author: Green, V. C.

text:
    Thomas Starkey et al. v. Elizabeth Fox et al.
    To defeat an open, notorious, exclusive and unquestioned possession of lands for fifty years, on the ground that the party in possession held as the trustee of an express trust, it must clearly appear that the possession was taken and held while the trust was subsisting. When the court is asked to presume such conditions, they must not only be deducible from some of the facts, but must be equally consistent with others. Such presumption will not be made where a presumption is also raised, consistent with all known facts, that the trust has been extinguished.
    On bill, answer, replication and proofs in open court.
    This bill is to establish an alleged express trust in certain lands in Morris county, and for relief.
    June 14th, 1838, one Thomas Holden was seized in fee of three tracts of land described in the bill, and situate about a mile and a half from.the court-house in Morristown, Morris county.
    Thomas Holden executed and delivered to one Elizabeth Fox of Newark a mortgage upon these tracts of land, dated June 14th, 1838, for $1,200, due in one year, with interest, according to the condition of the bond, which mortgage was recorded in Book R of Mortgages of Morris county, page 123.
    Elizabeth Fox, the mortgagee, died April, 1839, in Essex county, intestate, leaving her surviving a son, Thomas Fox, and two daughters, Martha, then the wife of Benjamin Starkey of Morris county, and Zilpah, then the wife of Elias Stansberry of Essex county.
    Letters of administration on the estate of Elizabeth Fox were granted by the surrogate of Essex county, May 4th, 1839, to her son, Thomas Fox, who took upon himself the administration of the estate. He filed an inventory of the personal estate, in which was included the amount of principal and interest due on said mortgage of Thomas Holden, appraised at $1,263.80.
    Thomas Fox, as administrator, January 20th, 1840, filed a bill in this court to foreclose the said mortgage. Decree of foreclosure and sale was entered April 9th, 1840, fixing the amount due on said mortgage at $1,331.20. Execution was issued to the sheriff of Morris county, under which the said sheriff, on July 18th, 1840, sold the mortgaged premises to Thomas Fox, administrator of Elizabeth Fox, for the sum of $920. By deed dated July 27th, 1840, the said sheriff conveyed the several tracts of land unto “ Thomas Fox, administrator as aforesaid, and to his assigns,” the word “ heirs ” being erased. This deed was recorded in Morris county, July 27th, 1840.
    Thomas Fox was cited to account as administrator on May 4th, 1841, to the orphans court of Essex county. The account filed by him was verified July 12th, 1841. In the account he charges himself with the amount of the inventory, $2,075.99, and some other amounts followed by this item :
    “ To real estate in Morris county, mortgaged by Thomas Holden and wife to the intestate. The accountant foreclosed said mortgage, and as administrator took a sheriff’s deed for the premises, which deed he holds in trust for the estate. The accountant has not obtained possession of said premises, an action of ejectment for that purpose being now depending in the Morris circuit court, value of said premises uncertain.”
    And he prays allowance inter alia, as follows:
    “ For the amount of the bond and mortgage of Thomas Holden, wherewith he is charged in the inventory, the said Thomas Holden being insolvent and no part of the said sum having been received by the accountant (excepting by a sheriff’s deed to accountant as administrator as before stated), §1,263.50.”
    Exceptions to the account were filed by Benjamin Starkey, the husband of Martha Fox, describing himself as “ being interested in the settlement of the account,” and it was referred to Jacob K. Mead, Joseph Hewson and Theodore Frelinghuysen, auditors, to examine and restate.
    The auditors made their report to the April Term, 1842. By the restatement the administrator was charged $2,305.49, and allowed $2,454.31. Balance reported due administrator, $148.82, with the following statement:

      “ The said administrator holds in trust for the estate certain real estate in Morris county, mortgaged by Thomas Holden and wife to the intestate, which mortgage this accountant foreclosed as administrator and took a sheriff’s deed for the premises, which deed he holds in trust for the estate. This accountant has not obtained possession of said premises, an action for that purpose being now pending in the Morris county circuit court, value of said premises uncertain, March 19th, 1842.”
    This paper is endorsed “ Thomas Fox adm. of Elizabeth Fox dec’d. His account as restated by auditor.” Signed by Stephen I). Hay, Samuel B. Twiller and J. S. Crane, who were judges of the orphans court of Essex county at the time. It does not appear that any formal decree was entered in the minutes.
    Thomas Fox afterwards obtained possession of the farm, when it does not definitely appear, but Mi’. Pearson and Mr. Tuttle say it was about the year 1840, but from the auditors’ report it must have been after March, 1842. Thomas Fox, soon after taking possession, tore down the old barn and house upon the premises, and built a new barn and a new house, and lived in the latter until his death in 1891. During the whole of this time he worked the farm, clearing, improving and tilling it, and paid the taxes, taking to himself the proceeds without account-. ing or being called to account by Benjamin Starkey, husband of Martha Fox, who lived for most of the time in Morris county near the farm, or by Elias Stansberry or Nehemiah Baldwin, the husbands of Zilpah Fox, who resided in the county of Essex, or by anyone until this suit.
    Thomas Fox died in 1891, leaving him surviving his daughters, Elizabeth Fox, Caroline, wife of Jeremiah Stalter; Martha, wife of George Harry; Harriet, wife of John N. Conklin, and a grandchild, Elizabeth May Moody, infant of a deceased daughter, Mary, wife of Matthew Moody. Thomas Fox died testate, appointing by his will his sons-in-law, Jeremiah Stalter, George Harry, Matthew Moody and John N. Conklin, his executors, and giving, devising and bequeathing the residue and remainder of his estate, real and personal, to his five daughters, their heirs, executors, administrators and assigns, in equal shares. The executors proved his will, and have, under a clause of the will, executed a deed to Elizabeth Eox, for three and eighty-seven one-hundredths acres, and one to Mary E. Ogden, for twenty-two and eighty-four one-hundredths acres. The heirs and executors of Thomas Eox and Mary E. Ogden, and the heirs-at-law of Thomas Holden, are the defendants in this suit, the latter on the ground that the sheriff's deed, not containing words of inheritance, conveyed a life estate only, and they, on the record, are entitled to the reversion.
    Martha Eox, daughter of Elizabeth Fox, the mortgagee, married, about the year 1820, Benjamin Starkey. She died in 1877, leaving her surviving her husband and five children, viz., Thomas Starkey, Joseph Starkey, Sarah Ann, wife of John M. Johnson; Alice, wife of Isaac Van Hess, and Elizabeth, wife of John Flurry, who is since deceased without issue. Benjamin Starkey, the husband, who was the exceptant to the account of Thomas Fox, administrator, died testate. His will, dated July 12th, 1883, was proved May 2d, 1889, by the executors therein named — Joseph Starkey and John- M. Johnson. After directing his debts to be paid, he gives all the rest, residue and remainder-of his estate to his five children.
    Zilpah Fox, daughter of Elizabeth Fox, the mortgagee, married, somewhere about the year 1831-32, Elias Stansberry. He died January 1st, 1844, leaving him surviving his widow, Zilpah, and two daughters, Elizabeth, born in 1833, who is now the wife of Abraham Cadmus, and Mary Jane, born in 1841, who is now wife of George Cadmus. His widow afterwards married Hehemiah Baldwin, who died in 1850, without issue, and she died August 6th, 1888, having appointed her daughters her executors and legatees.
    These heirs and representatives of Martha Fox and Zilpah Fox are the complainants.
    The bill prays that the sheriff's deed to Thomas Fox, administrator, may be reformed by inserting proper words of inheritance; that Thomas Fox may be decreed to have purchased and held the estate in said lands in trust for himself and his sisters; that, at his death, said estate descended to his heirs-at-law, subject to said trust; that the conveyances by his executors to Elizabeth Eox and Mary E. Ogden may be declared invalid and that partition be made, or, if that is not practicable, then for a sale and division of the proceeds, and for an account of rents, issues and profits, while occupied by Thomas Fox and his heirs or executors, and two-thirds thereof, if not paid, charged on the third to be set off to the heirs of Thomas Eox or deducted from the proceeds of such third.
    All parties having joined in a deed to Mary E. Ogden, and the purchase-price of her lot, $7,000, having been paid into court to the credit of the cause, the suit was discontinued as to said Mary E. Ogden.
    The joint and several answers of the defendants under oath, the bill not having waived answer under oath, sets up several defences to the suit, inter alia, that the accounting in the Essex county orphans court was made in obedience to a citation issued at the instance of Benjamin Starkey, who also filed exceptions to the account, which was referred to auditors, who restated the same and reported it to the orphans court, by which it appeared, after making all proper charges against the said administrator and allowing all proper allowances (including said sum of $1,263.80, the amount of the bond and mortgage), there was due him, as administrator, $148.82 without commissions, besides other items and sums not carried out in said restated account, which defendants say would amount to at least $100 more, and which restated account was duly approved and passed by the said orphans court, and deny the charge of the bill that Thomas Fox did not in any way account to the estate for the amount of the bond and mortgage or the amount of the purchase-money, but
    “ insist that all such accounting as was necessary or required was made, and submit that while it may be difficult, if not impossible (outside of said accounting in the Essex county orphans court), after the lapse of fifty years, to show just when or how said accounting actually did take place; that after such lapse of time during which to the knowledge or belief of these defendants no claim or demand for an accounting or payment has been made (except said citation), it is a legal presumption, and this court will presume, that such accounting was made, and that any and all alleged claims of complainants or heirs-at-law or next of kin of their said parents or either of them against said Thomas Fox, as such administrator, were long since paid or adjusted and extinguished.”
    They admit that Thomas Fox, from about the time of the alleged delivery to him of the sheriff’s deed to the day of his death, was in the actual and exclusive possession of the land, and took and appropriated to himself the rents, issues and profits thereof, and never accounted to the heirs of Elizabeth Fox for any part thereof; that from 1841 to his death in 1891, he was in peaceable, open, notorious, exclusive and unquestioned occupation and possession, which was always acquiesced in and never to their knowledge or belief by any person disputed or called in question, and insist
    “ that the said Thomas Fox, by such adverse and exclusive possession, acquired the absolute title in fee to said premises against all persons whomsoever, and that by virtue of the statutes of limitations his title to said lands cannot be in anywise called in question.”
    That under the law, as it was in 1841-42, the husbands of Martha Fox and Zilpah Fox were entitled to the proceeds, if any, of said bond and mortgage, and that said indebtedness of said estate to said Thomas Fox, as such administrator, having never been paid or discharged, and said Thomas Fox having held such lands adversely for more than twenty years, his title thereto, by virtue of the statute in such case made and provided, became perfect and indefeasible.

