted, indicates that Miss Doughty, bjr reason of anything done by the commissioners, or because of her absence from any proceedings or meetings, was in any way put to a disadvantage. The third objection is no ground upon which the court should suppress the report.

The fourth objection is based upon the same charge—that Commissioner Clevenger had displayed such feeling and repugnance against the defendant and her counsel, and such favor and partiality to the complainant, as were entirely inconsistent with his impartial and judicial action. The proofs show affirmatively that Commissioner Clevenger was actuated by a purpose impartially and fairly to perform his duty, under somewhat difficult circumstances. For the reasons above stated, and because I find nothing whatever in the ease which justifies such a charge, I hold this exception to be unsustained.

The further objection is taken by the defendant to the commissioners’ report in the charge that Mr. John D. McMullin (who had acted as attorney or solicitor of the complainant, and was a party to the suit as administrator of a decedent having an interest in the case) had wrongfully obtained a person who was neither a party, nor counsel, nor driver, who was unknown to the defendant, to attend and go around with him on an inspection of the'property, although the commissioners had declared that no one but the parties, their counsel and their drivers should accompany them. This is claimed to have been a partiality shown Mr. McMullin. This specially-mentioned instance of partiality is a fair specimen of these charges. The testimony proves, without contradiction,, that the unknown party who accompanied Mr. Mc-Mullin was a friend of his, who was casually invited to act as his driver. Nothing is shown to indicate that this gentleman did anything to interfere with, or intrude upon, the commissioners performing their duty, nor does he appear to have done anything but drive the team. He does not appear to have known anything about the propertvq or to have said anything about it, or to have had any relation io it. If this inciden); is to receive any notice, its only effect is to show that none of the commissioners favored any of the parties in' the particular mentioned, nor, so far as can be perceived, in any other matter. The fifth objection is overruled.

The sixth objection to the action of the commissioners is that Mr. McMullin, the same gentleman previously mentioned, who acted as solicitor of the complainant,,was previously cognizant of the purpose of the majority of the commissioners as to the division they would make, and had expressed himself as satisfied with their intended action, and was in such close touch with them'as to be in conference with them in the absence of the defendant, and to be apprised of their action beforehand. There was some testimony taken on this point. I think I am bound to say, in justification of worthy gentlemen who have fairly performed an unpleasant duty, that the testimony which has been directed to sustain this criticism is wholly unworthy of attention. The affirmative proof shows that the majority of the commissioners referred to gave no privilege to either party which was denied to the other. There is no showing of even an attempt to influence them in their action, or of any confidential or other communication by any of them to Mr. McMullin of their intended action before it was actually made. The proof is positive and, in my judgment, conclusively refutes the imputation of partiality or bad faith on the part of the commissioners. The sixth exception must be overruled.

The seventh objection is that Mr. McMullin was frequently at the house and dined as a guest of Mr. Champion, one of the majority of the commissioners, during the pendency of the commission, and that Mr. McMullin and his father, Charles T. Mc-Mullin (who is the husband of the title-owning complainant, Mrs. McMullin), wore so intimately connected as to spend much time in business and social intercourse with him, making judicial action impossible as a commissioner. This charge has also been examined upon in testimony. Mr. McMullin, ■ the solicitor, and Mr. Champion, one of the commissioners, the parties attacked, deny the imputation under oath, and nothing throws any doubt upon the truth of their statements. I think it is but justice to them to say that the testimony is of no weight whatever to cast even a suspicion of any attempted currying of favor or of any improper relations between them. The seventh objection is overruled.

Nothing in the whole conduct of the proceedings, from the beginning to the end, has been shown which leads me to believe that the commissioners, or any of them, have, at any time, been guilty of any misconduct in the performance of their duty, or have exhibited any partiality in favor of the complainant against the defendant. , 1

The eighth objection is'that the two majority commissioners were guilty of misconduct and partiality in favor of the complainant and John D. McMullin, administrator, &c., as against the defendant, in the actual making of the partition. This objection fairly includes the first three general objections made by the defendant, charging irregularity of division, giving Miss Doughty less than her full four-fifths proportion in value, and that the partition was made by the commissioners upon wrong principles. This eighth objection and the previous first three will therefore be considered together. Such objections to a commissioners’ report must stand or fall upon the showing that the commissioners, in their action, have made their division upon incorrect or wrong principles, or upon an assignment of shares so unequal as to the respective parts apportioned that, the inequality being shown, it might be here corrected or the matter be returned to the commissioners, with special instructions to make the shares eqiial, according to the interest held by the parties, or be referred to newly-appointed commissioners.

