Opinion
10-09-1900
FOTH v. ELLENBERGER et al.
M. T. Rosenberg, for complainant. Lewis A. Allen and George P. Rust, for defendant Ellenberger.
Bill by Herman Foth against Caroline Ellenberger and another to set aside a deed and a will. Decree for complainant,
M. T. Rosenberg, for complainant.
Lewis A. Allen and George P. Rust, for defendant Ellenberger.
PITNEY, V. C. The subject of the controversy in this cause is a house and lot situate in Carlstadt, in the county of Bergen. Prior to December, 1898, the title of it was vested in Louis Foth, now deceased, the father of the complainant, Herman Foth. On December 10th of that year, Louis Foth executed a will, by which he devised it to the defendant Caroline Ellenberger for life, with remainder to the defendant William Foth. On the 12th of December, 1898, he executed a deed of conveyance absolute of the same premises to Caroline Ellenberger. Herman Foth was the only child and heir at law of Louis, and tiles his bill against Caroline Ellenberger and William Foth, who is his son, to set aside both the will and the deed. It was admitted at the hearing that the will was admitted to probate by the surrogate of Bergen county, and that an appeal was duly taken by the complainant herein from that decree, which was pending at the time of the hearing, undetermined.
Of course, under these circumstances, this court will not assume jurisdiction to determine the questiou of will or no will, and will only deal with the question of the validity of the deed. That was assailed on the general ground that it was made without consideration, by the undue influence of Caroline Ellenberger, exercised at a time when the grantor was laboring under the disease of senile dementia, of which he confessedly died on August 3, 1899, less than eight months afterthe making of the will; and that his expressed instruction to the scrivener who prepared the deed was that he desired to convey the property to Mrs. Ellenberger for life, and at her death that it should go to his grandson William Foth, and hence that the deed, as prepared and executed, did not carry out the express wishes of the grantor.
The facts of the case developed at the hearing are as follows:
The deceased grantor, with his son, the complainant, foreign born, came to live in Rutherford nearly half a century ago. His business was that of a merchant tailor. He kept a small dry-goods store, and in connection with that carried on the tailoring business. The complainant was his only child, and for over 40 years was a member of his family. He married in 1880, and his wife bore him three or four children. She died in 1884. Complainant's mother died in 1880, and his father shortly after married his first wife's sister, who died in 1894. Shortly before her death, after she became helpless, the complainant, in 1893, at the instance and request of his father, married a second wife, and brought her to the common home of the parties. She has borne him three children. She had at one time served as a domestic in the family, and was well known by the father. The son during these years assisted his father in the store, mainly in buying and selling goods, and was also engaged in the business of an insurance agent, scrivener of deeds, wills, etc., and clerk of the board of education. Both were highly respectable, Industrious, and worthy citizens, and were both reasonably thrifty. The father, on the 1st of November, 1896, was possessed of two houses and lots, adjoining each other, one called the "large house," in which he lived with his son and his family, and the other and smaller one that here in dispute. Both were free of incumbrance, and the father had also $800 in bank. The son was worth three or four thousand dollars, invested in bonds and mortgages. The father, in 1896, had attained the age of 78 years, and desired to retire from business, and on that occasion entered into a verbal contract with his son, the complainant, as follows: The son was to take the stock of goods in the store, the cost price of which was about $2,500, but which was in fact worth about half that sum, and was to be the owner in equity of all the real estate, but was to provide his father with one of the suites of rooms in the house, consisting of parlor, sitting room, and two bedrooms, with competent board, etc., and a cash payment of seven dollars a week for spending money. The son further agreed to put the premises in repair. The contract was entirely oral. The parties lived in perfect amity. The son's wife seemed to be not only entirely satisfactory to the father, but rather a favorite with him. Mrs. Ellenberger, the defendant, kept a little hardware store a few doors from the residence of the Foths, and shortly after this new arrangement the old gentleman developed a desire for her company, and visited her frequently. He took her on trolley excursions and to places of public amusement. This disposition increased, and, I think, was, later on at least, encouraged by Mrs. Ellenberger. The proofs show that on