text:
    James H. Clark v. Clark D. Augustine and Delancy Carter, executors of Luke Clark, deceased.
    [Filed January 21st, 1902.]
    1. A statute of limitations creates a mere personal right, which may be waived by the defendant.
    2. Where a defendant has, by deception or by any violation of duty toward complainant, caused him to subject his claim to the bar of limitations, equity will not permit him to hold the advantage thus obtained.
    3. Upon the facts shown—Held, to justify a preliminary injunction restraining the executors from raising the defence of limitations in the suit on the claim, whether or not they intended to mislead complainant.
    On bill, &e. On motion for injunction.

      Mr. William II. Speer, Jr., for £he complainant.

      Mr. James A. Gordon, for tbe defendants.
   Stevenson, V. C.

The complainant is prosecuting an action in the supreme court of this state against the defendants, who are the executors of his father, to recover the sum of $5,200 alleged to be due for services rendered by the complainant to his father in his lifetime.

This bill is filed to obtain an injunction restraining the defendants from attempting to maintain a defence which they have pleaded in the above-mentioned action at law. The defence thus objected to is that the complainant is barred of his action by his failure to bring suit within the three months allowed by the statute after the executors had given him written notice that his claim was disputed. Revision of Orphans Court act, P. L. of 1898 p. 740 § 71. The complainant insists that to permit the defendants to interpose tlie defence of this statute of limitations would be grossly inequitable and in effect a fraud.

The essential facts are not in dispute. They are as follows:

Pursuant to section 67 of the Orphans Court act, the defendants notified creditors to bring in their claims against the estate, under oath, within nine months thereafter. The complainant duly presented his claim. The notice that the executors disputed and rejected the complainant’s claim was their served upon him. This notice bears date November 2d, 1899, and the defendants aver in their plea that it was'served on that day, while the complainant alleges in his bill that it was not served until about December 8th, 1899. I do not think that it is necessary to ascertain this date more definitely.

The executors thus availed themselves of the statutory provisions which are designed to secure prompt settlement of the estates of deceased persons and which largely curtail the rights of creditors in respect of. the prosecution of their claims. The creditor is brought up sharply either to abandon his claim or institute a suit within three months to enforce it. This is an old and well-established statutory proceeding in favor of the settlement of estates, before which the rights of creditors give way. Under recent legislation (P. L. of 1889 p. 428, Orphans Court act, §§ 72, 73, 74) creditors who fail to present their claims in time may subsequently prove them against any surplus, and in case the executors desire to dispute the claim they may give notice similar to the one already referred to, and thereupon the creditor (§ 74) must take his choice to abandon his claim or bring suit for the establishment of it within one month from service of such notice upon him.

It would seem to be in accordance with the plainest principles of equity that executors who take advantage on behalf of their estates of these special statutory proceedings, whereby they compel creditors to elect between the abandonment of their claims or the prompt institution of actions for their enforcement, should not by their conduct, either of omission or commission, prevent the efficient institution of such actions as the creditors may elect to bring within the brief time allowed for that purpose.

In the present ease both of the executors were residents of the •State of New York during the whole of the period under, consideration. They came from New York to New Jersey for the performance of their duties as executors, and, as we have seen, instituted the proceedings here which compelled the complainant to bring his suit for the enforcement of his claim in case he did not wish to abandon it, and then they retired again to New York so .as to make, in the absence of further action on their part, the efficient maintenance of such a suit an impossibility.

Statutes of limitation generally except from their operation the periods of time during which the defendants who plead them have resided out of the state in which the action is brought. No .such exception is contained in the statute under consideration in this case for a very manifest reason. An estate should not be deprived of the benefit of this statute on account of the non-residence of the executor or administrator. But the non-resident •executor or administrator plainly owes a special duty to the creditors whom he calls upon to sue with reference to the actions which he in effect compels them to bring. It can hardly be supposed that it was within the contemplation of the legislature that executors or administrators, administering an estate in New Jersey, would or could cut themselves off from service of process by continuously residing out of the state; that a non-resident trustee would be permitted to start the statuory machinery necessary for the prompt settlement of the estate in his hands involving the institution of lawsuits by creditors, and then provide no means by which such lawsuits could conveniently or effectively be brought and maintained. The legislative intent is clear. The representative of the estate in New Jersey may get the benefit of a prompt settlement of all outstanding disputed claims by, in effect, notifying the holders thereof to put them in suit within a very brief period. The statutory proceeding is indivisible. The executor or administrator must pursue it to its conclusion. He cannot divide it so as to get its benefits for his estate and evade its burdens imposed for the benefit of the creditors.

But this case does not depend solely upon the non-residence •of the defendants, nor is it claimed that such non-residence, by itself, makes the plea of the statute as a bar an equitable defence.

The whole conduct of these non-resident executors is brought under investigation in order to ascertain whether, after they had called upon the complainant to sue them in New Jersey, they discharged their duty to him with reference to his suit, or whether, by any violation of duty, they caused him to subject his claim to the statutory defence which they afterwards set up.

The complainant had about three months from November or December 1st, 1899, in which to bring his action against these non-resident executors. The defendants produced a copy of a letter dated December 19th, 1899, written by one of the executors, Mr. Clark D. Augustine, who is said to be a New York attorney, addressed to a firm of lawyers in Jersey City, who had acted for the complainant in the presentation of his claim. After-referring to other matters, the letter proceeds as follows:

“Do you anticipate that James H. Clark will sue on his claim, if so-we should like to have it litigated at once in order to be able to settle the estate. Are you in communication with him?”

No reply to this letter is produced. At the time it was written these lawyers were not acting for the complainant. Four days-before, on December 15th, the complainant had placed his claim for suit in the hands of the attorney who has since represented him. The letter indicates distinctly that the defendant executor was not certain that his correspondents represented the complainant at that time, and it is urged, with force, that presumably they replied to the letter and so informed the defendant. However that may be, the complainant testifies that he was never informed of this letter.

The defendants took no steps to inform the complainant how process could be served upon them, although they must have been aware of the difficulty of the situation which their non-residence-created. .

The complainant testifies that the defendant Augustine informed him that he resided in Milton, Morris county, New Jersey. This information ivas communicated to the complainant’s attorney, and upon the strength of it, on February 1st, 1900, he forwarded to the sheriff of Morris county a summons and declaration in an action in the supremo court to enforce the complainant’s claim. The sheriff kept these papers for a time, and then, having failed to effect service, returned them to the complainant’s attorney after the expiration of three months from the service of the notice disputing the claim. At most there was not more than about live weeks after the delivery of the papers to the sheriif before the expiration of the statutory period of three months. According to the averment of the defendants’ plea there was only one day. As the proofs stand I do not think that any negligence or unnecessary delay can be imputed to the complainant or his attorney.

It is not claimed on behalf of the complainant that any intentional deception was practiced upon him by Mr. Augustine. Mr. Augustine, in his affidavit, says that he

“has never been a resident of Milton, New Jersey, but during the summer months from June until September he went there and stopped at the house of his wife’s parents from Friday or Saturday evening until the following Monday.”

The complainant’s affidavit, in reply, states positively that, prior to the presentation of his claim, Mr. Augustine informed him that he “lived at Milton, in Morris county, New Jersey, and described to him the peculiarities of the place.” The defendants made no effort to meet this evidence. As the matter now stands before this court the only conclusion is that the misleading information which caused the complainant to lose his three months in fact came from the defendant.

The complainant shows that, notwithstanding persistent efforts which lie made to serve process upon the defendants in an action for the enforcement of his claim after his failure in Morris •county, he was unable to accomplish his purpose until in October, 1900, when process was served in the action in the Hudson circuit, in which the statutory bar is pleaded.

Owing to various circumstances, set forth in the affidavit, the prosecution of this new suit in the Hudson circuit court and also the prosecution of the injunction suit in this court have been delayed. The action at law was on the list for tridl at the April Term, 1891, of the Hudson circuit, and was then postponed in •order that the complainant might apply to this court for the injunction prayed for herein. The bill has only been recently filed, but all parties here had notice of the intention to apply to this court, and it is not shown that the defendants have been harmed by the delay.