      Mr. Theodore Little, for the complainants.

      Mr. John R. Emery, for the defendants.
   Green, V. C.

(After stating the facts as above).

It seems to be conceded that, by the law of the State of New Jersey, as it was at the time of the accounting of Thomas Fox, as administrator of Elizabeth Fox, in the orphans court of Essex county, in 1842, the husbands of Martha Starkey and Zilpah Stansberry, the two sisters of Thomas Fox, and with him the next of kin of Elizabeth Fox, deceased, viz., Benjamin Starkey and Elias Stansberry, were respectively entitled to the shares of their wives in the settlement of the estate, namely, each one-third of the amount to be distributed.

By the accounting, which was not a final one, there was found to be due to the administrator from the estate $148.82, which amount would be further increased by about one hundred dollars for sheriff’s fees and other matters not brought into that account. This balance, as due the administrator, was arrived at without taking into account the Holden bond and mortgage, which was inventoried at $1,263.50, but which had realized on the foreclosure sale only the sum of $920.

The only evidence as to the value of the property bought in by Thomas Fox, the administrator, at the sheriff’s sale, is the amount it brought at that sale, and that, in the absence of other testimony, must be taken as the market value.

If a settlement had been made at that time, viz., in 1842, on that basis, Thomas Fox would have been entitled to deduct $248.82, the amount due him from $920, the value of the farm, leaving $671.18 to be equally divided between himself and the husbands of his two sisters, namely, $223.72f each to Starkey and Stansberry respectively, Thomas Fox’s own interest being $472.54|.

. The claim of the complainants rests on the assumption that Thomas Fox never settled with the persons named who were entitled to those two amounts of $223.72f- each.

The possession of Thomas Fox of the premises in question for nearly half a century was open, notorious, exclusive and unquestioned. There was no possible act of assertive ownership which he did not exercise. He tore down not only the outbuildings, but the dwelling-house, and at his own expense erected a new bani and a new house. He fenced, improved and tilled the land, took the product, paid the taxes and never recognized anyone as having an interest with him in the estate, continued to live in the house in undisputed possession until the day of his death, in 1891, and, dying, disposed of it by will among his children.

Ordinarily, in such a case, the statute of limitations would be an effective defence unless the claimant rested under one of the specified exceptions. _ The period of twenty years, within which a right of entry could be exercised or any possessory action maintained, had more than twice elapsed. Fox’s title by possession was good against the world at law, for no one could disturb him — could invoke the, exceptions to the statute. There was nothing to impeach his title or imperil his possession but the interposition of a rule of equity that lapse of time does not affect an express trust. It is therefore insisted that the complainants’ right of recovery rests alone on the contention that the possession of Thomas Fox cannot avail the defendants, his devisees, because he was in possession as trustee of an express trust. There can be no dispute that the statute of limitations cannot be successfully invoked in equity by one who occupies such position at a time when there is a continuing and subsisting trust, acknowledged or acted on by the parties, the reason being that, as his possession is that of the cestui que trust, it cannot be said to be adverse. Hovenden v. Lord Annersley, 2 Sch. & L. 633.

The statute of limitations is a statute of repose. The protection it affords is not to be displaced unless the existing conditions clearly show that it should not be maintained. After a lapse of fifty years, when everyone who could explain the surrounding circumstances has passed away, the barrier which it interposes is not to be easily thrust aside, and family settlements and titles disturbed.

The claim here is one founded on a technical rule of equity, applicable to express, but not to implied, trusts. The rule is founded on good and sufficient reasons, which are unassailable, but it should not be applied in a case like the present unless its-applicability is without question. It is not to be invoked if based on presumption unless such presumption is a conclusive one from all the circumstances. The possession of nearly half a century, exclusive and to all appearances adverse, is not to be disregarded on the ground that Fox was in possession under an express trust unless it satisfactorily appears from the proofs that he took possession as such trustee, and that the trust continued to subsist during his possession and is impressed on the estate in the hands of his devisees.

The recital in the account filed by Thomas Fox, that he then held the deed in trust for the estate, is a sufficient declaration of an express trust. The statement by the auditors, to whom the account was referred on exceptions filed, cannot, of course, have any such effect. It was not within the province of the orphans court, in passing the account, to declare trusts. But the affidavit annexed to the original account, containing the above recital, is signed by Thomas Fox. In Jamison v. Miller, 12 C. E. Gr. 586, it was held that the signing by the defendant of an answer containing a declaration or admission of a trust, was a manifestation within the statute of frauds, and on the same reasoning, this statement, signed by Thomas Fox, must be considered as a sufficient declaration of trust, and, taken in connection with the deed itself, proof of the existence of an express trust.

The statement, however, was, that he “held the deed in trust.” The account in which it is made is dated July 12th, 1841. Up to that time Fox had not got possession of the property, although the deed is dated July 24th, 1840. Nor was he yet in possession, according to its recitals, at the time of the auditor’s report, March 19 th, 1842.

It further appears, by the account filed, that an action of ejectment, brought by Thomas Fox against someone to recover possession of this property, was pending in the Morris circuit when the account was filed in 1841 and passed in 1842.

There is, however, no evidence who the defendant in that suit was, or on what title it was prosecuted, or on what ground defended; nor when or how it was ultimately decided; nor whether Thomas Fox obtained possession by means of a recovery therein.

To make the possession of Thomas Fox the possession of his cestuis que trust, and for that reason not adverse, it should have been made to appear, by the complainants, on whom is the burden of proof, that his possession was taken or continued as trustee, and this should have been proven, and not left, as it is, to inference. It is no answer to say that, at this late day,'it is well-nigh impossible to prove such conditions. This trust was not an active, continuing trust in the sense that the trust fund, or corpus of the trust, was to remain for a length of time subject to the management of the trustee before payment or division. It was ripe as soon as it was declared. It could be executed as soon as it was created. If Fox got possession of the property under the deed which he declared he held in trust, or while the trust was still subsisting, his brothers-in-law could have at once required him to execute his trust, either by payment to them of their portions, or by sale of the property and division of the proceeds, or by partition of the land. It was as much in the power of Benjamin Starkey and Elias Stansberry to have instituted this suit in 1842 as it was for these complainants to do so in 1891. Fifty years ago, when every event was of reoent happening, every remedy was open to those under whom complainants claim. Difficulty or impossibility of obtaining proof of circumstances occurring long ago is no excuse for those whose ancestors have neglected pursuing remedies open to them in equity, leaving to their descendants a possible right of action, to be enforced after “lapse of time has carried with it the memory and life of witnesses and the muniments of evidence and other means of proof.”

I admit that the facts present a strong probability that Thomas Fox did obtain possession of the property by virtue of the deed which he had declared he held in trust, but is it the convincing presumption on which the protection of the statute is to be brushed aside ? Is it not only deducible from some facts, but is it entirely consistent with other known conditions? We are asked to presume that Thomas Fox was in possession as trustee. This is to be deduced from the deed, the declaration in the account, the action of ejectment and the fact of possession. This at best would be only a presumption of fact, and can be overcome or superseded by other presumptions if they are fairly to be drawn from the facts of the case. The inconclusiveness of the deduction is that while it is consistent with the facts named, it is not so with other facts which raise another presumption, viz., that the trust was extinguished by the settlement of the amount due the cestuis que trust, either before or after' Fox got possession of the land.

If Thomas Fox paid each of his brothers-in-law the $223.72$ due, prior to taking possession, the trust was extinguished, and he never was in possession as trustee, and his possession was adverse and is a complete defence.