several occasions she gave him invitations to visit and take supper with her. At the time that the arrangement was made between the father and son, the father, besides being entirely free of debt, had, as before stated, about $800 in bank, $400 of which he loaned or gave to his son, the complainant, and the other $400 kept for his personal use. The father very soon used up the $400, and also the whole of the income of $7 a week, which was paid to him regularly by his son, and the son naturally believed that he was spending this money on Mrs. Ellenberger. The evidence satisfies me that he was right in this supposition. Some time in the year 1897, or early in 1898, the complainant's wife found fault, in the presence of the old gentleman, with the three sons by the first wife, who were at that time members of the family, because they did not on a certain occasion come promptly to their midday meal, and put her to trouble because of their tardiness in that respect. They had been detained at Mrs. Ellenberger's house. The grandfather, who was present, expressed dissatisfaction at the stepmother's chiding of these children, and in turn chided her in severe and abusive terms, using vile epithets, and attempting personal violence upon her, and finally called the boys to go with him to Mrs. Ellenberger's. In the course of the quarrel, Mrs. Foth, irritated by the circumstances, stated that she was dealing with the boys, and not with their grandfather, and charged him with caring more for Mrs. Ellenberger than for the members of his own family. This angered the old gentleman, and excited his resentment against Mrs. Foth, which he afterwards seemed to cherish. It appears that he reported to Mrs. Ellenberger what Mrs. Foth had said about their intimacy. Afterwards, in the spring of 1898, he repudiated the verbal contract that he had made with his son to give him the pieces of real estate; whereupon the son declined to pay him the full seven dollars a week, and said he could not afford to pay him more than four dollars a week. This the old gentleman accepted, and seemed satisfied with it until on one occasion, when he asked for a payment then due, and his son, who had been confined to his bed by illness, stated he did not have so much money on hand, except what belonged to his clients, and that he could not pay it out of that money, and begged off for a few days. This angered the father, and he immediately procured a mortgage loan of $1,200 upon the larger of the two pieces of property. The son heardof this, and, being satisfied that his father was squandering his money upon Mrs. Ellenberger, declined to pay him any more. The proceeds of the mortgage, amounting to $1,167.50, were paid to him by check dated July 2, 1898, and on July 8, 1898, he deposited $1,100 in the Dry Dock Savings Institution of New York to the credit of Louis Foth and Caroline Lang, by which name Mrs. Ellenberger was known. That remained 'to their joint credit until after his death, which occurred on the 3d of August, 1899. Shortly after making this mortgage, and the refusal of his son to pay him any more money, he withdrew entirely from his son's house, and served notice, through a lawyer, on the son to vacate the premises, which the son declined to do; and thereupon the father set about selling his property, and in the month of August conveyed the more valuable piece, which he had just mortgaged, to one Egert, for $2,500. The real value was understood to be at least $500 more than that. The reason given by the old gentleman at the time for selling at that price was that he did not himself wish to actually institute proceedings to eject his son therefrom, and, as he needed the money, he was willing to sell at a sacrifice. Ejectment was brought against the complainant herein for the premises covered by that deed, and the matter was settled between them without a trial. In August the father went to New York, and stayed at a boarding house there about six weeks, when he returned to Carlstadt, and took up his abode with Mrs. Ellenberger. Later on he employed a Mr. Allen, of Passaic, to prepare the will in question, giving him memoranda, and the same was duly executed by him on December 10, 1898, at Mrs. Ellenberger's house, in the presence of witnesses, under the supervision of Mr. Allen. The next day, December 11th, he called at Mr. Allen's office, at Passaic, a mile or two away, and told him that he had had another muss with his son (there was no foundation for this), and that he was afraid they would attack the will, and wished to make a deed of the premises to Mrs. Ellenberger for life, and at her death to his grandson William. In pursuance of that instruction, Mr. Allen prepared the deed here in question, and the next day, the 12th, took it to Mrs. Ellenberger's house, and it was there executed and delivered. The next spring the old gentleman manifested marked symptoms of senile dementia, and died of that disease on the 3d of August. For some time before his death he was radically insane.