I think the right of the complainant to an injunction against the defence which the defendants have pleaded in the action at law depends on whether or not the defendants must be deemed to have wrongfully caused the complainant to make his fatal delay in prosecuting his action.

That courts of equity do not undertake to amend a statute of limitation when they grant an injunction restraining its use as a defence, because such use would be fraudulent or inequitable,, is no longer open for discussion. ' All these statutes of limitation create merely a personal right, for the benefit of individuals, and may therefore be waived. Quick v. Corlies, 10 Vr. 11 (1876). Generally speaking, it may be said that the bar of the statute is raised when the plaintiff has elected to allow it to be created and the defendant has elected to invoke its benefits. When the defendant not only has elected to set up the statute, but has also-previously, by deception or by any violation of duty toward the plaintiff, caused him to subject his claim to the statutory bar, he must be charged with having wrongfully obtained an advantage which equity will not allow him to hold. It is a matter of no importance that the advantage which he has wrongfully secured is based upon this sort of a statute which, at any time, he' is permitted to waive.

In large numbers of cases where the defendant has caused the plaintiff to subject his claim to the statutory bar by procuring an injunction upon its prosecution or by fraudulently concealing its-existence, or by apparently waiving, by a promise or otherwise, the benefits of the statute as a defence, courts of equitj- have restrained the defendant from pleading the statute on the ground that he had estopped himself or that to permit him to interpose such a plea would be to allow him to take advantage of his own-wrong. Doughty v. Doughty, 2 Stock. 347 (1855); Cowart v. Perrine, 6 C. E. Gr. 101 (1870); Quick v. Corlies, supra; Freeholders v. Veghte, 15 Vr. 509 (1882); Lamb v. Martin, 16 Stew. Eq. 36 (1887); Holloway v. Appelget, 10 Dick. Ch. Rep. 583 (1897); 19 Am. & Eng. Encycl. L. (2d ed.) 243, 286, 288, and cases cited.

In the case of Holloway v. Appalget the court of errors and appeals, adopting the opinion of Vice-Chancellor Eeed in this court, holds that a court of equity would enjoin a defendant from setting up the statute of limitations as a defence “although the cause of action may not have arisen out of a technically fraudulent act, if the defendant has employed any means to mislead the plaintiff or to hide from him the fact that a cause of action has arisen.”

It seems to me that the principle running through all of the decisions above cited extends to a case like the one under consideration. In all these cases we find that the plaintiff has not intentionally or negligently allowed his time for suit to elapse, but that the defendant by his conduct in some way has brought about that result. There does not seem to be any distinction between conduct of the defendant, which has misled the plaintiff as to the existence of the cause of action, and conduct of the defendant, which has misled the plaintiff as to the time, place or manner in which the plaintiff’s suit should be brought. In each case the plaintiff has not intended to allow his statutory time for suit to elapse, and in each case the defendant has misled the .plaintiff into suffering that thing to occur.

It is not necessary to decide that when the non-resident executor or administrator notifies the creditor that his claim is disputed he must also inform such creditor how process may be served in any suit which he may elect to bring. , The propriety of giving such information voluntarily would suggest itself to any fair mind. The creditor has sworn to his claim and presented it against the estate. Still the non-resident executor or administrator who, as in this case, could easily be found and communicated with by the creditor, might await a notice from the creditor that he had elected to sue and a request that arrangements be made for the service of process. However this may be, the non-resident executor or administrator is bound to set fairly in view of the peculiar situation for which he is responsible, and, in my opinion, is bound to see that- the fact of his non-residence does not prevent the creditor from bringing the suit which he has forced the creditor to bring.

Tlie affidavits of the defendants allege that the complainant had interviews with them during the three months following the service of the notice that the complainant’s claim was disputed. This is denied by the complainant. However that fact may be, it is plain that during the whole of the three months in question the complainant and his attorney were reposing upon the action at law which they supposed they could effectually bring or had effectually brought. The complainant during that period would not be expected to address the defendants in any way upon the subject of the service of process upon them when he had no reason to doubt that they had been, or would be, legally served with process in his suit in the State of New Jersey.

It is the residence of both executors in a foreign state and the misleading information which one of them gave to the complainant, which, taken together, constitute the equity of the complainant’s application for an injunction in this case.

I do not think that the force of this misleading information is materially affected if it be conceded that there was no intention on the part of the defendant executor to mislead. When an executor, in fact residing out of this state, by his conduct in apparently residing in this state during part of the year or by his statements in 'regard to such temporary residence which easily can be misunderstood, has in fact misled the creditor whom he has notified to sue, the result, in my judgment, is the same as if such executor had actually intended to deceive, provided, of course, that the creditor has acted in good faith and without negligence. In such a case the presumption of fact, from the creditors’ point of view, is that the executor who is administering a New Jersey estate under the direction of the courts of New Jersey is a resident of the state.

I think that these non-resident executors must be deemed to have caused the plaintiff to subject his claim to the statutory defence which they set up, and that the complainant therefore is entitled to the injunction for which he prays. If the defendants so desire, arrangements can be made and terms imposed which will secure the postponement of the trial of the action until the final hearing in this case. The defendants need not be compelled to go to trial without their plea if they think that further proceedings in this cause will relieve them of the injunction.


source: Caselaw Access Project

author: Stevenson, Y. C.

license: Public Domain

text:
    Minnie Zabriskie and Fannie De Woelff v. William Huyler et al.
    [Filed January 24th, 1902.]
    1. The court of chancery has jurisdiction to entertain a suit to obtain the construction of a will in order to establish and recover a legacy.
    2. Testatrix’s estate, at the time of her death, was worth about $120,000. Her family in 1882, when her will was made, consisted of herself, her husband and his two daughters by a former marriage. She gave $10,000 to each of her stepdaughters, made other legacies amounting to $25,000, and gave the entire residue to her husband, “to have and to hold the same unto him and to his heirs, executors, administrators and assigns forever.” The husband died before the testatrix.—Held, in a suit by the stepdaughters to recover the residuary legacy that the general rule is that a legacy to A “and his heirs” is a legacy to A alone, the word “heirs” being a word of limitation and not of substitution; that in the case of a legacy to A “or his heirs” tne general rule is otherwise; that a special meaning of words may be accepted if such intention can be gathered from the whole will when construed with the aid of such extrinsic evidence as the law makes competent, and that the -word “and” may thus be construed in the sense of the word “or” if such meaning is plainly indicated; that in this case the legacy was not in form to the heirs of the husband, but to the husband alone, with-a formal habendum clause used to define his title and tenure and that if a case could be imagined where a technical habendum clause like this could have any other meaning attributed to it besides that which it has borne from time immemorial, there is nothing to justify such a construction in this case.—Held further, that if the words to be construed were a part of the language employed to effect a legacy instead of being a part of the language employed to define the title and tenure of the legatee, and if the word “and” might be construed as “or,” still it would seem that the gift over would be void for uncertainty.
    3. In a suit to construe a will, allegations in the bill as to the declared purpose of testatrix, her understanding of the meaning and legal effect of the language of her will, her instructions to her counsel with reference to the drafting of her will, and her intentions in refraining from changing her will during the last years of her life, must be excluded from consideration.
    On motion to strike out bill.

      Mr. William 17. Watson, for the motion.

      Mr. Cornelius Dor emus, contra.

   Stevenson, Y. C.

The will of Mrs. Euphemia Conklin, deceased, contains the following residuary clause:

“All the rest, residue and remainder of my estate, both real and personal, whatsoever and wheresoever as well that which I now have as that which I may hereafter acquire or die possessed of or entitled to including all legacies heretofore mentioned which may lapse and any portion of my estate that I have not hereinbefore effectually or sufficiently disposed of I give, devise and bequeath unto my dear husband Peter L. Conklin to have and to hold the same unto him and to his heirs, executors, administrators and assigns forever.”

The complainants are the two stepdaughters of the testatrix, the children of her husband, Peter L. Conklin, by a former marriage. The defendants are the administrators with the will annexed of Mrs. Conklin, and her next of kin and their representatives, embracing a large number of cousins of the testatrix of various degrees. Peter L. Conklin died in the lifetime of the testatrix.