But even if the proof is satisfactory that possession and the relationship of trustee and cestuis que trust was at one time coincident, there may be certain conditions which will prevent the application of the rule that time does not run against an express trust, for when the relation is no longer admitted to exist, qr gross laches in enforcing a known right or long acquiescence in the alleged breach of trust is shown, when lapse of time has obscured the nature and character of the trust or the acts of the parties, or other circumstances give rise to presumption unfavorable to its continuance, in all such cases a court of equity will, even in a case of express trust, refuse relief upon the ground of lapse of time and its inability to do complete justice. 2 Story Eq. Jur. § 1520 &c.; Bright v. Legerton, 2 De G., F. & J. 606; Dean v. Dean, 1 Stock. 425; Kane v. Bloodgood, 7 Johns. Ch. 90; McDonnel v. White, 11 H. L. Cas. 570; Prevost v. Gratz, 6 Wheat. 481; Philippi v. Philippe, 115 U. S. 151; Pattison v. Hawkesworth, 10 Beav. 375; Baker v. Whiting, 3 Sumn. 486; S. C., 2 Fed. Cas. 787; Browne v. Cross, 14 Beav. 105; Harcourt v. White, 28 Beav. 303.

It will be noted that this doctrine is not an exception to the rule, but proceeds on an inference from facts other than, but in connection with, the lapse of time, that the trust has been executed or in some way extinguished, as is said by the master of the rolls, in Pickering v. Stamford, 2 Ves. Jr. 581 (at p. 583): “Every presumption that can fairly be made shall be made against a stale demand. It may arise from the acts of the parties, or the very forbearance to make the demand affords a presumption either that the claimant is conscious it was satisfied or intended to relinquish it.” Harcourt v. White, supra; Dean v. Dean, supra.

Do, then, the facts raise a presumption that the trust declared was either extinguished or had ceased to be recognized by the parties ? Benjamin Starkey, to whom one portion of the estate was payable, was an active antagonist of Thomas Fox. He interposed exceptions to the account filed by the administrator in the orphans court and contested its allowance. He resided in the immediate neighborhood of the property in question, and must have known of the acts of Thomas Fox upon and with it. The other beneficiary, Elias Stansberry, lived in the adjoining county of Essex. His pecuniary circumstances are shown to have been such that it is not probable he would relinquish a debt due him without an effort to secure it. It is inconceivable that either of these men would have permitted Fox to take and continue in possession of these lands, tear down the buildings and fences and treat the 'property as his own exclusively, or have acquiesced in his assumed sole proprietorship, without having first settled with them the amount due to each on the accounting.

Nor is it likely that Benjamin Starkey, who did not die until 1889, would have lived for over forty-five years in the immediate vicinity without having taken any proceedings, so far as appears by the evidence, to enforce the payment of the amount found by such accounting to be due him. Nor is it likely that Fox would have expended his own money in the erection of a house and barn on the property, if the trust had not been extinguished by a settlement with those who were hostile to him.

This presumption of settlement is not based on the lapse of time solely, but on the otherwise inconsistent and incomprehensible conduct of the parties. It is an inference with which every fact or known condition is in harmony, and must overcome the other, which is at variance with some admitted facts.' ■

The only excuse offered for the great delay in bringing this suit is the poverty of the Stansberrys and Baldwins. It is not urged as to the Starkeys. It is to be noted that there is in the case no misrepresentation, concealment or ignorance of the facts, and in such cases Vice-Chancellor Wigram, in Roberts v. Tun- stall, 4 Hare 257, expresses the opinion that such excuse is not valid. But extreme poverty is not here proved. The expense ■could have been but slight, and as Chancellor Williamson, in Dean v. Dean, supra, says, while it may have prevented the prosecution of a suit, could not have made it impossible to make a demand or protest.”

In my opinion, the complainants fail to establish that Thomas Fox took possession as trustee, or to rebut the presumption that the trust was extinguished, or'to excuse the delay in prosecuting the claim, and, without examining the other points raised, I advise that the bill be dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Margaret Henry v. Imperial Council of Order of United Friends.
    1. The widow and beneficiary of a member of a beneficial order, on the payment to her of §500, released the order from the payment of her claim of §3,000 upon the false representation of the officers of such order that deceased was not in good standing at the time of his death and that she had no claim whatever against it. — Held, that on proof of such a state of facts, a court of equity will set the release aside.
    2. The fact that the widow had the benefit of the advice of competent counsel does not deprive her of relief, if the counsel was also misinformed by such officers.
    On bill, answer, replication and proofs in open court.

      Mr. William D. Daly and Mr. William M. Dougherty,' for the complainant.

      Mr. J. Frank Fort, for the defendants.
   Green, V. C.

The Order of United Friends is a beneficial society, having a parent organization called the “imperial council,” with jurisdiction over grand councils in ten states, including New York and New Jersey, which grand councils have power to establish subordinate councils in their respective states.

The imperial council is incorporated under the laws of the State of New York, under an act entitled “An act for the incorporation of societies and clubs for certain lawful purposes,” passed May 12th, 1875, and also “An act concerning charitable, benevolent and beneficial associations and societies as a corporation,” passed May 12th, 1881.

Among the objects of the association, as appears by its certificate, is one to promote benevolence and charity, by establishing a relief fund from which a member of the association, who has complied with all the laws, rules and regulations, or a person or persons by such member lawfully designated, or the legal heir or heirs of such member, may receive a benefit, in a sum not exceeding $3,000, which shall be paid * * * upon satisfactory evidence of the death of a member, and when all the conditions regulating such payment shall have been complied with.

Provision is made by the laws of the order for the payment, * * * to a designated beneficiary, or the heirs of a member, of the amount of insurance guaranteed to members of his class, on the death of any such member. The amount of the benefits and insurance to be paid is provided for by a relief fund which is under the exclusive control and management of the imperial council and its officers. The order and the different councils are governed by the provisions of the articles of incorporation, the constitution and general laws promulgated by the imperial council.

The relief fund is created and maintained by assessments made upon each member of the order. Calls for these assessments are made by the imperial recorder and forwarded to the subordinate councils; and it is the duty of the financier of the subordinate council to receive all moneys for the relief fund, and keep an account of the same in separate books provided for that purpose. The law provides that every person, on becoming a, beneficiary member of the order, shall pay the amount prescribed in a table of assessments for the relief fund, and the same amount-on each assessment called thereafter while he or she remains a. member of the order. The financier is required to keep the date when such payments are made, and credit the member with the same. From this fund $1,000 is to be paid on the death of a member of the first class, $2,000 on that of a member of the second class, and $3,000 on that of a member of the third class.

The imperial recorder is required on the first day of each month, if there is less than $3,000 in the relief fund, to pay death and disability losses, to notify each subordinate council to forward to him the amount of one assessment within fifteen days, and when more than one assessment is necessary in one-month, the other is to be dated the 15th and to be forwarded within thirty days.

He is also required, at the time of issuing such notice,-to make such assessments as may be necessary to provide for the payment of all losses of the relief fund, which the imperial council may be liable to pay at either date, and forward to each recorder of subordinate councils a sufficient number of notices thereof, to-notify each beneficiary member of his council. Such subordinate council recorder is required, within eight days, to serve the-notice upon each beneficiary member of his council, and each beneficiary member is required to pay the amount due on the notice, at the council-room of his council, at a regular meeting thereof, to the financier of his said council, or to the financier personally at a place designated, and

“ any member who fails or neglects to pay such assessments within thirty days from the date of said notice, shall stand suspended from the order and forfeit all his rights, benefits and interests of, in and to the relief fund.”

Mr. Shedd, the imperial recorder, says that the way assessments are called in, that having ascertained the amount of money in the relief fund, they estimate the probable number of deaths in the ensuing month on the basis of the deaths which had occurred in the previous month, and regulate the number of assessments in accordance therewith.

The financier of a subordinate council was required to report to the recorder thereof, at the next meeting of his council, the names of such persons as have become suspended, with the date of such suspension, which the recorder is required to enter on the minutes of the council.

When a member was suspended for non-payment of an assess-' ment, he could by the mere payment, within one month after his suspension, of all dues and assessments, reinstate himself, without ballot or medical examination. If, however, he failed to so reinstate himself, it was necessary for him to apply to the council for reinstatement, and, as a condition thereof, pay all dues and assessments past due as well as those which had been called after his suspension, and furnish the council with a physician’s certificate as specified, and he could then be reinstated by a ballot taken, if a majority should be found in favor thereof.

Thomas Henry was a member of Erie Council, Ho. 47, of Jersey City. He, as a member of the third class, obtained relief certificate Ho. 1,998, dated March 4th, 1885, for $3,000, to be paid to his wife, Maggie Henry, on his death. By the relief fund table each assessment to be paid by him, as a member of his class, was $1.05.

He died February 19th, 1890, after a short illness.

On the day of his death, his widow, the complainant, was waited upon by some of the officers of the Erie council, who requested her to change the time of her husband’s funeral from Saturday, as she had determined, to Sunday, in order that the council, of which,” they said, he was an honored member,” might more conveniently attend.