There are some considerations which should be stated as explanatory of the return of the commissioners. This procedure seeks an actual division of a great estate, largely woodland, consisting of about fourteen thousand acres. The several shares being four-fifths and one-fifth, it was impossible for the commissioners to apportion them to the respective parties'by an allotment by chance. There were other reasons why a chance drawing of shares could not be made. In the first place, Miss Doughty herself was entitled to consideration in the assignment of her mansion-house. It was her home, and had been for years. Her interest in the estate is very much greater than Mrs. McMullin’s, and it is in every way fitting that the family mansion should go as part of her share. It seems to have been by the agreement of all parties that Miss Doughty was given the mansion-house. Again, all the parties from the beginning to the end—everybody interested in this transaction—have, from the start, assumed that the property could be divided, and that there should be no sale. There was no need of any sale. The attention of the parties has been directed to that point. They appear to have united in the declaration that there could be actual partition, according to the relative interests of the parties in the property, and to have proceeded before the commission with that object in view.

Under these circumstances, the commissioners were unable to have that safe refuge for commissioners in such cases—a drawing by chance. They were, of necessity, compelled to divide the property into aliquot parts, representing the several interests of the parties, and to assign the shares so divided to the respective parties, according to their interests. The commissioners have divided this property. Speaking generally as to the division of the great tract, known as the Doughty tract, they have divided it in such a way that the portion which lies to the east of the Camden and Atlantic railroad and a small lot at Yentnor they have assigned, as one-fifth in value of the whole estate, to Martha A. McMullin. All the rest has been given to Miss Doughty, as four-fifths value of the whole estate.

The. defendant’s principal criticism of the partition made by the commissioners is that the lands to the west of the Camden and Atlantic railroad included in the share assigned to Miss Doughty, with the other property given her, are not, at a fair valuation, a full four-fifths share of the whole estate. The disparity charged is ascribed to an alleged overvaluation of Miss Doughty’s share and an alleged undervaluation of the complainant’s share, and to a claim of injustice to Miss Doughty in making the Camden and Atlantic railroad the line of division, when, Miss Doughty’s counsel contends, a fair division line would be the county road running almost parallel to that railroad, both crossing the whole property, giving to Miss Doughty and taking from Mrs. McMullin, the lands lying between that railroad and tbe county road.

The claim of overvaluation of the lands given to Miss Doughty and undervaluation of the portion given to complainant is not sustained by the proofs. Miss Doughty was given the part containing the mansion-house, the mill, the pond and power and the accompanying tenant-houses, the gravel pits in use, and also an acreage of land sufficiently large to enable her to enjoy all of these for their best uses, and a large and extensive surrounding tract. Her portion may fairly be estimated, acre for acre, to have a much higher value than the share set off to Mrs. McMullin. Miss Doughty’s portion enjoys the advantage of being crossed, for its longest distance, by the main line of the Philadelphia and Atlantic City railroad. She receives the fronting on both sides of this railroad for a distance of at least four miles, with a lay of land on each side most favorable for subdivision and sale. She also has the largest frontage on one side of the Camden and Atlantic railroad. The southwesterly portion of her share lies, for a long distance, within a mile or two of the main line of the West Jersey and Atlantic railroad. The part set off to her includes laid-out highways in much greater proportion than does the part set off to Mrs. McMullin. It also adjoins those parts of the original tract, where, by reason of previous sales, development has made some progress. All these incidents of advantage attached to the part set off to Miss Doughty were fairly within the consideration of the commissioners in dividing the property according to its value among the parties in proportion to their several interests. There is no showing that they overvalued the lands in Miss Doughty’s share, and thus decreased their extent.

Mrs. McMullin’s portion lies in the least-developed part of the property, by either railroad or highway construction. It contains neither improved land nor buildings of any sort. An attempt has been made to show that its growing timber was, to some extent, superior to that on Miss Doughty’s share, but the observation of the witnesses was so superficial in the extent of their examination of the lands that their testimony carries little weight. Another suggestion by a witness is that the portion of Mrs. McMullin’s share lying nearest to the village of Absecon had a very large value for village or small farm uses. The values indicated were almost purely speculative, depending much more upon the skill of the exploiter for sales, than on the- intrinsic characteristics of the land. If there were any substance in the criticism, it shows no special advantage given to Mrs. McMullin, for Miss Doughty’s land of the same sort approaches almost as near to Absecon and lies even nearer to Atlantic City. Nothing shown indicates an' undervaluing of the lands set off to Mrs. McMullin, thus increasing the area of the portion assigned to her.