The object of the bill, in its present form after amendment, is to establish the right of the complainants to take the residue of their stepmother’s estate under the terms of the residuary clause above set forth.

We need not inquire whether, under the facts of this case, the status of the real estate of which Mrs. Conklin died seized can be determined in this suit. 3 Pom. Eq. Jur. § 1155; Torrey v. Torrey, 10 Dick. Ch. Rep. 410. The bill may be treated as a bill to obtain a judicial construction of a will in order to establish and recover a legacy. Regarding the suit in this aspect, the jurisdiction of this court is beyond question. 3 Pom. Eq. Jur. § 1156; Frey v. Demarest, 1 C. E. Gr. 236; Hedges v. Norris, 5 Stew. Eq. 192.

The amended bill, by inadvertence, as counsel for the complainants admitted at the argument, retains a prayer that, in case it should be adjudged that the residuary estate in question does not belong to the complainants, its distribution be directed. among the next of kin of the testatrix who shall be found entitled thereto. This court, upon this bill in its present form, can only entertain the question whether or not the complainants are entitled to this residuary estate.

The present administrators are not in court asking for any instructions; they move to dismiss the complainants’ bill, specifying the grounds of objection with great minuteness. These grounds are all contained in the proposition that, according to-the case made out by the bill of complaint, the legacy of the residue made by Mrs. Conklin to her husband lapsed upon his death, and that therefore, as to such residue, she died intestate.

It is established law that a legacy to A “and his heirs” lapses upon the death of A in the lifetime of the testator, the word “heirs” being a word of limitation and not of substitution. Hand v. Marcy, 1 Stew. Eq. 59; Palmer v. Munsell, 46 Atl. Rep. 1094; Kimball v. Story, 108 Mass. 382; Armstrong v. Moran, 1 Bradf. 314.

In the case last cited Surrogate Bradford says (at p. 315) : “There seems to me no hazard in speaking too strongly in saying that no ease of authority can be found in the books where a gift to A ‘and his heirs’ has been sustained in favor of the next of kin on the death of A in the life of the testator, unless an intention to substitute the next of kin in the place of the deceased legatee, so as to save a lapse, could be deduced from some other-clause or expression in the will.”

The rule is otherwise in case of a lgacy to A “or his heirs” for very plain reasons. Brokaw v. Hudson's Executors, 12 C. E. Gr. 135; Huston v. Read, 5 Stew. Eq. 591; Gittings v. McDermott, 2 Myl. & K. 80; Hand v. Marcy, supra.

The rules above referred to are subject, of course, to the limitation expressd by Surrogate Bradford. The ordinary or technical meaning of words may be disregarded, and a special meaning-accepted, if such intention of the testator can be. gathered from the whole will when read in the light of the circumstances which surrounded the testator when he made his will—when construed' with the aid of such extrinsic evidence as the law malíes competent.

The word “and” in Hie phrase “and his heirs” may be taken in the sense of “or” if sncli meaning is plainly indicated. Hawn v. Banks, 4 Edw. Ch. 664; Armstrong v. Moran, supra.

The burden upon the complainants in this case is indeed great. No case has been cited of a gift by will to a person named, effected by legal phraseology including a technical and accurate habendum clause, where the word “heirs” in the habendum clause has been construed in any other way than as a term of limitation. The gift here is not only a legacy, but a devise of land, so that the habendum to the heirs of the devisee was added in conformity with a common usage. In most of the cases which draw the distinction between the force of the word “and” and the force of the word “or” the legac}r, according to the strict grammatical form of the phraseology employed, is given, not only to the lega-» tee named, but to other persons who are designated as his heirs. The rule of construction, however, founded largely upon technical usage, is settled, as we have seen, that a gift in form to A and his heirs is a gift to one donee, not two. It is only necessary, however, to substitute the word “or” for the word “and” in order to give the terms which, in form, import a gift to heirs their ordinary meaning and effect.

But in the case under consideration no words of gift to heirs ■or to any other person, or class of persons, besides the single legatee named, are in any way employed. The gift to Peter L. ■Conklin is absolute. The ancient technical formula constituting the habendum clause is used to define his title and tenure. It is 'difficult to imagine a case where it would be possible to attribute to such an habendum clause any other function than that which it has performed from time immemorial in all sorts of written transfers of property.

If the words to "be construed were a part of the language employed to effect the devise and legacy instead of being a part of the language employed to define the title and tenure of the devisee and legatee, and we might substitute the word “or” for the word “and” at will, still it would seem that the gift over would be void for uncertainty. Waite v. Templer, 2 Sim. 525; Gittings v. McDermott, supra; Kimball v. Story, supra.

This uncertainty is so apparent that it creates a very high degree of improbability that a testator could have any donativepurpose beyond the legatee whom he names when he employs such language.

Nothing appears upon the face .of the will, nor is anything-alleged in the bill of complaint of which this court can take-cognizance, which can change ’ the meaning of this residuary clause. It may be, as would appear from the bill, that Mrs. Conklin misunderstood the meaning and legal effect of the residuary clause as her counsel had drawn it. She may have actually intended twenty years before her death, when she made this-will, to dispose of hej property as it is alleged she thought twenty years later she had disposed of it.’

The allegations in the bill in regard to the actual and declared purpose of Mrs. Conklin, her instructions to her counsel with reference to the drafting of her will and her belief in regard to the legal effect of her will as drawn, must be excluded from consideration. Leigh v. Savidge, 1 McCart. 124; Griscom v. Evens, 11 Vr. 402; Burnet v. Burnet, 3 Stew. Eq. 595, 598; Cleveland v. Carson, 10 Stew. Eq. 377.

The bill does not set forth fully the circumstances which surrounded Mrs. Conklin when she made her will.

The will was made March 12th, 1881, twent3r 3rears before the testatrix’s death and nineteen years before the death of her.husband, the residuary legatee. The ages of these various parties are not stated but it is inferable that the testatrix and her husband and his two daughters, the complainants, constituted one family. What the estate of the testatrix amounted to at the time she made her will is not set forth, but it appears that her total estate at the time of her death was about $120,000, one-sixth of which-was real estate and five-sixths personalty. The testatrix made a gift of $10,000 to each of the complainants and gave other legacies amounting to about $25,000. She then not only bequeathed the residue of her estate to her husband, but she appointed him one of her executors.

The testatrix thus made express provisions for each of the complainants. There is nothing to show that her full donativepurpose with respect to them was not effected by the substantial legacies which she gave to them. There is no legal evidence-which suggests that in disposing of her residuary estate she contemplated the situation which would exist in case she survived her husband. Cowley v. Knapp, 13 Vr. 297.

We have to deal with Mrs.. Conklin’s will as she made it, not as she thought she made it, or as she possibly or probably would have made it if she had been correctly informed as to the legal effect of the language which she had employed in her will and had thereupon executed another will.

There are allegations in the bill which indicate under what •circumstances and with what intentions Mrs. Conklin refrained from changing her will during the last years of her life, a matter which is not the subject of investigation in this case. It is safe to say that-in many cases testators repose for years upon an .altogether erroneous construction of their own wills. Sometimes they discover their errors in time and sometimes, it must be .admitted, they do not. Coxirts provide no relief from such misfortunes.

I shall advise that the bill be dismissed.


author: Magus, Ordinary.

text:
    In re William S. Devine, administrator, &c.
    [Filed May 14th, 1901.]
    1. Upon an application to an orphans 'court by an administrator cum testamento annemo for the approval of a sale of testator’s lands, made by him under the provisions of the “Supplement to an act entitled ‘An act concerning executors and the administration of intestates’ estates’ [Revision], approved March twenty-seventh, one thousand eight hundred and seventy-four, regulating the sale of lands by administrators with the will annexed, and defining their power,” which supplement was approved April 6th, 1888 {Gen. Stat. p. 110), the court may not consider or adjudicate upon a claim that the lands descended to testator’s heirs-at-law or were specifically devised by his will and were not within the power of sale conferred by the will.