She did, in accordance with such request, alter her arrangements, and Thomas Henry was buried on Sunday. The members of Erie council attended the funeral in a body, the council paid for the advertisement and some other incidentals attending the funeral, which was conducted under the supervision of Mr, Davis and Mr. Sweeney, the officers of the council.

By a report made by the officers of Erie council to the imperial recorder, under date of February 24th, 1890, Mr. Henry was returned as in good standing, having been reinstated February 11th, 1890, on a suspension, and the return included the amount which Mrs. Henry had paid to the financier the day before Henry’s death. The report of his reinstatement was afterwards erased and the paper returned by the imperial recorder to the Erie council, to deduct the amounts credited to Mr. Henry.

Trouble arose almost immediately after Mr. Henry’s funeral, as to whether he was, at the time of his death, a member of Erie council in good standing or suspended for the non-payment of assessments.

After much controversy and negotiation, his widow finally settled with the defendant for $500, and she now seeks to set aside a release, which she then executed, of all claims against it by reason of the relief fund certificate, and to recover the balance of $2,500.

The defendant insists that Thomas Henry was, at the time of his death, suspended for the non-payment of assessments. The action of the officers and members of Erie council, with reference to his death and funeral services, eliminate every other ground for claiming he was not a member in good standing. It was admitted and proved that assessments had been regularly called, of which notice had been given to the decedent as follows: No. 114, payable December 25th, 1889; No. 115, December 31st, 1889; No. 116, January 15th, 1890; No. 117, January 30th, 1890; No. 118 and disability 1, February 15th, 1890. The case will eventually be found to turn on whether assessment No. 116, due January 15th, was paid that day or within thirty days thereafter.

Among Mr. Henry’s papers there were found the relief fund certificate named and several receipts, including one written on a blank form of receipt, dated “Hall of Erie Council, No. 47, December 30th, 1889,” as having received of T. Henry $5.20 for assessments' Nos. 110, 111, 112, 113 and 114, and signed by “C. W. Davis, financier.” Also, another receipt, similar in form, signed by “C. W. Davis, financier,” dated January 15th, 1890, for $1.05, for assessment No. 115.

Mrs. Henry testified that, on a meeting night in the middle of January, 1890, which is shown to have been January 15th, she paid $3 to the son of Davis, the financier, on account of two assessments, one then past due and one due that night. This amount of $3 Mr. Davis admits in his, testimony he received from his son.

On February 18th Mrs. Henry paid to Davis, the financier, personally, $5.25, for which he gave her a receipt for $4.20. By the first receipt, above referred to, all assessments up to and including No. 114'were paid December 30th. This would leave, on January 15th, when Mrs. Henry paid the $3, No. 115, payable December 31st, due and unpaid, and No. 116, due January 15th, the amount due on the two being only $2.10.

No. 117 was payable on January 30th, No. 118 and disability 1 on February 15th. Not having paid them when they fell due, Henry became suspended on each, but could reinstate himself by the payment within thirty days. February 18th was within such thirty days, and on that day Mrs. Henry paid Mr. Davis, personally, $5.25, the amount of five assessments.

Besides the receipts named, there is another, dated January 15th, 1890, for $1.05, which amount Mr. Davis says Mr. Henry personally paid to him.

These receipts, if reliable, with Mrs. Henry’s testimony, establish that her husband, at the time of his death, on February 19th, 1890, was not in arrears for assessments, and consequently that she was entitled to receive $3,000, the whole amount of the l’elief certificate issued to him; for if Mr. Henry, or his wife for him, paid the amount of the assessments to the financier of Eric council within the thirty days, in which he could, by payment of assessments due, reinstate himself, he was then a member in good standing, as the financier of the subordinate council is the agent of the imperial council, to receive the moneys due upon the assessments, and payment to him is all that is required. Any failure on his part to properly perform his duty and pay over the money and report its receipt, cannot affect the beneficiary of the fund. Schunck v. G. W. & W. Fond, 44 Wis. 369.

Independent of the question of settlement and release, this testimony throws the burden of proof upon the defendant to show that these receipts are not correct. It seeks to meet this position by the returns made by Erie council to the imperial council and by the testimony of Mr. Davis, the financier. A book was produced and put in evidence, without objection, which consisted, originally, of a number of blanks bound up in pamphlet form, called “the relief fund statement.” The blanks composing this book were furnished by the imperial recorder, for reports to be made by the different councils to him of payments made on account of the several assessments, with a return of membership, showing the increase and decrease by suspension, and reinstatements, deaths and admissions. The blanks, being two for each assessment, are bound up consecutively, and the officers of the subordinate council are required to fill out each blank under a particular date, showing the number of members of their council in each class, their ages, the class-rates, the total amounts received upon that particular assessment, with a report of payments made on back assessments, and to remit to the imperial treasurer the amount so collected, less five per cent, retained for the reserve fund of the subordinate council.

This report is required to be signed by the chief councilor and recorder of the subordinate council, and the statement of amount remitted by the treasurer thereof.

On the back, a report of the increase and decrease in membership of the council since the last preceding assessment, is required to be made. One of these reports, so made out and signed, is then torn out of the book and sent to the imperial recorder, with the money. The other is left in the book, making a record.

By this record, it appears that Thomas Henry was reinstated on assessment No. 109, by its payment, November 2d. He was never reported as suspended on assessments Nos. 110, 111 or 112, but he does appear to have been suspended December 10th, 1889, for non-payment of assessment No. 113. On the return of payments on account of assessment Ho. 114, due December 25th, which return is dated December 28th, Thomas Henry is not returned as delinquent. On the return for assessment Ho. 115, originally dated January 8th,-1890, and altered to December 30th, Henry is reported as reinstated on Ho. 113 and suspended on Ho. 114. He is not reported as delinquent on Ho. 115, and was never so reported on that assessment.

By report dated January 14th, 1890, he is reported as reinstated January 15th, but it is not stated upon what suspension he is reinstated. There are pencil marks “115” and “114” upon this paper, on the heading of the report of increase of membership, but not in connection with the name of T. Henry. He is reported on this report as suspended on January 15th, on assessment Ho. 116. This report, which is in Mr. Davis’ handwriting and is marked “Exhibit C 19,” has been torn out of the book, but I do not recall whether it was so done during the trial or not.

The duplicate thereof, dated January 14th, sent to the imperial recorder, was also produced, and was marked “ Exhibit C 22.”

This report, while it is dated January 14th, purports to give the receipts on account of assessment Ho. 116, which was not due until the next day. It also reports a member as reinstated and others as suspended, as of January 15th, and among them Thomas Henry as suspended on Ho. 116. This reported suspension is the crucial point in the case, for, if Ho. 116 was paid in time, there is no ground for claiming Henry was not in good standing. In this connection it must be remembered that this report is dated January 14th, and that it was on the evening of January 15th, when Ho. 116 was due, that Mrs. Henry paid the $3 to Davis’ son.

What probative force have these records as against the complainant?

They are not minutes of the proceedings of the council of which Henry was a member. They are only reports made by the chief councilor, the recorder and the treasurer, of course, from data furnished to them by the financier, to the imperial •recorder of the receipts by the financier, who, it has been shown, is the agent of the imperial council to receive moneys due upon the assessments. There was no privity existing between Thomas Henry or Mrs. Henry and these officers of the subordinate council with reference to his standing as a beneficiary member of the order, holding a relief certificate for her benefit, and their report to the imperial council is no evidence against Mrs. Henry, to whom the amount of the insurance was payable on the death of her husband.

Neither do this book or thes,e reports have even the value of being writings cotemporaneous with the event, for it is not pretended that they were made at the date of payment or to be original entries of such payments, nor can they be considered as evidence against her as the record of the payment of assessments required by the law of the order to be kept. That law, heretofore quoted, required the financier to keep an account in which should be stated any payment of assessments made to him by the members, together with the date of payment. No such book has been presented, nor does it appear that any such book was kept by the financier.

Besides, the very appearance of these books and papers creates a degree of uncertainty and doubt of their correctness. The report referred to is dated on the 14th day of January, and purports to report suspensions and reinstatements on the 15th of January. Then there are erasures and alterations innumerable, and the cross-examination of Davis, the financier, with reference to the reports, developed many errors in the record which he says he really cannot make out, and cannot explain without going over the matter to read it up, and that he cannot give any better statement than he had, which certainly did not explain the discrepancy.

Being referred to the erasures on the return of February 24th, by which Mr. Henry’s name was scratched off, and asked to explain why the back of the duplicate did not correspond with the original, says:

“ The only explanation I can give for that is that it was neglect on my part in making the duplicate; there are a number of times I would make them out, and sometimes would forget to put the suspension or increase on the back of my own; sometimes I would make them out and send them in, and they would be sent back to me again for correction.”

He admits that, in his statement dated February 10th, he overlooked the fact that certain parties had paid; that after looking over his record, he found that they had paid the money before, and that he made the statement without looking at his notes. He says there is no book in which he kept a record of the payments made by Henry.