The great weight of the evidence of all the physicians is that there are no recorded cases where any person has died of senile dementia alone, as this party did, unless the disease had been running a year or more; and when the facts in this case were stated to one of the physicians, whose manner impressed me with his learning and soundness of judgment, his opinion was decidedly that the old gentleman did not enjoy the full use of his senses at the date of the execu tion of this deed. Senile dementia is a distinct disease of the brain, quite distinguishable from mere senility and general weakness of the vital powers. It is insidious in its approach, and not at first recognizable, except on close observation. Several circumstances proven in the cause are relied upon as indicating a lesion of the mind prior to the date of the conveyance in question. One was that he developed an unnatural desire for sexual intercourse with women, and showed a lack of sense of propriety in indecently exposing his person. A Mrs. Cordes, a poor, but respectable, old charwoman, who washed for Mrs. Foth, and on those occasions used one of the old gentleman's rooms for a drying room, swears that on one occasion, some time before the period here in question, he accosted her, and expressed a desire to have connection with her; that she refused to understand or notice his language, and that shortly afterwards he took advantage of her presence in his room, while hanging the clothes to dry, to seize her person for the purpose of having connection with her; that she resisted him and pushed him away with force. Mrs. Huber, the mother of Mrs. Foth, swears that on one occasion, as she was taking the old gentleman's coffee to him in his room in the morning, she met him in the hall on his way from his room to the water-closet in a state of perfect nudity, and that he manifested no shame or embarrassment. Again, it is sworn to in the case, in such a manner that I believe it, that Mrs. Ellenberger herself, immediately after the quarrel over the dinner hour, visited! Mrs. Foth to call her to account for what she had said about her on that occasion, and in the course of her conversation spoke of the old gentleman as a ram, indicating that he was showing a desire for sexual intercourse. Then a witness, whom I have no reason to disbelieve, swears that in August, 1898, shortly after he had conveyed the piece of property to Mr. Egert, he went to the office of the broker who negotiated that sale, and inquired whether he had conveyed both pieces of property to Mr. Egert, seemingly forgetful of the contents of the deed which he had executed only a few days before. This is denied by the broker, but I believe it to be true. After the son had taken the business under the arrangement of November 1, 1896, the father occasionally helped him in the store, and on one occasion the son came in and found him engaged in selling some goods to a lady, and both seemed to be embarrassed, and acted as if something unusual had happened between them. The father handed him the memorandum of the sale he had made, and upon examination the son found serious mistakes in it, but the son swears that he also suspected that his father had been making some improper advances to the lady. On another occasion the son sent the father to New York to purchase some goods for him, and upon his return the fathertold the son that when he finished his business he had taken a street car to go downtown to the ferry on the way home, and some time afterwards found himself a considerable distance uptown; in short, had gotten into a car going the wrong way. Again, Mr. Ballin, a New York merchant from whom the father had purchased goods for many years, and who knew him well, swears that in 1897 he came into his store to order some goods for the son, and that in the course of the transaction, and in talking with him, he noticed a marked change in his manner and in his speech. He was not the same man that he had known previously. Again, Mr. Bamberger, the principal of the public schools in Carlstadt, and an intelligent and reliable witness, was for several years brought in close contact with the parties by reason of the son being clerk of the school-district board. He testifies to the great mutual confidence and respect between the father and the son, and the great dependence of the father upon the son, and the great liking expressed by the father for the son's wife, and to his expressions during the first year after November, 1896, of satisfaction with his situation, and the treatment he received from his son and his wife. And he further testifies that prior to what in the case was called the "rumpus," namely, the quarrel about the elder children's failure to come promptly to dinner, and before he heard of any trouble between the parties, he heard and saw something in the father's conduct and speech that excited his suspicion, and he advised the son to have the verbal gift made by the father put in writing. The son declined, saying that he had perfect confidence in his father. A Mrs. Ruyman swears that she was a member of a building loan association for which the son acted as agent, and was in the habit of paying him $10 every month, and that in 1897, before any trouble arose between the parties, she called upon the son to make a payment, found the son absent, and the father at the store. The father wished to take the money from her, but she declined to give it to him, whereupon he told her that his son would swindle her out of it. That the old gentleman was deeply enamored with Mrs. Ellenberger was abundantly proven, and their amorous behavior when together was a matter of common observation and gossip. When at home in the daytime he was in the habit of intently watching her movements from his son's house. As soon as he received from his son his weekly payment of $7, he would proceed as quickly as possible to her house, and in a day or two would be penniless. During this period he spent the $400 which he had in bank, and the proceeds of the sale of his house, nearly $2,500, less the amount he deposited to the joint credit of himself and Mrs. Ellenberger in New York, and also all the money which he received from his son. The circumstances disclose no object upon which he could have spent this money, except Mrs. Ellenberger. This unnatural and morbid excitement of the amorous faculties in a man over 79 years old is one of the symptoms given by the physicians of approaching senile dementia. There are other small matters, besides those stated, not worth while mentioning; but, in my judgment, the most persuasive fact in the case tending to show a change in his mental powers is his entire loss of confidence in and affection for his only child, without, as it seems to me, any adequate cause therefor.