As to the contention of tire defendant that a fair division required that the improved county road, parallel to the Camden and Atlantic railroad, should be the line of division of the shares assigned, there is even less to be said in criticism of the action of the commissioners. The defendant insists that the selection of the Camden and Atlantic railroad, rather than the improved county road, as the line of division, has cut Miss Doughty off from access to the county road, which is the most used highway through the tract. There is no such cutting off from access, for the maps, made twelve years ago, show that there were then three highways running out of the lands assigned to' Miss Doughty intersecting the county road. The selection of the line of the railroad does deprive Miss Doughty of the advantage of a frontage upon the county road, which would undoubtedly have added to the value of her tract. But considering the whole property, as divided, Miss Doughty has very much the advantage over Mrs. McMullin in convenience of access and frontage -upon lines of communication. She has, as stated, the very superior frontages upon main line railroads and also a much more extended development of highways on her tract. To have given the county road as the line of division would have prevented Mrs. McMullin froln having any frontage upon any main line railroad on any part of her share, leaving the only railroad which would even touch her lands to be the Brigantine branch of the Philadelphia and Atlantic City, which, for the purposes of land development, is practically valueless. If the action of the commissioners in this matter is fairly considered, it will be seen that, in bringing Mrs. McMullin’s portion up to the line of the Camden and Atlantic railroad, they were arranging an equalizing frontage, which might give to her share a fair proportionate opportunity for the more speedy development secured to Miss Doughty by the favorable location of her share. They appear, in this incident of their action, to have conducted their business with fairness and impartiality, doing no greater harm to Miss Doughty’s share than was necessary to make Mrs. McMullin’s share have its proper relative value. Certainly their action in this particular cannot be impugned because based upon a wrong principle, or resulting in giving a manifestly unconscionable advantage to Mrs. McMullin. The eighth objection and the first three submitted, as above stated by the defendant, should- be overruled.

The attacks which have been made upon the reported division are based, in great part, upon the testimony of persons who had but little acquaintance with the Doughty estate, and who were specially taken down to the property by Miss Doughty and her counsel, or those in her interest, for the purpose of making an estimate to impugn the fairness and proportionate values of the shares assigned. Such testimony is of less weight than would have been the testimony of persons resident in that locality, who had previously been intimately acquainted with the property. Only two or three witnesses of the latter class were produced. One was Mr. Emmons, who had had some opportunity to know the property, having been in Miss Doughty’s employ. His testimony affected but a very small portion of the tract, and was of little weight. Mr. Farr had handled some of the property adjacent to this estate and had some acquaintance with the adjoining portion of Miss Doughty’s share. Mr. Jason Waters, who owns property adjoining that which had been assigned to Mrs. McMullin, was also examined. These witnesses were brought to show that Mrs. McMullin’s share had a large speculative value for lots and small farms. Such testimony does not conform to the previous history of the tract, as indicated by the deeds and maps and the location of the land, and is largely conjecture. The realization of the values of land of this sort depends very largely upon the skill and enérgjr of the salesman of such lands. The value of the land itself for such purposes is an unsolved riddle.

It can readily be seen that there may be in the commissioners’ division of such a large estate some errors in valuation. It does not appear that there is any intentional favoritism, nor do the possible errors lie all in favor of one side, nor are they of great significance.

I have now considered in detail all of the objections made on which it is moved that the report of the commissioners be rejected. Of the purpose of the commissioners to make a fair report, and their substantial accomplishment of that result, I have been satisfied, after an examination of all the proceedings and after hearing the testimony and reading the correspondence between counsel and the commissioners. They sought to make what they believed to be a fair and equal partition among the parties interested, in proportion to their several interests, and I am satisfied that they have come as near to the accomplishment of that result as it is probable any commissioners could come. Under these circumstances, no reason appears why the commissioners’ report should not be confirmed. The costs of the litigation attendant upon the motion to reject the report must be charged to the defendant.

The question of the expenses of the commissioners, as reported by them, has not been presented by counsel, and the hearing of this matter must lie over until a later day.