He is asked how he accounted for the fact that, on January 8th, he returned to the supreme council that Mr. Henry stood suspended on assessment No. 114, when, on December 30th, he had paid No. 114 together with 113 and others. He says No. 114 was due to be paid by the members, as near as he can make put from the book, on the 25th of December. And being pressed as to how he could report him, on the 8th of January, as suspended on an assessment which his receipt shows was paid on December 30th, says, as his explanation, that the money was paid to him after December 25th, and he made the statement there reinstating him, and, being further pressed, says, “ I cannot explain that; I cannot say why I did not put it down.”

He is next shown a book called a “ roll-book,” which he says he kept, which purports to be a record of the payments made by the members on their relief fund account, in which the name of “T. Henry” appears with assessments Nos. 116, 117, 118 and 119, with a cross marked over each, with the words “subject to examination,” which words he says he wrote himself after Henry’s death, possibly the first meeting night in March, and after a dispute had arisen as to whether he was suspended or not; and doubt is further thrown on his marks, from the fact that he does not give the same significance to the same marks, where they appear over the names of other members, that he gives to them when they appear over'Mr. Henry’s name. He says he reported Henry, on the 24th of February, as having been reinstated on February 11th, in order to help the widow, and he made that entry after his death and forwarded the $5.25 to Mr. Shedd, the imperial recorder, who declined to receive it and returned it to him. These instances are but samples of the untrustworthiness of these reports.

The defendants rely, in the next place, on the testimony of C. W. Davis to break the force of the evidence produced by the receipts and Mrs. Henry’s testimony. This testimony is very unsatisfactory, and his memory seems unreliable to a degree.

He says, on being sworn — “ Exhibit C 5,” which is a receipt signed by him, dated February 18th, 1890, for $4.20, purporting to be for assessments Nos. 116, 117, 118 and disability 1— that at that time Mrs. Henry paid him $5.25, and when asked why he gave a receipt for only $4.20, says that it was because he had paid assessment 115, amounting to $1.05, out of his own pocket, for Mr. Henry. Thereupon, “Exhibit C 14” was shown to him, which is a receipt signed by Davis for $1.05, for assessment No. 115, which amount he admits Mr. Henry himself paid him.

Discovering the evident inconsistency of this testimony, he then says that the payment by Mrs. Henry paid not only the assessments named in that receipt, but an assessment ahead, namely, No. 119, which had been called, but which was not yet due.

Afterwards, he says that that payment paid two assessments in advance; that that was his recollection of it; to the best of his knowledge it would be assessment No. 119 and the second one ahead; that she paid up to date and two ahead, as near as he can remember. Then, that there was an assessment called “disability assessment No. 1,” and what he means is that she paid “disability No. 1 ” and No. 119 ; that was $5.25.

It is evident that the case must turn on the true history of the payment of $3, made by Mrs. Henry on the evening of January 15th; for if that money is applied to the two assessments, 115 and 116, the first of which was past due and the other payable that night, then her payment of $5.25 on February 18th, by force of the laws of the society, reinstated her husband on all assessments past due and those payable at that date.

Mrs. Henry’s statement of his payment is substantially that, on the meeting night-in the middle of January, which it appears otherwise was the 15th of January, her husband had intended to go to the meeting, but could not, because he was sick at the time with grippe. She went to Mr. Davis’ house about seven o’clock in the evening, and he not being at home, paid $3 to his son and told him to give it to his father, and that it was for two assessments. That would require only $2.10. She said that that was all the change she had, and that the son then spoke to his mother about the change, when Mrs. Henry said, “ Never mind, my husband will see your husband in the morning, and he can give him the change,” and that she left the $3. She said to Mr. Davis’ son that “ it was to pay two assessments that her husband owed, that just became due that night — one might have been past due and one due that meeting night.” That, after her husband’s death she spoke to Mr. Davis about the $3 which she had left there, and that he said he had never received it. She then said, “Oh, but, Mr. Davis, I gave it to your son; you must have received it;” and he said “You did not;” that he had never admitted receiving the $3 until he had admitted it as a witness on the stand, in the trial of the cause.

Davis says that he received from his son, sometime in the fore part or about the middle of January, $3, left at his house by Mrs. Henry, and that he applied that $3 to assessments. When first asked what assessments that was applied to, he says:

“As near as I can tell you, on the 30th of December, 1889, Brother Henry owed to me something in the neighborhood of $6.30. He paid me $2.10,1 think, which was just before Christmas or New Year’s, and I told him at that time that he must pay me more money; that I could not be keeping him in good standing all the time. He then sent his wife around to me, or around to my house, and she paid to my son §3, which was fifteen cents less than three assessments. That is as far as I can answer, and is as good an explanation as I can make of the matter.”

He is asked:

“Then, as I understand it, you now claim that, on December 30th, when you gave Mr. Henry a receipt for five assessments, do you mean to say that you did not get $5.25?”

He says:

“I mean to say that I did not, but still I gave him a receipt for what he paid me previous to that. No — one moment — let me correct myself — this receipt was not made on December 30th. This receipt was made out and given to Mr. Henry after Mrs. Henry had given me the §3, or left the §3 at my house. Assessments Nos. 110 and 111 were the two assessments that Mr. Henry paid himself to me December 30th, and I told him that he must pay me more money; that I would not continue to send assessments away for him unless he did. Just about the middle of January, Mrs. Henry left $3 at my house, with my son, that I received. I then issued this receipt, dating it back to December 30th.”

He says, further, that he did not receive any more money after Mrs. Henry gave him the $3, until she gave him the $5.25, shortly before Mr. Henry’s death, but he cannot say when he received the money mentioned in the receipt dated January 15th, for $1.05, which is to pay for assessment No. 115. He says he does not believe he has any books to show the exact date when he received the $3, but that what he did with the $3 was to appropriate it to pay himself for what he had loaned to Mr. Henry to pay former assessments that he claimed were due from him, instead of applying it to the assessments, one coming due January 15th, or the other due before that night. He says, “ I claimed the right to take out what I had advanced to Mr. Henry, or on his behalf, before applying any amount paid to me for anything further;” that it was his habit to report Henry suspended, and before the expiration of time that he could be reinstated, would pay the amount himself, so as to keep Henry in good standing in the council, if there was at the time another assessment about due, which he was bound either to report Henry as suspended on or to pay that one also; that he applied the $3 to the assessments that Henry had not paid, letting it run him as far ahead as it possibly would, and suspended him on the next.

Which of these two witnesses is to be believed ? It is true, Mrs. Henry is deeply interested in the result of this suit; but while it may be of no pecuniary moment to Davis, it is important to him in his relations to the order. Mrs. Henry, on the stand, impressed me as a truthful witness. She told a straightforward story, with an air of sincerity and frankness, never hesitating to testify to facts which bore against her, in striking contrast with Davis, who was uncertain, contradictory and ever ready with another story when confronted with evidence of his inaccuracy, to say the least. An examination of the testimony of Davis, attacking the correctness of his receipts, shows it to be exceedingly unsatisfactory, if not entirely unreliable. His first statement would indicate that the receipt of December 30th had been given upon that day, and that he had, at that time, been paid at least some money by Mr. Henry. The excuse he gives, that he had paid assessments out of his own pocket, in order to keep Mr. Henry from being suspended, does not explain his giving Mr. Henry the receipt he did. Henry never was reported as being suspended on Hos. 110, 111 or 112. He was reported as having been suspended on Ho. 113, the 10th of December, which must have been the date on which it fell due. He had until the 9th of January to reinstate himself upon that, and he had until the 24th of January to reinstate himself upon Ho. 114, which fell due December 25th, if he did not, in fact, pay them before either of those dates.

Why should Davis then give Henry a receipt for the payment of these assessments on December 30th ?

He sees the inconsistency of this position, and then takes the ground that the receipt of December 30th was not given until after Mrs. Henry had paid him the $3 on January 15th. If this was the case, why should he date the receipt back? It could not affect Henry’s position in the order, if it was true that he himself had advanced the money to pay the assessments for him.

Davis says that Henry paid him $2.10 only on December 30th, when he owed him $6.30 for assessments he says he had paid, leaving $4.20 due. The payment of the $3 would not have canceled that obligation.

Assessment Ho. 114 was the last one mentioned in the receipt, and the last due up to December 30th, when Davis says Henry paid him $2.10. Six dollars and thirty cents would be the amount of six assessments. If he paid them for Henry, he had paid from 109 to 114 inclusive. He says the $2.10 then paid by Henry was for assessments 110 and 111. What became of 109 ? Why not, if he tells the truth, apply part to the oldest past-due assessment? Why let that stand and credit a later one?

According to this story, the payment of $2.10 on a debt of $6.30 left $4.20 due, and- the credit of $3 would still leave $1.20 to clear up payments he claims to have made. Why should he then give a receipt, including 114, with $1.20 still unpaid ?