      2. But the administrator applying for approval of his sale of testator’s lands must establish by proof his right to act as administrator cum testamento annexo in this state in order to give jurisdiction to the orphans court.
    3. There being no original jurisdiction in the prerogative court to approve such sales by administrators, additional proofs in this court are not admissible, and an appeal from the order of the orphans court must be decided upon the evidence before that court.
    4. When the fair value of the land may be affected by adverse claims of title, there should be sufficient proof of the nature and extent of such claims to enable the orphans court to determine whether the sale has been made at a fair price therefor.
    On appeal from Atlantic count}’ orphans court.

      Mr. George A. Bourgeois, Jr., for the appellants.

      Mr. George A. Vroom and Mr. David J. Pancoasi, for the respondent.
   Magus, Ordinary.

This is an appeal by persons alleging themselves aggrieved by a decree of the Atlantic county orphans court, dated February 1st, 1900, made under the following circumstances:

The respondent, William S. Devine, filed in that court a petition, verified on December 16th, 1899, setting out that he was the administrator de bonis non cum testamento annexo of William Fennel, late of Philadelphia, deceased; that said Fennel died seized of an equitable estate in fee-simple in two tracts of land in Atlantic county; that Fennel died testate, and that by his last will and testament, duly admitted to probate in the State of Pennsylvania, he directed his executors, or the survivor or survivors of them, to sell his estate, both real and personal, and make deeds therefor; that the executors named in said will had died or been relieved of their trusts, and Devine had been appointed sole administrator de bonis non cum testamento annexo by the register of wills in Philadelphia,-and that an exemplified copy of the will was about to be filed in the office of the surrogate of Atlantic county.

The petition further showed that in pursuance of the power of sale contained in FennePs will, petitioner had, by a written inst-rument dated August 5th, 1899, contracted to sell the land in Atlantic county to one Chandler for $6,000, to be paid for in cash upon the delivery of the deed, and that said sum was the fair value of said lands.

The prayer of the petition was that the orphans court should approve and confirm the sale upon the terms stated therein, under such conditions as to security as the court should think proper.

When the petition was considered by the orphans court certain persons, who were shown to be heirs-at-law of' Fennel, and some of them beneficiaries under his will, appeared and contested the order which Devine asked.

The first ground upon which it was contended by them that Devine was not entitled to the order prayed for was that the lands in question, or the interest which the testator had therein, had either descended to his heirs-at-law dr had been devised by his will, so that they, were not within the power of sale conferred by said will.

From the opinion of the court below it appears that it was deemed to be established by proofs or admissions (which do not appear in the case) that the lands described in the petition were part of a tract which was purchased many years ago by three persons, viz., William Parker Nowlin, Charles Harlan and said Fennel, and paid for by them; that the tract was conveyed to said Harlan, and that all the purchasers had died, Harlan retaining the title to his death. Under the supposed circumstances Fennel was the owner of an equitable title to an undivided one-third of the tract. It was also deemed to be established that Harlan died seized of the legal title t.o the tract and devised it to one Mary Roberts, who, for the purpose of satisfying the equitable interest which Fennel had in the tract, conveyed to respondent (naming him as administrator of Fennel) a portion of the tract in fee. Assuming that the title to such portion thus vested in respondent, his title was obviously held in trust for FennePs representatives.

The contention below (and it has been repeated here) was that the will of Fennel operated only upon the real estate of which he died seized, and the personal estate of which he died possessed, and did not affect tbe equitable interest in the real estate in question.

The petition of Devine was filed under the provisions of the

“Supplement to an act entitled ‘An act concerning executors and the administration of intestates’ estates’ [Revision], approved March twenty-seventh, one thousand eight hundred and seventy-four, regulating the sale of land by administrators with the will annexed and by the administrators de horns non with the will annexed, and defining their power,”

which supplement was approved April 6th, 1888. Gen. Stat. p. 1429. It is settled in this court that, under the provisions of the act in question, an administrator de bonis non with the will annexed may make sale of the real estate of testator if the will had conferred power upon the executors named therein to make such sale. Griggs v. Veghte, 2 Dick. Ch. Rep. 187. The power of such administrator is, however, declared by the act not to be valid until the terms of the sale shall have been submitted to the orphans court of the count in which the lands proposed to be sold lie and approved by said court.

The contention that the interest in the lands in question, which Fennel had, did not pass under his will but descended to his heirs, or (if the will operates thereon) was devised to the parties named therein and was not made the subject of sale by the executors, is, in my judgment, not to be considered. The orphans court, in a matter arising under the act above cited, is not entrusted with jurisdiction to determine the title to testator’s lands. Its jurisdiction is restricted to a determination whether the contract of sale made by the administrator shall be approved. When application is made to the orphans court to order lands to be sold for the payments of debts of a deceased owner, no person may intervene and contest the title of the deceased and prevent an order for such sale upon the ground of a lack of such title. Swackhamer v. Kline, 10 C. E. Gr. 503. In proceedings for partition before the orphans court one claiming the land by title paramount .to that of the parties to the partition proceedings, may not object to an order appointing commissioners nor appeal from such order. Raleigh v. Rogers, 10 C. E. Gr. 506. In this analogous case it is obvious that the action of the court in •approving the terms of the sale reported to it in no respect .aggrieves or injures any person having a title by descent from Fennel, or by devise under FenneFs will. If the administrator has no authority to sell, an order of the orphans court will not confer it upon him.

Yet I deem it obvious that the jurisdiction of the orphans •court to approve or disapprove of the terms of a sale can only be invoked b3r one who exhibits by proof a right to make sale, 'if the will has conferred power of sale upon the executors named therein. If the will is one probated within the state, the applicant must show that he has been duly appointed administrator ■cum testamento annexo by some court having jurisdiction to make such appointment. If the will is a foreign one, it must .appear that the applicant has been appointed administrator cum testamento annexo, and also that he has taken such proceedings within the state as will give him a right to act within this jurisdiction.

The appellants, or some of them, are beneficiaries named in the will of Fennel, among whom the proceeds of any sale of lands in question will be distributed. They contend that the sale was contracted for at a price below the real value of the land at the time the contract was made and that the land has largely increased in value since then. They could therefore object to the authority of respondent to make the contract of August 5th, 1899, and unless such authority appears they could question the jurisdiction of the orphans court to approve the sale contracted for.

It is impossible to discover any evidence before the court below justifying it in assuming jurisdiction to approve the sale by respondent.

A copy of FenneFs will and its probate in Pennsylvania, duly •exemplified under the act of congress, was put in evidence, but that conferred no authority upon the applicant to act in this state.

The opinion below recites an agreement between the proctors that such exemplified copy should be admitted, used and accepted as "filed with the court.” But filing such exemplified cop3r with the orphans court conferred no power on the respondent. Such power could only be acquired by letters issued under section 23 of the Orphans Court act of 1898, or by filing' and recording in the office of the surrogate of the county an exemplified copy of the will, probate and letters (if it thereby appears that the will was executed in accordance with our laws) under section 24 of the last-named act. P. L. of 1898 p. 715.

Counsel for the parties have produced before me and consented that it should be considered as part of the record, a certified copy , of the record in the surrogate’s office of Atlantic county of the will of Fennel, with the proofs and the letters testamentary issued in Pennsylvania to the executor named therein. It is certified to have been filed and recorded in Atlantic county, March 24th, 1900. As the decree appealed from was made February 1st, 1900, this evidence was not presented and was not capable of being presented to the court below.

The power of the court to take or direct the taking of additional proofs to be considered on the hearing of an appeal from an orphans court, is, in my judgment, limited to those causes in which the court has original as well as appellate jurisdiction,, as was intimated in Rusling v. Rusling, 9 Stew. Eq. 603; Sayre v. Sayre, 1 C. E. Gr. 505. As this court has no original jurisdiction in respect to the approval of such contracts, the appeal from orphans court decrees upon such matters must be determined upon the evidence which was before the court.

It is not improper to suggest to counsel that the certified record from the office of the surrogate seems to be deficient in that it does not exhibit the appointment of respondent as administrator cum testamento annexo. To establish respondent’s status as administrator, the record should show' his appointment.

As there was no evidence before the orphans court exhibiting respondent’s status and right to invoke the judgment of that court, I think jurisdiction to consider the petition failed.

As the question thus disposed of is novel and may not be approved, I deem it proper to express the conclusions I have reached as to the further claim of appellants.