text:
    Kate McCulloch v. George Tomkins.
    [Filed June 14th, 1901.]
    1. The burden of proof is upon an accounting trustee to show that he is entitled to the allowance for which he claims credit.
    2. When a trustee, acting under a trust to collect and pay over or invest for the sole benefit of a cestui que trust, purchases land in his own name and pays for it wholly with the trust funds, he will be decreed to convey to his cestui que trust the land so purchased, and, on stating the trust account, will be entitled to an allowance of credit for the amount of trust funds actually expended in the purchase.
    3. Where such a trustee appropriates the trust funds to his own use, without identifying them, and purchases real estate therewith, all without the knowledge or consent of the cestui que trust, and, when called to account, sets up a false claim for greater allowances of credit than he is' entitled to, he should not be allowed commissions for his services as trustee.
    On bill, answer, exceptions to master’s report and testimony.
    The bill in this ease is filed by the complainant against George Tomkins, alleging that, being in feeble health, she had placed herself under the defendant’s treatment as a Christian Science healer. She alleges that he fraudulently procured from her a power of attorney to collect her monéys and invest the same as he should determine, without her knowledge of its contents and effect; that he obtained from her large sums of money, amounting, in the aggregate, to $4,030; that he purchased a house and lot, No. 426 Linden street, in the city of Camden, with her money, for $4,000, and took the title thereto in his own name, without any reference to the complainant as cestui que trust; that she is unable to get any satisfactory information from the defendant as to where and how her moneys were invested, and she prays an accounting and restraint upon the defendant from conveying or encumbering the house and lot No. 426 Linden street, Camden, purchased with her money, and for an accounting as to the investments made of her money in defendant’s hands, and for a decree that he convey to her the Linden street property, and that he should return to her the residue of her moneys in his possession.
    The defendant answers, claiming that the complainant placed herself under his care for the purpose of “pursuing a course in Christian Science for amelioration and restoration in health,” and agreed to pay $5 a week therefor, and alleges an agreement on the complainant’s part that the total sum thus due is $255. He denies any fraud, but admits that he received from the complainant certain claims due to her for collection, He claims that she proposed a compensation of twenty per cent, to be paid to him for their collection. He alleges that he accepted this proposition, and has collected of the complainant’s moneys $4,053.87, for which lie claims a commission of $810.27. He denies that the power of attorney was not read to her, and alleges that it was made at her own solicitation. He denies that he purchased the Linden street house for $4,000, and alleges that he agreed to pay the mortgage thereon, to the amount of $2,900, and the further sum of $3,100 by direction of the complainant herself, and declares that he now holds the property for the complainant, subject to the mortgage debt. He denies that the complainant is not informed as to the investment of her money, and avers that she knows where the same is invested, and that it was done by her direction. He claims that he has paid for her, at various times, $354.45, and alleges that he has many times requested complainant to pay the balance due him and to accept a transfer of the said house and lot from him in full discharge of his trust.
    Issue was joined, and the cause came to final hearing. At the opening of the cause defendant’s counsel tendered a deed, conveying the Linden- street property to the complainant for the named consideration of $6,000. In response to this tender the counsel for the defendant stated that the title in the Linden street property, as held by the defendant, represented an investment of but $1,100, with $2,900 of mortgage debt thereon. The vice-chancellor stated to the complainant’s counsel that they might accept the tender or decline it, or hold it under advisement until an opportunity could be had to see whether the deed secured the rights of the complainant. Counsel for the defendant declared that they made' the tender of the deed in compliance with the prayer of the bill asking for a conveyance of the property. The counsel for the complainant stated that they would hold the tender under .advisement. The hearing then proceeded by the examination of the complainant and of the defendant. The testimony taken, with the answer of the defendant, showed that there was no dispute between the parties that the defendant had received $4,053.87 of the complainant’s money; that he had repaid to her various sums, amounting to a sum more than three hundred dollars; That he had rendered to her certain services, as a Christian Science healer, for which, at the hearing, she said she was willing to allow a credit of $255. The remaining matters were necessarily involved in any accounting made by the defendant of his disposition of the complainant’s money. The principal items in dispute were the defendant’s claim that he had expended $3,100 in cash of the complainant’s money in the purchase of the Linden street house, in part payment of an agreed purchase-price of $6,000, and the defendant’s claim of a commission of twenty per cent, for the collections which he had made 'for her. The stating of the account was then referred to a master and the further hearing of the cause was laid over until the coming in of the master’s report. The master’s report has now been filed. He reports that the purchase of the Linden street house was made by the defendant without the knowledge or consent of the complainant; that the cash payment was $1,100 and the agreement to pay a subsisting mortgage thereon for $2,900, making the sum of $4,000 the full consideration for that property, the title to which the defendant took in his own name. The master further reports that the complainant had, in writing, signified her consent' to accept a conveyance of the said premises at the price of $4,000, allowing to the defendant a credit for the $1,100 of her money expended in the purchase. The master allows to the defendant the sum of $249.98 for various incidental expenses attending upon the Linden street property. He further reports that, although the defendant held the complainant’s money as trustee for her, no part thereof has been invested by him, except the said sum of $1,100 expended in the purchase of the Linden street house; that there was no specific contract between the parties as to any commissions to be allowed to the defendant, but that the complainant had consented, in writing, to allow the defendant $100 for collecting and investing her moneys, and for that reason the master allowed the same.
    Upon the coming in of the master’s report the defendant filed exceptions—first, because the master exceeded his authority in inquiring as to the good faith of the defendant’s investment of the complainant’s money in the Linden street house; second, the complainant had given the defendant discretionary authority to invest the money, and if she accepted the property purchased by him as an execution of his trust, she was bound to accept it with its burdens, or to refuse it; third, that the master had perverted the testimony in reporting that the price to be paid for the Linden street property was but $4,000, including the mortgage, when, in fact, the price was $6,000; fourth, that the master erred in excluding a $2,000 note, made by the defendant to Mrs. Baker, the grantor of the Linden street property, from allowance as part of the consideration of that property; fifth, that the master exceeded his authority by inquiring into the advantages of the investment of the complainant’s money in the Linden street property; sixth, that there was no special contract shown between the complainant and the defendant as to the commissions to be .allowed the defendant; that he should have the same commissions as are allowed by statute to a trustee; that the master erred in fixing the commissions at the sum of $100.
    By the consent of counsel for both parties, the exceptions to the master’s report and the final hearing of the cause were presented together.
    Mr. William T. Boyle and Mr. Henry S. Bcovel, for the complaint.