The story all hangs on his claim of keeping Henry in good standing by paying when it was necessary to reinstate him and suspending him on the next assessment. As shown before, the $6.30 would run back to 109, and, if Davis tells the truth, we should find Henry suspended and reinstated on assessments 109 to 114 seriatim as they fell due, but the record shows he never was suspended on either 110, 111 or 112, and was not.suspended on 114 in the report on that assessment, and not until a subsequent report.

Having sworn he received no money from the payment by Mrs. Henry of $3, on January 15th, to that made by her of $5.25, on February 18th, he is confronted with his receipt given to Henry for $1.05, under date of January 15th, for assessment 115. He admits the date is not to be relied on, but says that Henry himself paid him the money. It could not have been January 15th, for Henry was sick with the grippe that night; it could not have been before that, or it would not have been for 115 unless 114 had previously been paid. In this emergency he says that he gave Henry this receipt at the same time he gave him the one dated December 30th. This is the third statement he has made of that receipt — first, that it was given December 30th; next when he received the $3 Mrs. Henry paid, and this when Henry paid him $1.05, and he is at last positive that both receipts were given at the same time. This is entirely inexplicable. The date, January 15th, has no particular reference to assessment 115 — it was due December 31st, could be paid on or before January 30th. Why should he draw two receipts at the same time, with different dates, when it could as well have been included in one? It is probable the receipts themselves come nearer the truth than his evidence.

On re-examination he says, in seeming justification of himself, that after the $3 was paid he had a conversation with Henry and then gave him the receipt of December 30th for assessments 110 to 114 inclusive, with the evident intention of creating the impression that such appropriation had been made by Mr. Henry contrary to that of Mrs. Henry when she paid it. In his former testimony he had not said anything about this conversation, but claimed to have made the appropriation to his own debt of his own motion, because he had a right to do so. But in this last statement he does not say that Henry told him to apply it to what he owed him, but that he would do better in the future. A most significant fact in this connection is that Mrs. Henry says Davis always denied having received the $3 until the trial. It is true he denies, it, but she cannot be mistaken, positively asserts it, and I believe she speaks the truth.

In deciding this question of credibility one cannot avoid the impression that if Davis’ story is true, he was not only willing to, but actually attempted to, defraud the relief fund of his order, and to accomplish it made what he now claims was a false return.

The probabilities are all in favor of the truth of Mrs. Henry’s statement. The circumstances were such as to make an impression on her mind. The payment of $3 by her was made on the night of the 15th of January — it was in the middle of winter, her husband was sick and could not attend the meeting. There must have been an urgent necessity requiring her to go to the officer of the council that particular night and make this payment. That necessity was two assessments which must be paid— 115 was past due and 116 was due that night. She acted as the agent of her husband and left the money with the representative of Davis, to be applied to two assessments which should be paid that night. There was certainly no call for her to leave the sick-bed of her husband to make the payments on that particular meeting night, in order to reimburse Mr. Davis an advance which he may have made to keep her husband in good standing in the order. Her memory of the details is clear and distinct, and she is not only uncontradicted, but borne out by the facts. She went to pay two assessments, which amounted to $2.10. She had $3, but did not have the exact change. This led to talk between Davis’ son and his mother, when Mrs. Henry said Davis could settle it with her husband when he saw him. If her errand had been to pay what Davis says her husband owed him, viz., $4.20, there could have been no conversation about change.

I am convinced that this payment was made by Mrs. Henry, on the night of January 15th, for assessments Nos. 115 and 116, and that such appropriation was not changed by Henry after-wards ; and there is so much contradiction and uncertainty in the testimony of Davis that I am unwilling, in the light of Mrs. Henry’s testimony, to give it credit to overcome the evident force to be given to the receipt dated December 30th, 1889.

The release which she signed was induced by the representations of the officers of the defendant council, that her husband was not in good standing in the order at the time of his death, and that she had no claim whatever for the amount of the certificate which she held. An abandonment of a claim made under such circumstances, though with all the formality of a release, will not be permitted to stand in a court of equity.

The fact that she had the benefit of the advice of a distinguished counsel of this state, does not deprive her of this remedy, because he was likewise misinformed by these same parties with reference to her rights.

The use by Mrs. Henry of the $5.25 left on her table by Davis, falls within the same principle. The defendant can be put in statu quo with reference to the $500 paid on the release and this $5.25 by the decree.

I am of opinion that the release should be set aside and that' a decree should be made in favor of the complainant.


text:
    Georgene Waters v. Richard Bew and Sophia Bew, his wife.
    1. Under an agreement for the sale of lands the purchaser is entitled to a ■deed describing the land in the words of the agreement, without any limitations other than those therein agreed upon.
    2. Where a contract to convey is part of an agreement to lease the premises for a term of years, specific performance will not be refused on the ground that the contract is unilateral.
    3. Specific performance of an agreement to convey lands, reserving to the ■grantor a right of way, will not be refused because the location of such way is uncertain, the grantor having the right to designate it in the deed.
    On bill and answer.

      Mr. Allen B. Endieott and Mr. Samuel H. Grey, for the complainant.

      Mr. David J. Paneoast, for the defendants.
   Green, V. C.

Richard Bew was the owner in fee of a tract of land on the easterly side of Illinois avenue, Atlantic City, lying between what is known as the Windsor Hotel tract and the ocean, the title to which he derived by deed from Mary Disston, executrix of Henry Disston, dated September 18th, 1880, and of the land under water in front of said upland' and in front of the easterly half of said Illinois avenue, the title to which was derived by two several grants from the State of New Jersey, the one dated May 6th, 1882, and the other dated June 23d, 1883.

Richard Bew and Sophia, his wife, by an agreement with Georgene Waters, dated at the beginning thereof, May 21st, 1880, and in the attestation clause, May 31st, 1888, in consideration of the yearly rent therein reserved, and the agreements and covenants therein contained, leased unto the said Georgene Waters

“ all that lot of land situate in Atlantic City, in the county and state aforesaid, on the easterly side of Illinois avenue, southerly from Pacific avenue, and extending from the ocean side of the Windsor lot or line, formerly called the-Berkeley property, southwardly to the ordinary high-water mark of the Atlantic ocean and eastwardly from Illinois avenue, between the southerly line of the Windsor lot and said ordinary high-water line of the said ocean, a distance-of seventy feet,”

with conditions as to the use of the said property. The lease-was to begin on May 21st, 1888, and to expire on the 21st of May, 1893, at an annual rent of $300.

The said agreement contained these further covenants, viz.,, that upon the payment by the said complainant to the said defendants,

“ at any time during said term of five years, of the sum of 815,000, they, the parties of the first part, will grant, bargain and convey to the said GeorgeneWaters, her heirs and assigns, the land above mentioned and described, with covenants of general warrantee, upon the condition, however, that there be-reserved to the parties of the first part a right of way across said land, ten feet in width, beginning at a point in Illinois avenue at least thirty feet south of the southerly line of the Windsor lot and extending eastwardly across said lot;”

and upon the further coudition “ that no buildings shall be erected soutwardly of said line, thirty feet south of the Windsor lot as aforesaid.”

The complainant entered upon the possession of the property and occupied it continuously, paying therefor the rent reserved.

Before the expiration of the lease, she demanded a deed and offered to pay the purchase-money. She procured a deed of the property to be drawn by counsel, from the defendants to herself, conveying the land by the following description:

“Beginning at a point in the east line of Illinois avenue, 975 feet south of Pacific avenue, and running (1) southerly, in the easterly line of Paaifie avenue, to ordinary high-water mark of the Atlantic ocean; (2) easterly along the ordinary high-water mark of said ocean, 70 feet; (3) northerly, parallel with Illinois avenue, to a point 975 feet south of Pacific avenue; (4) westerly, parallel with Pacific avenue, 70 feet, to beginning. Excepting and reserving to the grantor and his heirs and assigns a right of way ten feet in width across the lands hereby conveyed, beginning at a point in the easterly line of Illinois avenue, 30 feet south of the southerly line of the Windsor hotel lot, and extending eastwardly, in a line parallel with the line of the Windsor lot, across the lot hereby conveyed. And this conveyance is made upon the condition that no buildings shall be erected southwardly of the said land, 30 feet south of the Windsor Hotel lot as aforesaid.”

This deed the defendants refused to execute, but ou their part they did prepare, execute and tender a deed describing the prop■erty as follows:

“All that lot of land situate in Atlantic City, in the county and stale afore■said, on the easterly side of Illinois avenue, southerly from Pacific avenue, -and extending from the ocean side of the Windsor lot or line, and formerly ailed the Berkeley property, southwardly to the ordinary high-water mark of ■the Atlantic ocean, and eastwardly from Illinois avenue, between the south•erly line of the Windsor lot and said ordinary high-water line of the said ocean, a distance of 70 feet. Excepting and reserving to the grantors, their heirs and assigns, a right of way across said land ten feet in width, beginning at a point in Illinois avenue at least 30 feet south of the southerly line of the Windsor lot, and extending eastwardly across said lot. And this conveyance is made upon condition that no buildings shall be erected southwardly of the said line, 30 feet south of the Windsor lot as aforesaid. And this conveyance is not intended to convey any part of or interest in the land under water southward of and adjoining the high-water line herein referred to, which the •grantor, Richard Bew, acquired from the State of New Jersey by two several ■deeds” &c.