There was evidence given by several intelligent witnesses who did business with the father during this period to the effect that they found him sound in mind and discovered nothing unusual. This is, in one sense, positive evidence, and, in another sense, negative evidence, and, taken in connection with the well-established facts, is of great value in determining the degree of the deterioration of the mental faculties. But I do not find it necessary to determine whether on the 12th of December, 1898, when he executed the deed in question, he was entirely disabled from transacting such a piece of business. It is enough to say that the evidence satisfies me that he was in a condition where he was not able to take care of himself in choosing and determining the proper mode in which to carry out his expressed and apparently settled intention. That intention was contained in his will, which gave to Mrs. Ellenberger the use of the house and lot here in question for her life, with remainder to his grandson William. Mr. Allen is quite clear and decided in his recollection that the testator was emphatic in stating that his desire was that his grandson should have this house and lot at Mrs. Ellenberger's death. His account of it is as follows: "Well, then, I think it was a day or two afterwards, he called up to my place, and asked me— He said that his son, Herman, he had heard, or he told me that they had had some sort of a rumpus again, and he was afraid his son, Herman, was going to make trouble for him, and he wanted to be sure that Mrs. Ellenberger would have the life interest of this property, and wanted to be sure it would go to his grandson at her death, and he asked me if it would make any difference if he was to make a deed to her of that property. He said she had been very kind to him, and treated him better than his own family had,—a great deal; and I said, 'If it is your wish to make a deed to her,' I says, 'so far as that goes, it won't interfere with your will.' He says, then, 'I would like to have you draw up a deed for that property to her.' He says, 'She is to leave it to my grandson at her death, and that is the way I want you to make the deed.' So I drew up the deed. I didn't have time to draw it up that day. I think this was the next day after he made the will. I didn't have time to draw it that day. I told him I would prepare it, and bring it down for him to sign, which I did. Ithink it was two days after he had made the will. I took it down to his place, and told him I had prepared it the way he asked me, and I read it over to him, then he signed it." And again: "Q. And he wanted a deed drawn by which Mrs. Ellenberger would have a life estate in this property, and the remainder should be vested in Willie Foth; is that it? A. Yes; I told him, 'Why don't you have it specified in the deed?' 'No,' he said; 'I want it made direct to Mrs. Ellenberger, and she is going to leave it to my grandson Willie at her death, and I want the deed made so she will surely have the use of it as long as she lives.' Q. He said he wanted it so she would surely have the use of the property as long as she lived? A. Yes. Q. by the Court: You drew the deed? A. Yes. Q. The deed is in fee simple to Caroline Ellenberger,—absolute deed, is it not? That is so, is it not,—consideration $1? A. One dollar and other valuable consideration."
Now, Mr. Allen's excuse for preparing the deed as he did is that Mr. Foth so wished it. Mr. Allen was at that time engaged in procuring a divorce for Mrs. Ellenberger, and was, in a measure, her counsel. He had been admitted as solicitor only in February previous, and, without reference; to his being professionally engaged at the same time for Mrs. Ellenberger, I think if he had been a counselor of some experience, such as a person in Mr. Foth's condition and situation was entitled to, he would not have permitted Mr. Foth to make an absolute deed to Mrs. Ellenberger. He would have said: "Your rights, and the rights of your grandson, are not properly protected by giving an absolute deed to Mrs. Ellenberger, and relying upon her promise to leave it by will to your grandson." I am of the opinion that a person whose capacity to Judge of so important an affair was, to say the least, rendered doubtful by the evidence, cannot be said to have had competent counsel in a solicitor of eight months* standing, who would permit him, without serious protest, to make an absolute deed, when his intention was to give only a life estate, with the remainder to a particular person. The authorities on this subject are abundant, and collected by me in White v. White (N. J. Ch.) 45 Atl. 767, at page 771. In my judgment. Mr. Louis Foth had, in his lifetime, an equity to have the deed set aside by reason of not being in conformity with his wishes; and the case of Hall v. Otterson, 52 N. J. Eq. 522, 28 Atl. 907, is authority for the position that such right at his death descended to the complainant as his heir at law. And Mulock v. Mulock, 31 N. J. Eq. 594, is authority for the position that in such a case the deed cannot be considered as reformed for the purpose of carrying out the intention of the grantor. This right, of course, will not avail the complainant if the will shall finally be established; but, for present purposes, that instrument must be laid out of lew, since at the time of the submission of the cause to me it was subject to appeal in the orphans' court of the county of Bergen. I will advise a decree setting aside the deed, with costs.