      Mr. Timothy J. Middleton and Mr. Jonas Miller, for the defendant.
   Grey, V. C.

The controversy between the parties has been narrowed to the disputes touching the purchase of the Linden street property by the defendant, with the complainant’s money, and the allowance of commissions to the defendant for (Collections made by him from her debtors. There are several formal questions raised by the exceptions, which may readily be disposed of. The first exception denies the authority of the master to inquire into the good faith of the defendant’s investment of complainant’s money in the Linden street house. An examination of the order of reference shows that the master was ordered to take an account of all the transactions between the complainant, as cestui que trust, and defendant, as trustee; that, for that purpose, the defendant should produce all documents in relation to investments made by him on behalf of the complainant, and that the master should report what investments have been made by the defendant for complainant. The power thus given to the master was fully sufficient to justify his inquiry as to the good faith and truth of the investment made by the defendant of the complainant’s money in the Linden street house. The first exception should be overruled.

The second, third, fourth and fifth exceptions deal with the investment of the complainant’s money by the defendant in the purchase of the Linden street house, and may be considered together. The defendant purchased this house from a Mrs. Baker, a widow, with whom he presently boards, and he claims that he paid the sum of $3,100 in cash for this house, undertaking, also, the payment of a $2,900 mortgage already on the property, making the total purchase-money $6,000. The complainant’s counsel contend that the actual payment made was but $1,100 cash, subject to the mortgage as stated, making the total purchase-price to be $4,000, of which only the sum of $1,100 paid in cash should be allowed to the defendant as a credit-against the complainant. The defendant is admittedly acting in a fiduciary capacity, having received the complainant’s money to be invested for her benefit. In the accounting he is asking an allowance for an expenditure of it made by him as trustee. The burden is upon him to show what was the actual expenditure made by him for which he claims a credit. The complainant appears,' by all the testimony in the case, to have trusted the defendant with blind confidence. Her manner on the stand, as well as the testimony which she gave, indicated her unquestioning reliance upon his good faith and honesty. In the deed by which the defendant purchased the Linden street property he is himself named as grantee. There is no indication on the face of the deed that the complainant has any interest in the property. No memorandum in writing was given her to show that the defendant had invested her money in his own name. She says that, until after the purchase had been effected, she did not even know that it had been made. He swears that she was previously consulted and approved of it. Mrs. Baker, the grantor, testifies that the price to be paid was $3,100 in cash, subject to a mortgage of $2,900. The deed itself was drawn by Mrs. Baker’s lawyer, under her orders. It is expressed to be for the consideration of $4,000,

“subject, however, to the operation of a certain mortgage against the same for $2,900, given by the within grantee to Charles Rhoads and others, &c., * * * which said party of the second part hereby assumes and agrees to pay as part of the said consideration.”

Mrs. Baker was unable to explain how the deed came to be drawn in this way. She swears that she gave no explicit directions to her counsel on this subject. Her lawyer who drew the deed was not called in behalf of the defendant to explain what instructions he received. The testimony of Mrs. Baker was given before the master. It is apparent, on its face, that she was desirous of making it as weighty as possible in favor of the defendant. She was quite unable to state in what way the $3,100 in cash was paid to her, although the transaction took place within a year last past. She failed, through her whole examination, to disclose a fact which, on cross-examination, was extorted from her, namely, that she held the defendant’s note for $2,000, which she and the defendant claim represents a part of the cash price of the purchase-money of the Linden street house. The master ■evidently disbelieved the statements made by Mrs. Baker and by the defendant to the effect that a cash payment of $3,100 was made for the Linden street house, and that its purchase-price was agreed to be $6,000. The master’s view of the testimony is sustained by a reading of it. The defendant has not carried the burden of proof to .show that the purchase-money was $6,000, and that he paid $3,100 in cash on this transaction. The weight of the evidence indicates that the purchase-price was $4,000, and that ■only $1,100 in cash was paid.