They assert that the sale was below the fair market value of the land on August 5th, 1899, when the contract was made.

Upon this contention evidence of market value after that date was not admissible, except so far as it tended to show the value at that date. Increase of value afterwards should have no effect in inducing disapproval of the contract of sale, if it was •one proper to be made at the time.

But as to the fair market value at the time of the contract, the evidence is extremely contradictory and unsatisfactory. From the examination of witnesses by counsel, it would seem that there .are various claims made to the lands contracted to be sold adverse to the title of Fennel. The nature and extent of such claims arc not disclosed by any proof. Since the court is to adjudge whether the terms of sale should be approved, the administrator, .seeking confirmation and approval of the sale, should make 'it .appear that the consideration of the sale is fair. He is not bound to make out the exact title which he can convey, but he should put the court in possession of the facts respecting claims upon the title, such as the amount of the lands involved, the general character of the claims and the probabilities, so far as ascertainable, of successful prosecution of the claims. Unless the court has some information on such matters, its judgment that the sale be approved would be mere conjecture. When the administrator knows of such outstanding claims and admits that they affect the market value of the lands, he cannot ask that his con: tract to sell at a specified price shall be approved without giving the court such proof in respect to the claims as will enable it to adjudge whether the price is fair and should be approved. The court below was not furnished with such proof and in its absence the sale should not have been approved.

For both reasons I think the decree below must be reversed.


author: Macie, Ordinary.

text:
    John Schuchhardt et al., appellants, v. Charles Schuchhardt et al., respondents.
    [Filed June 6th, 1901.]
    1. Upon a caveat against the admission of a will to probate, caveators petitioned the orphans court to certify into the circuit court the questions raised pursuant to section 19 of the “Act respecting orphans courts and relating to the powers and duty of the ordinary and the orphans courts and surrogates,” approved March 27th, 1874. Gen. Siai p. 2359. That act had been superseded by the act of the same title, approved June 14th. 1898. P. L. of 1898 p. 715. The provisions of the latter act in respect to-certifying such questions to the circuit court being in all respects like those of the former act, and the procedure and practice in the cause being ¡n conformity with the act in force—Held, that a decree made thereon is not invalid because the authority for the proceeding was miscited.
    2. Upon an appeal from a decree denying probate upon the finding of a jury that the contested writing was not the will of testator, because it was the product of undue influence, heard upon the evidence which was-before the jury, their verdict will induce and require careful scrutiny before reaching a result not in accord therewith, but will have no other effect.
    3. The’burden of establishing the influence which is “undue,” rests on those who assert it. Mere possession of influence’ and opportunity and motive to exert it, will not suffice. It must appear either directly or by justifiable inference from facts proved that the influence was exerted and operated to dominate testator and coerce him to make a disposition of his property which he would not otherwise have made.
    4. When undue influence is claimed to be established by inference from certain facts proved, and, upon all the facts proved, an equally justifiable inference may be drawn that the will executed was what testator would have made under the circumstances, the burden on contestants is not supported.

      Mr. James A. Gordon, for the appellants.

      Mr. Horace L. Allen, for the respondents,
   Macie, Ordinary.

The appeal in this case is from a decree of the orphans court of the county of Hudson, made June 8th, 1900, refusing to admit to probate a paper-writing purporting to be the last will and testament of George Schuchhardt, deceased.

It appears by the transcript that the paper-writing in question was offered for probate on February 6th, 1900, by John Schuchhardt and John S. Scheffling, who were the executors, named therein, and that Kate Schuchhardt, the widow of the deceased, and Charles Schuchhardt, one of his sons, filed caveats against its admission to probate and petitioned the orphans court to certify into the circuit court of that county the questions which were thereby raised, which petition was granted. -

The petition of the caveators to certify the matter to the circuit court was declared therein to be made under section 19 of the act entitled “An act respecting orphans courts and relating to the powers and duties of the ordinary and the orphans courts and surrogates” [Revision], approved March 27th, 1874. Gen. Stat. p. 2359. The act thus appealed to had been superseded at the time the petition was presented by the act of the same title, approved June 14th, 1898. P. L. of 1898 p. 715. For although the latter act contained no express repealer of the former act, yet it evinced a plain legislative intent that it was to take the place of the former act, and to govern the procedure and practice of the courts to which it applied. By sections 18 and 19 of the latter act provisions are made for certifying such questions into the circuit court and for the return by the circuit court of its proceedings thereon, similar in all respects to the provisions of the former act. Since the course of the procedure in the orphans court and the circuit court, disclosed by the transcript, was clearly within the provisions of the latter act, and the practice adopted was that prescribed thereby, a decree made thereon should not be held' invalid for a mere error in the citation of the authority for the proceeding. '

The transcript shows that the circuit court certified to the orphans court that'an issue had been framed by the circuit, court and tried before a jury, and .that the jury had found that George Schuchhardt, deceased, signed, published and declared the paper-writing offered for probate as his last will and testament, and that at the time said deceased was of sound and disposing mind, memory and understanding, sufficient to understand and declare it; but the jury also found that the execution of the paper-writing in question was procured by undue influence and that it was not, in fact, the last will and testament of the deceased.

In conformity with the provisions of section 19 of the act of 1898, the circuit court returned to the orphans court the proceedings before it, with the verdict of the jury and the testimony taken and a copy of the charge to the jury. Thereupon the orphans court passed a decree refusing probate of the will, in accordance with the finding of the issue, as it was required to do by the provisions of the section last cited.

The effect to be given to a verdict certified into the orphans court and a decree made thereon, on an appeal to this court under the provisions of the act of 1874, was well settled. The court of errors declared that upon such an appeal there was open for consideration in this court not merely the propriety of the decree, but the right to probate of the will, and upon such an appeal this court might decide the question on the evidence which was before -the jury, if sent here, together with additional proofs taken in this court, if any were ordered, or if the evidence is not sent here, then updn original proof taken under the practice of this court. Rusling v. Rusling, 9 Stew. Eq. 603; Smith v. Smith, 3 Dick. Ch. Rep. 566. The similar provisions of the act of 1898 must'receive the same construction.

The evidence taken in the circuit court has been duly sent to this court. No application for taking further proofs has been made. Whether, therefore, the will should be admitted to probate is to be determined by me upon the evidence which was before the jury. Their verdict thereon should induce careful scrutiny of the evidence before a result not in accord therewith should be reached, but the verdict can have no other effect.

The evidence establishes the fact that the paper-writing in dispute was executed by George Schuchhardt with all the formalities required by law to make a good testamentary disposition of his property, and that at the time of its execution he was possessed of testamentary capacity. In these respects the conclusions of the jury are in accord with the conclusions of this court. This result will- require the admission of the paper to probate, unless the proofs establish the contention that it was the product of undue influence and not the act of testator’s own will.

The burden of proof of undue influence is upon those who assert it. Dumont v. Dumont, 1 Dick. Ch. Rep. 223; Earle v. Norfolk and New Brunswick Hosiery Co., 9 Stew. Eq. 188; affirmed, 10 Stew. Eq. 315; Turnure v. Turnure, 8 Stew. Eq. 437. When the testamentan^ capacity is undoubted, this burden will not be supported by mere evidence that some person had an opportunity to exert or was possessed of influence over the testator. It must be made to appear, either expressly or by justifiable and fair inference from circumstances proved, that such influence was, in fact, exerted, and that it was so exerted as to dominate and control the will of testator and coerce him to make a testamentary disposition of his property which he would not otherwise have made.

In support of the decree, the contention is that the proofs conclusively show that, some ten or twelve years before the execution of the will, the testator, although a married man with a family of children, had illicit intercourse with one M. L., by whom he had a child called Georgianna, whom he recognized as his; that they justify the inference that the meretricious intercourse between testator and M. L. continued at the time the will was executed; that M. L. asserted and threatened to use influence on testator to prevent respondents from receiving any of testator’s property, and that the contents of testator’s will indicate that she had succeeded in thus influencing him.