This the complainant refused to receive, and has brought this •suit for a specific performance of the contract, under the following prayer:

“That the said Richard Bew and Sophia Bew may be compelled, by this Honorable Court’s decree, specifically to perform the said agreement with your ■oratrix, and after being paid the purchase-money, to execute to your oratrix a proper conveyance of said tract of land ; your oratrix hereby offers to pay said purchase-money at any time,”

•and for other relief.

In equity, upon an agreement for the sale of lands, the contract is regarded, for most purposes, as if specifically executed. The purchaser becomes the equitable owner of the lands, and the vendor of the purchase-money.' After the contract, the vendor is the trustee of the legal estate for the vendee. Haughwout and Pomeroy v. Murphy, 7 C. E. Gr. 531 (at p. 546).

Applying this principle, the complainant, on exercising the option, became the equitable owner of the land, and the defendant Richard Bew the equitable owner of the purchase-money.

The suit for specific performance is for the purpose of giving such equitable owner the legal title.

In accomplishing this end, such equitable owner is entitled to a deed of the land agreed to be conveyed, and if any dispute should arise as to the description, in the words of the agreement.

The deed prepared by the complainant not only misnamed Illinois avenue, but did not describe the lands in the words of the agreement, and also located the right of way. The deed tendered by the defendant did describe the property as in the agreement, but annexed thereto a limitation of the conveyance not therein contained, and the dispute between the parties is really as to this limitation.

I am of opinion that the complainant is entitled to a deed in the words of the agreement, running to high-water mark, without any clauses of limitation other than those agreed on.

If a party should make a contract for the purchase of a lot of land bounded on a highway, he would undoubtedly be entitled to a deed conforming to that description without limitation or addition not contained in his agreement.

"Whether, in this case, such a description would or would not entitle the grantee to any rights to lands under water, is a question which it is not the province of this court, in a suit of this character, authoritatively to determine, the simple question being as to the deed which the complainant is entitled to receive. I do not think that the complainant has forfeited her right to specific performance by the preparation of the deed which she requested the defendants to execute, or her refusal to accept the deed tendered.

It is objected that this contract will not be decreed to be specifically performed because it is unilateral. This agreement to convey is part of an agreement to lease the premises for a term of years. Under that lease, and that part of the agreement, the complainant has paid the defendants the yearly rent reserved, and within the time limited elected to exercise her option of purchase. The rule as to the non-enforcement of contracts where there was no mutuality of covenants and remedy, is not without exception; and it is held in Hawralty v. Warren, 3 C. E. Gr. 124, that an optional agreement to convey or renew a lease, without any covenant or obligation to purchase or accept, or without any mutuality of remedy, will be enforced' in equity, if it is made upon proper consideration, or forms part of a lease or other contract between the parties that may be the true consideration for it. See, also, Pom. Spec. Perf. § 169 n. 1, and cases cited; also, Hall v. Center, 40 Cal. 63; Maughlin v. Perry, 35 Md. 352.

It is further objected that this agreement will not be specifically enforced, because it is indefinite with reference to the location of the right of way to be reserved to the grantors. Taylor v. Gilbertson, 2 Drewry 391, cited by defendants’ counsel, was to enforce a contract for the conveyance and purchase of certain lands. The vendee refused to perform, on the ground that the title was clouded by a provision in some former conveyance or' agreement by which a driveway was to be made, but the vice-chancellor held that this was not a valid excuse, as it was doubtful where it was intended that this driveway was to be located,, or who was to make it, and that there was no one who could take advantage of the covenant, and therefore held that the vendee took no risk by accepting the conveyance.

I see no difficulty in this case. The vendor is to have a right of way from Illinois avenue across the lot. Ho houses are to. be built upon this tract. The only provision of the agreement,, with reference to its location, was that it was to begin at a point in Illinois avenue, at least thirty feet south of the southerly line of the Windsor lot.

The right of way is one to be reserved by the grantors. They have the right to locate it. The only restriction in the agreement as to its location is that it shall not be within a certain distance of the Windsor lot. The grantors should exercise their right of designation and they must do it once for all. Being a reservation contained in the agreement, and the right of location resting with the grantors, there can be no objection to the designation being contained in the deed, which procedure is sanctioned by the complainant, by incorporating it in the deed prepared by her counsel.

In my opinion, the complainant is entitled to a decree for specific performance, to receive a deed from the defendants, for the property as described in the agreement, with the conditions and limitations therein expressed, and without any others, and will advise a decree to that effect.


author: Green, Y. C.

text:
    John H. Ellis’ Executors v. Charles E. Throckmorton et al.
    A testator, after giving, by will, the residue of his estate to certain people, “subject to the limitation hereinafter expressed,” provided that in case of the death of any of the legatees, his share was to be divided among the next of kin of such legatee according to the laws of the state. By the limitation afterwards imposed on E.’s shares of the estate she took only a life interest, with a remainder for life to certain of her children then living, with remainder to one of E.’s grandchildren. — Held, that the clause providing for the distribution in case of the death of a legatee did not apply to E.’s share, and she having died before the distribution, her children took only a life estate.
    On bill, answer and proofs.

      Mr. Frank P. McDermott, for the complainant.

      Mr. William T. Hoffman and Mr. William Y. Johnson, for the defendants William S. and Charles E. Throckmorton.

      Mr. Frederick Parker, for the guardian ad litem of infant defendants.
   Green, Y. C.

This bill is filed by the executors of John H. Ellis, late of Freehold, in the county of Monmouth, in this state, deceased, .asking for a construction of his will.

His will is dated August 19th, 1891, and after several specific legacies proceeds as follows :

Seventh. All the rest and residue of my estate, real, personal and mixed, I •direct my executors to sell, either at public or private sale, at such time or times as to them shall seem best for the interest of my estate, and to divide the proceeds thereof amongst my brothers and sisters, share and share alike, subject to the terms and limitations hereinafter placed upon the shares of C. Holmes Ellis, E. H. Throckmorton and Ellen H. Ellis.
“ In case of the decease of any one or more of my said brother and sisters, before such division, then the share of such deceased person shall be paid and ■distributed to his or her next of kin, according to the laws of the State of New Jersey, in cases of persons dying intestate.”

He then directs that the share of the principal sum devised for the benefit of his brother shall be invested, and the net income paid to his said brother semi-annually during his life, and after his decease to be divided amongst his children, share and share alike, with a provision in case of the death of any child ^before division, its share shall be paid to its next of kin.

Yext—

“ The share of said principal sum devised for the benefit of my sister, Elizabeth H. Throckmorton, I direct my executors to invest and keep invested in good, safe and reliable securities, to pay the income and interest of the same, after payment of taxes and costs of investment and reinvestment, to my sister, Elizabeth H. Throckmorton, semi-annually, for and during her natural life, ■and after her decease to divide said share in two equal parts. One of said half parts I direct my executors to invest and keep invested in some safe and reliable security, and to pay the interest and income thereof, after payment of taxes and expenses, to William S. Throckmorton during his natural life, and at his death to pay said share to the lawful heirs of said William S. Throckmorton.
“ The other one-half part of said share I direct my executors to invest and keep invested in some safe and reliable securities, and to pay the interest and income thereof, after payment of taxes and expenses, to Charles E. Throckmorton during his natural life, and at his death to pay said share to the lawful heirs of said William S. Throckmorton.”

He directed his executors to invest the share of the principal devised for the benefit of his sister, Ellen H. Ellis, and to pay the income to her for life,

“ and after her decease to divide the same amongst my brother and sisters, in the same manner, upon the same terms and with the same limitations a? I have above directed my whole residuary estate to be divided.”

By a codicil dated November 15th, 1892, he directed his executors to pay to Ellen H. Ellis, her heirs or assigns, the share of the rest and residue of his estate directed to be invested for her benefit, without any limitation or qualification, giving the same to her absolutely.

By the eighth clause of the will, he authorized his executors,, if they desire so to do, to select and retain such of his stocks, bonds or other securities, as he might have at the time of his decease, and which would go to make up part of his residuary estate,

“ to an amount not to exceed the amount directed to be invested for the bene- ■ fit of his brother, C. Holmes Ellis, Elizabeth H. Throckmorton and Ellen H. Ellis.”

By the ninth clause, he gave his executors power to rent, keep, maintain and care for the property going to make up the said residuary estate, until such time as the same should be sold and disposed of as therein provided, and directed that any rents, receipts or profits that might arise therefrom, after payment of taxes, repairs, insurance and necessary expenses, should be made a part of his residuary estate and go as therein provided.

He originally appointed 'William S. Combs and Frank P. McDermott executors of his will, but by the codicil revoked the appointment of Mr. Combs and appointed Henry H. Longstreet. in his place.

John H. Ellis died January 10th, 1893, and his will was duly proved January 24th, 1893, before the surrogate of Monmouth county, by the executors, who took upon themselves the burthen of the execution thereof.