It is proven that Mrs. Baker bought the property a year and a half before for $3,150. The testimony shows that she said, ■shortly before the making of the deed, that she expected to sell it for $4,000. The deed itself, drawn by Mrs. Baker’s counsel, is expressed to be made upon the consideration of $4,000, part of which, $2,900, was the mortgage then on the premises. The internal revenue stamp on the deed conforms in amount to the stated consideration—$4,000.

The testimony of the defendant claiming that he had .paid $3,100 in cash of the complainant’s money on this purchase also-appears to be uncandid and elusive. It is evidently given rather for its effect in supporting his claim, than as a frank exposition of the truth of the transaction.

A witness testifies that, about the time of the making of the deed to the defendant, he said that he had put $1,100 of his patient’s money into the purchase.

I am unable to accept the testimony of the defendant and Mrs. Baker against the contemporaneous statements of the same parties, the setting forth of the consideration in the deed and the-contradicting testimony of the other witnesses. The defendant admits that, although he took the title in his own name, he made the purchase with the complainant’s money for her benefit. I am satisfied that he did this without her knowledge or direction. Under such circumstances, if she chooses to accept this investment of her money, she has a right to do so. Her acceptance is a release and discharge of her trustee to the extent that he had actually invested her money in the purchase. He has no right, by setting up a false claim that he invested a greater sum, to-deprive her of the benefit of the purchase, upon allowing him what he actually paid. The second, third, fourth and fifth exceptions to the master’s report should be overruled.

The sixth exception to the master’s report objects that the-master has fixed the commissions allowed to the defendant at the sum of $100, whereas the defendant insists he should have the same commissions as are allowed by law to a trustee. The claim for these commissions is made for the defendant’s services in collecting a mortgage and some promissory notes due the complainant from her debtors living in the State of New York.

It may well be doubted whether a trustee who transfers the whole trust estate into his own name, without labeling it in any way, and then sets up a false defence, should be entitled to any commissions.

The defendant claims that he earned commissions by making collections for the complainant, by a combination of letter-writing and a making of “demonstrations.” Of what a “demonstration” consists is not precisely defined by the defendant. It was not, lie says, the making of any journeys or the employing of lawyers to collect the debts, though he did correspond with some lawyers about the mortgage. He could not remember that he had paid them any fees. So far as the defendant’s testimony explains what he calls a “demonstration,” it appears to have consisted of a locking of himself in a room and devoting himself to the “thought” of collecting the debts due to the complainant. The defendant testified that the parties who owed the complainant were not in any way connected with the Christian Science Church. The influence which he exerted by “thought” in collecting the money for the complainant was therefore enforced against unbelievers in Christian Science. The moving of an absent unbeliever to pay his debts probably required from the defendant a more intense application of healing power, entitling him, from his point of view, to a higher compensation for his labors.

There is no other evidence than defendant’s own testimony as to the complainant’s agreement to pay him a twenty per cent, commission. The complainant denies this. The defendant’s testimony is of no greater weight than complainant’s, and, indeed, as it is given, is quite incredible. The master, it should be observed, has not reported that the defendant .is entitled, because of his services, to any commission. The $100 is allowed, not because the defendant earned or deserved it, but because the complainant consented to give it to him. Save for this agreement of the complainant, no allowance of commissions would have been made to the defendant. The sixth exception to the master’s report should bo overruled. The master’s report should be confirmed.

Hpon the whole case, there should be a decree that the defendant convey the Linden street house to the complainant in fee-simple,'for the consideration of $4,000; that an allowance of $1,100 be made to him for his cash expenditures in purchasing the same, as stated in the master’s report; that the conveyance be subjected to the mortgage for $2,900 now on the premises, which mortgage the complainant, by accepting the deed, shall assume and agree to pay as part of the consideration of the said conveyance.

There should be a further decree in favor Of the complainant and against the defendant for the sum of $2,425.14, with interest thereon from the 30th day of April, 1901, the date of the master’s report in this cause.