The illicit intercourse which resulted in the birth of the child, Georgianna, is clearly established. Testator made no concealment of his paternity. On the contrarjr, he made a regular allowance to the mother in aid of the child’s support; he paid for music lessons for her; he took her with him to places of amusement,, and even to his own house when his family were living with him; he exhibited great affection for her and declared to several of his friends that he intended to make provision for her out of his property. ,

Proof that testator maintained illicit relations with M. L. at the time of the execution of the will is by no means convincing. His conduct, from which that inference is sought to be drawn, is not inconsistent with such honest intercourse between them as would naturally result from the fact that their child, whom he was fond of, lived with her. There is some proof that might justify the suspicion that after the execution of the will, although she was then married to one Sawyer, their relation was meretricious. But the inference in either case encounters the positive denial of the only survivor.

Proof that M. L. threatened to exert influence to prevent respondents from obtaining any share of the property comes alone from the respondent Charles. It is positively contradicted by her. The other respondent, who was present at part of ihe interview when, according to Charles’ testimony, the threat was made, and a disinterested witness, also present, did not hear it.

But if the evidence would justify the belief that improper relations between testator and M. L. were maintained up to the time the will was made and that she had threatened to exert influence upon the testator in respect to his propert}r, it remains to inquire whether her influence is shown to have been, in fact, exerted and to have coerced him into doing what he would not otherwise have done.

The influence of" an immoral relation maintained by a testator with his mistress will not raise a presumption against a will which leaves to her all the property he may dispose of by will, though it will call for close scrutiny of the circumstances. Arnault v. Arnault, 7 Dick. Ch. Rep. 801.

The argument, however, is that it appears that by reason of their illicit relation M. L. had opportunity to exercise influence upon testator; that she had threatened that respondents shoirld get none of testator’s property, and that the will practically excludes respondents from all benefit thereunder, the inference that she exercised her influence and induced testator to exclude respondents from his bounty must be drawn.

It is first observable that the inference thus sought to be drawn encounters not only the denial by M. L. of having uttered any such threats, but her equally positive denial that she exerted or attempted to exert any influence upon testator in respect to his testamentary disposition of his property. Such a denial from the lips of a mistress to whom her paramour had left, by will, the whole or a large part of his estate to the exclusion of lawful objects of his bounty, would be looked at with suspicion, and might not be accorded much credit. But the will before me makes no provision whatever for the woman with whom testator is presumed to have lived and under whose influence he is claimed, to have acted.

It is, however, insisted that the will makes provision for testator’s child by M. L. and that such provision is probably larger than it would otherwise have been, because of the exclusion of respondents from testator’s bounty. It is argued that the mother must have desired that the child should benefit by her father’swill, and that she may be presumed to have exerted influence in favor of the child notwithstanding her denial.

If testator voluntarily told M. L., as he did others, that he-intended to make provision for their child by his will, I see no reason to discredit her denial of any attempt to influence him. to do so.

If I discredit'her denial, what influence should I infer she-exerted upon testator in respect to their child ? If testator made-no provision for the child she would have been dependent upon, her mother alone. M. L. might well represent to testator that fact, and even urge and persuade him to make provision for the-child, although the bounty for testator’s family was thereby diminished. Testator owed a moral duty at least to make such provision, and arguments and even persuasions to do that duty would not be undue, unless they appear to have produced a disposition of his property which he would not otherwise have made. Hughes v. Murtha, 5 Stew. Eq. 288.

It is not sufficient to preseut facts from which the exertion-of undue influence may possibly be inferred. The existence of interest and the fact of opportunity to exert it will not suffice to establish undue influence. Turnure v. Turnure, 8 Stew. Eq. 437; affirmed, 10 Stew. Eq. 629. If from all the facts and circumstances existing when the will was made an inference-can be drawn that its provisions are such as he intended them to be, and such as he would have made if no influence had been exerted upon him, the latter inference is at least as probable as-the. former, and Ihe Imrden of proof in the attack upon the will is not sustained.

The inference that undue influence prevailed over testator’s intent and induced him to do what he would not otherwise have done, must stand upon preponderating proof, excluding other reasonable inference.

If the character of testator and the circumstances existing at, the execution of the will naturally and reasonably explain its provisions so that it may be fairly inferred that it was such a will as he would have made, the inference that it was the product of influence will not be justified.

The proof shows that testator was a man of determined character and resolution.

At the execution of his will testator’s family consisted of his wife, his sons George, William and Charles, and his daughter. Lillie. Some time before testator had discovered that his wife had encouraged his daughter to receive the addresses of a man named John Cutter, whom lie distrusted and whom he had forbidden his daughter to associate with. A violent altercation ensued and the wife left the house taking with her the daughter, and neither ever returned to testator. The daughter married the man in question, and within two months thereafter was delivered of a •child by him.

With the son George testator was intimate and affectionate.

The son William had taken to evil courses and is said to have .served a term in state prison.

The son Charles had engaged in a quarrel with the father and procured his father’s arrest, which it is proved much incensed testator.

It is not necessary to determine whether testator’s indignation at the conduct of his wife and children was justified, or whether he ought not to have overlooked it and forgiven them. If the proofs show that the indignation existed and for a cause that might occasion it, and the disposition made by the will would be the natural result thereof, the attribution of such disposition to undue influence cannot be supported.

Most of testator’s property was real estate. Some'of it stood in the joint name of his wife and himself, and upon his death slie lias apparently become the owner. In the rest of the real estate she has her dower. Moved by her desertion of him and her encouragement of his daughter to disobey him, the failure of testator to make any provision for her was a natural result of his resentment.

To William the will bequeaths $25 and to Charles $5. These small legacies may well be attributed to testator’s disapproval of their conduct. .

After the small bequests above stated the testator bequeathed’ and devised all his estate to the executors and the survivor of them in trust. It is unnecessary to state the details of the trust. It is sufficient to say that one-tliird of the estate affected thereby goes to George, testator’s sou, one-third to Georgianna, testator’s illegitimate daughter, whom he calls, in the will, Georgianna Schuchharclt, and the other one-third goes to testator’s daughter, Lillie, provided she is not married to John Cutter. In ease of such marriage, the share otherwise provided for her goes to George and Georgianna. The conditional gift to his daughter, Lillie, is a natural result of his feeling in respect to her disobedience and desertion of him.

Taking into consideration the situation of the family, the circumstances of testator, the resentment he had against some of them, the good will he had toward the remaining son, the evident affection he had for his illegitimate child and his purpose-to provide for her, the will may be inferred to have been the product of his own will and not to have been procured by undue-influence.

There is nothing to justify the verdict which finds that the will- of testator was dominated by the mistress or any other person. I am able to find no ground upon which I can pronounce-this will invalid.

The decree must be reversed and a decree admitting the will to probate must be entered.


author: Reed, Vtce-Ordinary.

text:
    Mary J. Ramsdell, appellant, v. John J. Streeter, respondent.
    [Filed March 5th, 1901.]
    Where testatrix’s mental capacity was not shown to have been affected .at the time she made her will, evidence that the principal legatee was not related to her, but was a mere friend of the family, and had assisted her in the management of the estate, and that during the three days between •the drawing and execution of the will testatrix talked with him about the same, and he had spoken in letters and in a newspaper of a trust respecting the property,, was not sufficient to show undue influence, where he had nothing to do with the execution of the will, and testified that he did not know how she intended to dispose of the property until after the will was •drawn.

      Mr. Henry S. Alvord and Mr. David J. Pancoast, for the appellant.

      Mr. N. Henry Stevens and Mr. Howard Garrow, for the re.spondent.
   Reed, Vtce-Ordinary.

Caroline P. Dexter, on May 18th, 1899, made her will, and died •on July 20th. By her will she gave to William E. Thompson $1,000. He was a grandson of a sister of the deceased husband of testatrix. She gave E. Martin Dexter and Charles E. Dexter •each $200. They were nephews of her deceased husband. She left'the residue of her estate to John J. Streeter, who was no relation of testatrix or her husband. She left no children. Her ■two nearest relatives were a niece, Mary J. Ramsdell, and another niece, Ellen T. Stanley. There were also grandnieces. .She left .an estate estimated at from fifty thousand dollars to sixty thou■sand dollars, of which all but about fifteen thousand dollars had 'been left to her by her husband who had predeceased her on February 1st. The attack made upon the will is that it was procured 'by Streeter by the use of undue influence.