John H. Ellis left no wife or issue him surviving. He left one brother, Charles Holmes Ellis, and four sisters, Elizabeth H. Throckmorton, Ellen H. Ellis, Mary A. Throckmorton and Emma T. Woodhull.

He left personal estate to an amount, by the inventory, of $38,449.68 and real estate valued at $9,200. There were few debts, and the special legacies aggregated less than $4,000, so that Mr. McDermott, executor, estimates there will be at least $40,000 to distribute among the residuary legatees.

Elizabeth H. Throckmorton, the sister of the testator, died on or about July 13th, 1893, leaving her surviving her two sons, Charles E. Throckmorton and William S. Throckmorton. William S. Throckmorton is married, his wife’s name being-Susie Ella Throckmorton, and they now have four children, namely, Aaron Rhea Throckmorton, Willard Porter Throckmorton, Harold Throckmorton and John Ellis Throckmorton, all under the age of fourteen years.

Claim having been made by William S. Throckmorton and Charles E. Throckmorton, on the executors, that they were entitled to so much of the residuary estate as had been bequeathed to their mother, Elizabeth H. Throckmorton, for life, this suit is brought for a construction of the will.

The contention of the Messrs. Throckmorton is based on the-clause of the will as follows :

“ In case of the decease of any one or more of my said brother and sisters, before such division, then the share of such deceased person shall be paid and. distributed to his or her next of kin, according to the laws of the State of New Jersey, in cases of persons dying intestate.”

The cardinal rule in the interpretation of wills is that the-intention of the testator, as gathered from the words of the will, is to govern, and as a corollary that all provisions of the will are, if possible, to be made effective. To ascertain the object of the testator in the clause invoked, we must have recourse not only to the words of the clause, but to the scheme of the testator as shown by all of the instrument which may bear upon the question in dispute. It is evident that the scheme of the testator, as ascertained from the original will, was that his residuary estate was to be divided equally among his sisters and brother,, share and share alike; that with reference to two of his sisters; and his brother, they were to enjoy only the net income of their ■shares for their lives, the share of each being limited over in remainder. As to the shares of the other two sisters, they were to be paid to them respectively, absolutely, and to this class, by his codicil, he added his sister Ellen; that he intended the share directed to be invested for the benefit of his brother to go to that brother’s children after his decease; and as to the share ■of Mrs. Throckmorton, he intended that it, in the first place, was to be held by the executors for her benefit during her life, .and after her death divided into two equal parts, one part to be held for the benefit of William S. Throckmorton and the net income paid to him for his life, and after his death to go to the ■children of William S. Throckmorton, the children of William ■S. Throckmorton being thus the remaindermen of the shares of William S. and Charles E. Throckmorton.

This is the testator’s scheme for the disposition of his estate.

Desiring to anticipate the possible contingency that some one of the legatees might die before distribution, he inserted the provision which is now invoked by the claimants. Is it to receive the construction contended for ? If so, the conditions and limitations imposed by the testator upon the share of Elizabeth H. 'Throckmorton are annulled. It is plain that this provision does not in any way defeat the scheme so far as the shares of his sisters, Mary A. Throckmorton and Emma T. Woodhull, ■under the original will and Ellen H. Ellis under the codicil, are concerned. Neither does its direction ultimately affect the ■share of the brother, Charles Holmes Ellis, for, under the will, ■there is but the limitation over to his children. The only question which can arise is as to the effect this clause is to have upon the share of Elizabeth H. Throckmorton. The bequest of the residuary estate is that the executors shall

divide the proceeds thereof amongst my brother and sisters, share and share ■alike, subject to the terms and limitations hereinafter placed upon the shares ■of C. Holmes Ellis, E. H. Throckmorton and Ellen H. Ellis.”

Then follows the clause in question, namely,

“ that in case of the decease of any one or more of my said brother and sisters, before such division, then the share of such person shall be paid and distributed to his or her next of kin, according to the laws of the State of New Jersey, in cases of person dying intestate.”

That he did not intend, by this clause, to revoke the conditions and limitations attached to some shares by the former clause, is shown by the subsequent limitation over, in the original will, of the share of Ellen, wherein he reapplies the same terms and conditions.

There are two classes of beneficiaries, one to take absolutely, the other to take only for life; and in the case of Mrs. Throckmorton, with another estate for life and a further limitation over.

We have seen that the directions of the general clause may be literally applied to the one class and to the brother’s share without disturbing the testator’s intention as expressed, but in the case of Mrs. Throckmorton’s share, such application will absolutely defeat the positive terms and limitations under which the legacy to her is given.

The true construction of the provision, it seems to me, is that the share of any of the devisees or legatees not subject to a limitation inconsistent therewith should, on the death of such legatee or devisee prior to the division, go to his or her next of kin, but as to shares bequeathed on terms and limitations which would be defeated by its provisions, it is to be held inoperative, as contrary to the clearly-expressed intention of the testator. There is authority for the position that when a literal construction of a general clause will, in its application to particular legacies, carry into effect the clear intention of the testator, but will defeat such intention as to other legacies when applied to them, such general clause is to be held to relate to the former and not to the latter class of legacies.

In Adams v. Clark, 9 Mod. 154, the testator devised several specific legacies to several persons, and, in particular, he devised specific legacies to each of his grandchildren, “to be paid at their respective ages of twenty-one years or days of marriage, which should first happen; ” and by a subsequent clause in his •will, lie appointed that all the legacies thereby devised shall be paid within one year after his decease. The grandchildren, though under age and unmarried, exhibited their bill and insisted that, by virtue of this last clause in the will, their legacies ought to be paid within a year after the death of the testator. It was held, however, that the subsequent clause in this will, which seemingly contradicts the payment of the legacies to the grandchildren in point of time, must be construed so as it may not be repugnant to any former clause in the same will, and therefore that clause must only relate to the other specific legacies given to the other legatees, and not to the legacies devised ■to the grandchildren.

Hawkins on Wills, page 5, proposition 4, says the intention •of the testator, which can be collected with reasonable certainty from the entire will, with the aid of extrinsic evidence of a kind properly admissible, must have effect given to it beyond and even against the literal sense of particular words and expressions. The intention, when legitimately proved, is competent not only to fix the sense of ambiguous words, but to control the sense even of clear words, and to supply the place of express words in cases of difficulty or ambiguity.

Lord St. Leonards, in Grey v. Pearson, 6 H. L. Cas. 61, says: Nobody is more disposed than I am to abide by clear words, and to give to them their natural and grammatical meaning, but I never did, and I never can, come to the conclusion that the words of a will cannot admit of modification according to the real intention of the testator, as you find it from other expressions, or from the whole context of the will. It is difficult to lay down any abstract rule upon the subject, but where I find the intention and I find words pointing out the intention, and that if I give to the words their simple meaning, according to grammar and according to their plain prima facie import, I defeat the intention, I hold that I am bound by every rule, both of law and equity, to see whether I cannot give to them, by natural construction, an import which will effectuate and not ■defeat the intention.”

Lord Kingsdown, in Towns v. Wentworth, 11 Moo. P. C. C. (N. S.) 526, says: When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will, which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take •effect, such expressions must be discarded or modified.”

I think there can be no doubt as to the intention of the testator, with reference to Mrs. Throckmorton’s share; and that he intended that it should ultimately go to the children of William S. Throckmorton; and that his sister, Mrs. Throckmorton, should enjoy the net income thereof during her life; and that his nephews, William S. and Charles E. Throckmorton, should each enjoy the net income of a moiety thereof during their lives respectively.

To give the clause invoked by the Messrs. Throckmorton the construction claimed, the share of Mrs. Throckmorton, by her •death, would pass absolutely to them. There is an apparent reason for this paragraph, so far as the share of his sisters, to whom they are given absolutely on division, is concerned, viz., in order to avoid any possible question as to who would take in the event of death before division, but no such question was likely to arise with reference to the share of Mrs. Throckmorton, and I therefore think that this will should be construed so as to apply this provision only to the shares which are not limited over. But if we are not justified in disregarding this provision so far as the share of Mrs. Throckmorton is concerned, and if it is consequently true that there is an irreconcilable repugnancy between this provision and the limitations over, annexed to the devise to Mrs. Throckmorton, then it is clear that as these are subsequent provisions they are to be given effect.

2 Jarm. Wills 44 (R. & T. ed. *472): It has become an established rule in the construction of wills, that where two classes or gifts are irreconcilable, so that they cannot possibly stand together, the class or gift which is posterior in local position shall prevail, the subsequent words being considered to denote a subsequent intention.

I am, therefore, of opinion that the executors should be advised that they are not to pay over the one-fifth portion of said estate-so bequeathed to the said Elizabeth H. Throckmorton for life, to-the said Charles E. Throckmorton and William S. Throckmorton or next of kin, but should invest and retain the principal sum of said one-fifth portion, and pay the income only to the said Charles E. Throckmorton and William S. Throckmorton for their lives, and at their deaths to pay over the said principal sum to the heirs of the said William S. Throckmorton.