I will advise such a decree, with costs of complainant to be taxed.


author: Grey, Y. C.

text:
    William B. Wills, guardian, &c., v. Isaac W. Field et al.
    [Filed July 13th, 1901.]
    Where a distinct parcel of the mortgaged premises has been held for over twenty years by grantees of the mortgagor, witnout covenant to pay the interest or principal of the mortgage, or actual payment of either, or other recognition of the encumbrance of the mortgage on such distinct parcel, and without entry by the holder of the mortgage, the mortgage has ceased to be a lien on such distinct parcel of the mortgaged premises, notwithstanding it was duly and seasonably recorded and interest lias been continuously paid by other holders of other distinct parcels of the mortgaged premises.
    On bill to foreclose, answers and statement of admitted facts.

      Mr. Jerome B. Grigg, for the complainant.

      Mr. Qharles B. Merritt, for Carty et al., defendants.

      Mr. Samuel IF. Beldon, for Herron et al., defendants.
   Grey, Y. C.

This bill is filed to foreclose a mortgage made by Joseph Field, Jr., to Margaret Seebolm, dated April 1st, 1822, securing the payment of $2,200, with interest, in one year from date, upon several tracts of land situate in Mansfield township, Burlington county, consisting of numbered lots in Jonathan Rhea’s town plot of the town of Eieldsborough. The mortgage was duly recorded on April 29th, 1822. The premises covered by it are on a “map of Eieldsborough,” produced in evidence, recorded at Trenton, Book A V, page 397. They consist of lots Nos. 2, 3, 4 and 14, which front on the Delaware river; lots Nos. 35, 36 and 37, fronting on First street; lots Nos. 42, 46 and 52, fronting on Second street, and lots Nos. 80 and 81, fronting on-

street, between Second and Third streets. The mortgage and accompanying bond have, by various assignments, come to be the property of Reading Wood, who has been declared, by the return of an inquisition de lunático, to be a lunatic, and the complainant was, on February 4th, 1895, by the orphans court of Burlington county, appointed guardian of his person and estate.

The several tracts of land included in the mortgage have, by intermediate conveyances, come to be held at the present time by different persons, and some of them now, by answer, deny the liability of their several ownerships to the mortgage, or dispute the order in which their lands should be sold to pay it.

The disposition made of the mortgaged premises and their present holding is as follows: After the making and recording of the complainant’s mortgage, in 1822, the several lots were dealt with together by the mortgagor until 1831.

On October 19th, 1831, lot No. 14, fronting on First street and reaching to the Delaware river, was separated and conveyed to John L. McKnight, by deed duly recorded. By intermediate conveyances this lot has been divided into two parts. That portion lying southeast of the Camden and Amboy railroad track has come'to be owned by the defendant Winfield S. Carty, who mortgaged the same for $1,500 to Thomas H. Eaton, who is also made a defendant in respect to his mortgage. The residue of lot No. 14 has come to be owned by the Camden and Amboy Railroad and Transportation Company, now leased to the Pennsylvania Railroad Company, and those two companies are made defendants in respect to their ownership of these portions of the mortgaged premises.

The next disposition was made of a strip of land, thirty feet wide, across lots Nos. 2, 3 and 4, on First street, which was conveyed on September 10th, 1835, to the Camden and Amboy Eailroad and Transportation Company.

The statement of facts agreed upon admits that the railroad company’s part of lot No. 14 and its strip across Nos. 2, 3 and 4 have been in its exclusive and undisputed possession, without charge by, or payment to, the holders of the complainant’s mortgage. It also admits that Winfield S. Carty and his predecessors have been in like possession of his portion of lot No. 14, with like freedom from charge by, or payment to, the mortgage-holders. There is no evidence that, in making the original conveyance of No. 14 and the railroad strip, any notice was taken of the mortgage now held by the complainant. sNo covenant to pay it, by either the grantor in those deeds or by the grantees, is offered in proof. In actual fact, the grantees appear to have held their possession of those lots for over sixty years before the bill was filed, without either recognizing or being required to recognize the complainant’s mortgage, by covenant or by payment of interest or principal, or in any other way but the record.

The defendants the Camden and Amboy railroad and the Pennsylvania railroad and Winfield S. Carty and wife and Thomas H. Eaton, mortgagee of Carty, all defend, and deny the liability of lot No. 14 and the thirty-foot-wide strip across Nos. 2, 3 and 4 to the complainant’s mortgage, because those defendants, and those under whom they claim, have held those portions of the mortgaged premises for over twenty years, without any entry by the holders of the mortgage and without paying any interest or principal on the complainant’s mortgage.