Streeter liad been a friend of testatrix and of her husband during their joint lives, all living in Vineland. He was the owner and editor of a Populist newspaper printed and published in that place, for which paper testatrix occasionally wrote.

After the death of the husband of testatrix Streeter had devoted a great deal of time to looking after her. He had stayed with her at night, had cared for her when she was sick and had taken charge of her business which the death of her husband had thrown upon her. She had a high regard for him and was very grateful for his kindness. She had no kin of close relationship, as already observed.

There is no evidence of mental decline nor of mental confusion, apart from that which was naturally occasioned by the death of her husband and the consequent devolution upon her of the management of his estate. There, is no testimony, apart from the admissions of Streeter himself, that he unduly influenced the testatrix in the disposition of her property by will, Streeter was undoubtedly in a position by which he could have done so, and although the testatrix was of a mental capacity equal to any woman, yet his confidential relations with her throws the burden upon him of showing the fairness of her testamentary act in his favor. He denies that he ever said anything to her about this matter, or indeed that he knew what she had done until after the will was written. He says that this talk with her was while the instrument was in her hands, during the three days between the time the scrivener had prepared it and the day it was executed. He says that in this conversation he made no proposition or suggestion whatever.

The attack upon the will is grounded entirely upon the legatee’s own admissions.

It is insisted that it appears from those admissions that the testatrix gave the residue of her estate to Streeter to carry out certain purposes upon which they had agreed.

It is not sufficient that it should appear that testatrix intended that the property should be devoted by the legatee to purposes other than his personal use. Unless he induced this disposition by expressly or impliedly assenting to the expressed purposes of the testatrix, it would not affect the gift at all.

Nor if he did so induce the testatrix would it avoid the will, for if the purposes were legal and ascertainable, he would be compelled to execute the trust (Vreeland et al., Executors, v. Sarah A. Williams et al., 5 Stew. Eq. 734), and if they were illegal or unascertainable he would be held to be a trustee for the heirs or next of kin. 2 Underh. Wills 220; In re Boyes, L. R. 86 Ch. D. 531. It must further appear that he fraudulently procured the execution of the instrument by unduly influencing her to make her will to accomplish these purposes.

The admissions of the legatee are introduced, not as impeaching but as substantiative evidence, and were not objected to.

These admissions are of lavo kinds. The first class consists of those contained in his letters and in the articles published in his newspaper, “The Independent." The second class consists of those verbal admissions testified to have been made by him to certain witnesses. An examination of the first class of admissions do not, in my judgment, show that any undue influence was exerted upon the testatrix. Pie speaks of a trust and of knowing the views of the testatrix and of wishing the assistance of the other legatees in disposing of the property, but ho nowhere sa}rs how he knows her views, or that there was any specific conversation in respect to the execution of the will. He evidently wrote the letters to placate the disappointed legatees and to avoid a contest. He probably thought, as he says he thought, that testatrix washed that some scheme should be carried out and he then intended to carry it out when he wrote the letters. They fail to show that he urged any such scheme upon her attention or insisted that she should give the property to him to bo disposed of for any specific purpose.

The verbal admissions, as sworn to, are much stronger and go so far as to make him say that he framed the will and that he influenced her in remembering other legatees.

The reproduction of the words of another by memory is a difficult undertaking, and when the memory is influenced by the unconscious bias of personal interest, its recollection is to be received with great circumspection. Now I have no doubt that he talked very much in the same way that he wrote. I do not think, however, that he said that he framed the wall, for such a statement seems to be inconsistent with the facts. The will was framed from a copy given to testatrix, at her request, by a friend. It was actually drawn by Mr. Benthall from personal direction of the testatrix. Of course the legatee may have framed the will by conversation with her, which influenced her directions to the scrivener, but I do not think so. Whether his admissions are sufficient to show that he held this property as trustee for some ascertainable purpose, or for the heirs, is not a question how pressing for solution. Upon the question which is before me, namely, whether he fraudulently procured the execution of this instrument by unduly pressing the testatrix to make this disposition in his favor, for the purpose of carrying out any such purpose, I am of the opinion that he did not.

The decree below will be affirmed.


author: Yan Syckel, J.

text:
    Frank R. Chandler, executor, et al., appellants, v. Lewis A. Thompson, guardian ad litem, respondent.
    [Filed March 4th, 1901.]
    Where no express power to sell lands is given in a will to the executor, such power will not arise by implication, unless the implication is clear from the terms of the entire will, and it must be found that some duty has been imposed by the testator upon the executor, which necessarily carries with it a power of sale, in order to enable him to perform the duty.
    On appeal from a decree advised by Vice-Chancellor Stevens.
    George P. Pomeroy, of the State of Illinois, died in the year 1887, having first executed a will and a codicil thereto in due form of law to pass real estate, which will and codicil are as follows:

      “Know all persons, that I, George P. Pomeroy, now residing temporarily in Paris, Prance, do hereby make and publish this my last will and testament, and hereby revoke, cancel and annul the trust agreements executed by me to Edwin Cowles, L. Prentiss and Prank R. Chandler, and bearing date March 6th, 1883, and to Mrs. Elizabeth Cowles and Elmira P. Chase, and- bearing date October 6th, 1884, and to the effect aforesaid, I do hereby order and dispose as follows, that is to say:

      “First. I direct that all my just debts and funeral expenses be first paid out of my estate at my decease.

      “Second. I hereby give, devise and bequeath to my beloved son, Eugene C. Pomeroy, all my estate and property of every description, real and personal, and wherever the same may be situate, to vest in him at my decease, but not to be paid over or delivered to him until he shall have attained his majority, and until that time to be held and managed by my executors, 'as hereinafter named.

      “Third. In case of the death of my son, Eugene C. Pomeroy, before. attaining the age of twenty-one years, and without leaving issue surviving him, then and in that event I give, devise and bequeath to my aunt, Mrs. Martha E. Buckingham, and her daughters, Mrs. Anna S. Chandler and Rose A. Buckingham, and to the survivor of them, all of my estate and property of every kind remaining at that time.

      “Fourth. I hereby constitute and appoint Martha E. Buckingham, of Chicago, Illinois, if she be living at my decease, the executrix of this my last will and testament, and if the said Martha E. Buckingham should not be living at my decease, or in case of her death after entering upon the duties of such executrixship, then I constitute and appoint my cousin, Mrs. Anna S. Chandler, of Chicago, Illinois, the executrix of this my last will and testament, and if the said Anna S. Chandler should not be living at my decease, or in case of her death after having succeeded the executrix, Martha E. Buckingham, in the duties of such executrixship, then I do constitute and appoint my cousin, Rose A. Buckingham, of Chicago, Illinois, and as her successor, Prank R. Chandler, of Chicago, Illinois, the executrix or executor of this my last will and testament, and I do hereby direct that all of the estate and property herein bequeathed to my son, Eugene C. Pomeroy, shall be held and managed during his minority by my executrix hereinabove named, and shall be kept safely invested in United States, state or municipal bonds, or in mortgages upon unencumbered real estate worth (exclusion of buildings) at least one-third more than the amount loaned therepn. And the income from my estate to he used and applied to the support and education of my said son until he attains the age of twenty-one years, when the whole estate, both principal and unexpended interest shall be paid over to him. And I hereby empower and authorize my executrix, in case she shall deem it necessary at any time, to use a part of the principal of my estate for the support and education of my said son, and the remainder in such case, together with all accrued and unexpended interest, to be paid over to him at his majority as required. And in case of the death of my said son before attaining his majority, and without issue surviving him, said estate or sucb remainder thereof to be by said executrix paid over to said Martha E. Buckingham, Rose A. Buckingham and Anna S. Chandler, or the survivor of them, Mary E. Van Aulen and P. R. Chandler.