The cases of Blue v. Everett, 11 Dick. Ch. Rep. 455, and Colton v. Depew, 15 Dick. Ch. Rep. 454 in the court of appeals, have dealt with the effect of non-payment for twenty years of interest or principal of a debt secured by bond and mortgage. Upon their authority it has been held in this court that “a payment by the owner of one distinct portion of the mortgaged premises, who, perhaps, has assumed payment of the whole mortgage debt, cannot, standing alone, be construed as an admission by the owner of another distinct portion of the title of the mortgagee to that distinct portion of the premises.” Ely v. Wilson, 16 Dick. Ch. Rep. 94. In the case under consideration the mortgage has remained a charge upon lot No. 14 and upon the railroad strip by its record alone. There has been no release and there has been no special covenant to pay it by any holder of any distinct part of the mortgaged premises, nor has there been any act of recognition of its existence as an encumbrance by any grantee of lot No. 14 or of the railroad strip.

Whatever may have been the law before the above-cited decisions regarding the lien of a mortgage upon a parcel of the mortgaged premises conveyed away by the mortgagor and held under the circumstances noted, those judgments appear to have settled it that a parcel held, as lot No. 14 and the railroad strip over Nos. 2, 3 and 4 .have been, for more than twenty years (sixty-five, in fact), without either recognition or assertion of the lien of the mortgage, has become free from its charge. The bill must be dismissed as to the defendant owners of lot No. 14 and the railroad strip over lots Nos. 2, 3 and 4.

Lots Nos. 80 and 81, on-street, between Second and Third streets, on the map of Fieldsborough, are described as included in the mortgage. The defendant owners of these lots set up two defences—first, they claim that they hold these lots by a title anterior and superior to that of the mortgagor. The complainant’s mortgage was made in 1822. One John Adams was, before that date, the holder of the title to lots Nos. 80 and 81. The defendants, present owners of' those lots, insist that they derive their title to them by a deed executed in 1816 by the administrator of Adams to one Philip Quigley, who, in 1830, convejred to the grantors of the present owners of lots Nos. 80 and 81. The 1816 deed was never recorded, but its existence is recognized by a recital in a deed making part of the chain of title under which complainant’s mortgage subsequently came into being. The defendants contend that ever since the date of the deed from Quigley (1830) they have had “actual, adverse, exclusive possession, without let or hindrance of anyone.” The complainant insists that his mortgage became, by the record, a charge upon the lots Nos. 80 and 81 when it was made; that if Adams, the antecedent owner, had, by his administrator, conveyed to Quigley, by a deed prior to the making of the mortgage, that fact is of no significance, as the deed was not recorded when the mortgage was made, &c. This phase of the case presents the question discussed by the court of appeals, in Chadwick v. Island Beach Co., 16 Stew. Eq. 624, where, obiter, that court declares that “a defendant in a foreclosure suit, if he has a title paramount to that of the mortgagee and intends to enforce it, must set it up by answer.” The suggestion in the Chadwick Case, while quite positive that the defendant who claims under an alleged paramount title must set it up by way of answer, does not declare how, in the foreclosure suit, the question of the superiority of the alleged paramount title shall be tried. A long line of cases has determined that a foreclosure suit is not a proper proceeding in which to litigate the claims of one asserting a title alleged to be paramount and in hostility to that of the mortgagee. Coe v. Midland Railroad Co., 4 Stew. Eq. 116, and cases there cited.

It is unnecessary in this case to prescribe the mode whereby the suggestions of the Chadwick Case can be carried into effect. The lien of the mortgage is no longer forceful on lots Nos. 80 and 81, even if the mortgage title should be held to be superior to that set up by the present holders of those lots. The stipulated facts admit that ever since the date of the deed from Quigley (1830) the defendants, devisees of Forbes and heirs-at-law of I-Ierron, have been supposed to be the owners of lots 80 and 81, and have had actual, adverse, exclusive and continuous' possession of those lots; that they have never paid the holders of the mortgage either interest or principal, and have had their possession without the let or hindrance of anyone. These circumstances show an actual and notorious possession of lots 80 and 81 by the defendants Herron and Forbes, claiming to be owners, by a title adverse and hostile to the mortgage, for more than sixty years before the bill wras filed in this cause. Under the principle declared in the above-cited cases, the mortgage-holder cannot, under such circumstances, enforce the mortgage against the portion of the mortgaged premises so freed from its charge.

As the mortgage is held to be no longer a lien on the lots of the answering defendants, there is no need to consider the incidental questions raised by them touching the crediting of the value of released lots against the mortgage debt for the benefit of the answering defendants.

The final result is that the sale under this foreclosure must be limited to the portions of the mortgaged premises owned by those defendants who have, or whose grantors have, within twenty years, recognized the lien of the mortgage, and which have not been released. These portions are the parcels held by the defendants Israel Johnson, trustee; Rebecca H. Field, widow, and Malcolm A. Field, Jr., and Isaac W. Field, Jr.

A decree for the complainant will be advised according to the views above expressed.