      “In witness whereof, I hereunto set my hand and seal, at Paris, France, this 24th day of February, a. d. 1887, in the' presence of Alchartum Swensen and Bva E. Taylor as witnesses thereof.
    “George P. Pomeroy, [seal.]”
    “I, George P. Pomeroy, being of sound disposing mind and memory, do make, publish, declare and acknowledge this codicil to' my last will and testament, made and published by me in Paris, France, on the twenty-fourth day of February, a. d. 1887, in the presence of Alchartum Swensen and Eva E. Taylor, which will I hereby ratify and confirm in all respects, except as the same shall be hereby changed. It is my wish and intention by my will above mentioned to revoke any and all former wills by me made. It is my will and devise that all of my estate and property of every description, real and personal, shall pass upon my death to the following named persons, in the order and in the manner following:

      “First. To my beloved son, Eugene C. Pomeroy, for his sole use, as provided in my said last will, and in the event of his. death before attaining the age of twenty-one years, and without leaving- issue surviving him, then—

      “Second. To my aunt, Martha E. Buckingham, and her daughters, Mrs. Anna S. Chandler and Hose A. Buckingham, and the survivor or survivors of them, for their sole use in equal parts, and in the event of the death of all the above-mentioned devisees, then—

      “Third. To Mary E. Yan Aulen and Frank K..Chandler and the survivor of them. As regards the investments of money belonging to my estate, it is my desire to so change the former provisions of my will as to allow a wider latitude in such investments, so that fifty (50) per cent, margin of security shall be sufficient to warrant such investments. It is my request that this codicil be attached to my said last will as a part thereof, and that said will and testament shall be probated1 and executed in the city of Ohicago, county of Cook, and State of Illinois. It is my request that my executrix or executor mentioned in my said will be not required to give other than their personal bond.
    “In testimony whereof, I hereunto set my hand and seal this ninth day of July, A. D. 1887.
    “George P. Pomeroy, [seal.]”

      Messrs. Randolph, Condict & Black, for the appellants.
    1 Mr. Mungo J. Currie, for the respondent.
   The opinion of the conr-t was delivered by

Yan Syckel, J.

The only question in this case is whether, under the terms of this will and codicil, -the executor has power to sell the real estate of said testator.

In Sceger’s Executors v. Sceger, 6 C. E. Gr. 90, Chancellor Zabriskie said: “There is no authority or decision, so far as my researches have extended, which holds that in a will which contains no power or directions to sell, such power is created by implication, because necessary or convenient to enable executors to execute the directions of the will.”

In the later case of Haggerty v. Lanterman, 3 Stew. Eq. 37, a less stringent rule was applied, which led to the declaration by Chancellor Runyon “that if a testator, having a right to dispose of his real estate,'directs that to be done by his executor which necessarily implies that the estate is first to be sold, a power is given by this implication to the executor to make such sale and execute the requisite deeds of conveyance.”

This I understand to be in harmony with the rule adopted in other jurisdictions, that if a sale of the real estate is necessary to carry out the purposes of the testator, the power to make the sale will be given by implication, as otherwise the intention of the testator might be defeated. Blount v. Moore, 54 Ala. 360; Van Winkle v. Fowler, 52 Hun 355; Livingston v. Murray, 39 How. Prob. Pr. 102; Mathewson’s Petition, 12 R. I. 145; Going v. Emery, 16 Pick. 107; Matter of Fox, 63 Barb. 157; Skinner v. Wood, 76 N. C. 109.

But the right to exercise such power of sale by implication has been rigidly restricted to those instances in which it is necessary in order to carry out the purposes of the testator’s will.

Power of sale will not be implied merely because it will be beneficial to the estate. Roe v. Vingut, 117 N. Y. 204.

Power of sale will not be implied merely from direction to pay debts. Hill v. Den, 54 Cal. 7; Huse v. Den, 85 Cal. 390; Owen v. Ellis, 64 Mo. 77.

But such power will be implied from direction to pay debts with the proceeds of land. Meakings v. Cromwell, 2 Sandf. 512; Skinner v. Wood, 76 N. C. 109.

In Smalley v. Smalley, 9 Dick. Ch. Rep. 591, where the testamentary provision was as follows:

“X give, devise and bequeath all of my property, both real and personal, to my six children, as follows, that is to say, after the settlement and payment of all my just debts, then the residue of my estate, both real and personal, to be gathered into one general fund, and divided into six equal parts,”

Vice-Chancellor Stevens held that an implied power of sale was not given by this clause, because the testator used language technically appropriate to carry his real estate in specie to his children. It is not necessary to adopt so strict a rule in the case before us.

The statute of 22 & 23 Vict. c. 35 provides that a charge of debts on lands gives power of sale.

Prior to the passage of this statute there had been much discussion in the English courts on this subject, and to some extent the rule was unsettled. Doe v. Hughes, 6 Welsby, H. & G. 223; Forbes v. Peacock, 11 Mees. & W. 637; Wrigley v. Sykes, 21 Beav. 337; Colyer v. Finch, 5 H. L. Cas. 905.

In all English cases in which the power of sale was found to exist the judgment of the court was predicated upon the assumption that it was the duty of the executor to liquidate the debt charged on the lands.

The consideration of the question submitted by this appeal must be approached upon the assumption that the rule of interpretation is that the implication must be clear from the terms of the entire will, and it must be found that some duty has been imposed by the testator upon the executor which necessarily carries with it a power of sale in order to enable him to perform the duty. This rule is supported by the great weight of authority. Lindley v. O’Reilly, 21 Vr. 649.

The second clause of the will uses language appropriate to pass real and personal estate to Eugene C. Pomeroy, and providing that it shall vest in him at testator’s death.

The direction in that .clause “that it shall-not be paid over or delivered to Eugene until he attains his majority” is not appropriate to -and does not apply to the real estate.

The words immediately following—-“and until that time to be held and managed by my executors”—expresses the intention of the testator with regard to the real estate.

The personal estate was to be invested by the executors and paid over.to Eugene at his majority. The real estate was to be managed by the executors during his minority, the title thereto vesting in him at testator’s death.

In the third clause, in case of the death of Eugene before the age of twenty-one without issue surviving him, he gives, devises and bequeaths his estate to others named therein, indicating that at the happening of the contingency provided for, his estate would consist of both realty and personalty, and in that character pass to the persons therein named.

The language chiefly relied upon to establish the implied power is found in the fourth clause, in the following language:

“I do hereby direct that all of the estate and property herein bequeathed to my son, Eugene, shall be held and managed during his minority by my executrix and shall be kept safely invested in United States, state or municipal bonds, or in mortgages upon unencumbered real estate. And the income from my estate to be used and applied to the support and education of my said son until he attains the age of twenty-one years, when the whole estate, both principal and interest, shall be paid over to him.”

In construing wills it must be presumed that words are used in their appropriate technical sense, especially where the testator in previous clauses has used the words “give, devise' and bequeath” in disposing of both his real and personal estate. Otherwise there will be no uniform rule of interpretation, and no stable signification given to language which has a definite meaning in the law.

Charging the testator with a knowledge of the distinction between a bequest and a devise, the direction to invest all the property bequeathed to his son must be restricted to the personal estate which passed as a bequest.

The income of the estate, including both the interest received on the investment of the proceeds of the personal estate and the rents received by the executor from the real estate, which he was to manage during the minority of Eugene, was to be applied to his support and education.

There is no provision in the will which discloses a clear intention on the part of the testator to confer a power of sale upon the executor. The utmost that can be claimed is that it is the subject of doubt,, a doubt which is not removed, but rather increased by the provisions contained in the codicil..

The testator declares in the codicil that it is his will and devise that all of his estate and property of every description, real and personal, shall pass, upon his death, in the following order:

First. To his son, Eugene.

Second. Upon the death of Eugene before twenty-one, without issue surviving, to Mrs. Buckingham and others named.

Third. Upon the death of all the above-mentioned “devisees,” to Mary E. Van Aulen and Frank R. Chandler, and the survivor of them.

The last clause of the will, which is ratified by the codicil, gives to the same persons the personal estate in the same order.

The usé of the words “devise” and “devisees” in the codicil indicates that it was in the mind of the testator that his real estate would continue to be real estate when his son arrived at the age of twenty-one years, if he lived so long.

The conclusion, therefore, must be that the power to sell real estate is not conferred upon the executor by the will of George P. Pomeroy, and the decree of the court of chancery should be reversed.

[Record ordered retained pending motion for rehearing.]