Opinion
11-16-1889
JUSTICE et al. v. JUSTICE'S EX'RS et al.
A. H. Swackhamer, for complainants. R. S. Clymer, for defendants.
On bill for accounting.
A. H. Swackhamer, for complainants. R. S. Clymer, for defendants.
BIRD, V. C. Ruth Justice is the widow of Nicholas, and Mary Justice the granddaughter. 'J hey bring their suit against the executor of Nicholas, to compel him to account for what they allege to be a portion of the personal estate of the deceased testator; and against Anna, that she may be compelled, among other things, to submit to a ratable abatement of a legacy which has been paid to her, in case the personal estate should prove insufficient to satisfy the debts of the testator, and to fully discharge the other legacies, and especially the legacy to the widow. The testator died March 23, 1887, leaving a will bearing date January 28, 1887. In and by this will he gave to the "said Ruth $200 in cash, to be paid to her as soon as can be after my decease," and certain household furniture of her choosing; and also the sum of $200 to be paid to her by his executors yearly, which $200 he imposed as a lien upon his estate, which, by the residuary clause, he gave to his son Charles W., whom he made his executor, and whom he also ordered to invest a sum of money sufficient, which at 5 per cent. should produce the said $200. He also gave to his executor $2,000, to be securely invested, and the interest thereof at 5 per cent. to be paid to his granddaughter Mary Justice. The bill shows that the executor, after making certain payments upon account of said legacies to Ruth and Mary, declines to pay further, pretending that the estate will be exhausted in the payment of debts. It also alleges that, in order to reduce the estate to this condition, the said Charles W. caused to be canceled a mortgage which he had assumed the payment of, for $9,000, without satisfaction; and claiming that he is still liable therefor; and also alleging that he pretends that a bond given by Anna Justice, a daughter of the testator, for$2,000, was receipted and discharged by the testator in his life-time, and, consequently, should not have been inventoried. The proof shows that the said $9,000 mortgage was canceled of record in November, 1886. The testator made his last will in January following.
It is urged that the mortgage was fraudulently procured to be canceled. I think there is a failure of proof on this point. There is nothing to show that there was a failure of the mental capacity of the testator at any time. Nor is there anything to show that the son Charles practiced any fraud or deception upon his father by means of which the said cancellation was procured. All that the testimony shows is that intimate and confidential relationship which ought to abound and to be encouraged between every parent and child; and, if preferences are manifested by parents in the disposition of their estates, the law has no concern therewith, unless mental incapacity be shown, or fraud or undue influence. In many such cases, besides the relation of parent and child, the child may sustain towards the parent a confidential business relation, such as agent or trustee; and when this appears, and, as such agent or trustee, he has dealt with his principal to his own profit, the law casts the burden upon him of showing that the transaction was not only free from every taint, but absolutely fair.
With these principles, which are as old as the law itself, before me, I have given the most attentive consideration to the claim of the complainants respecting the continued liability of the said Charles W. to pay the amount secured by the said $9,000 mortgage; but fail to find sufficient grounds on which to rest a decree against him, although there are some circumstances of sufficient weight to awaken inquiry. It cannot be disputed but that the father had the right to forego the amount due from his son under his assumption to pay the said mortgage, and, to show his determination, had the right to surrender the mortgage to be canceled. Having done this, the father himself was bound by the transaction, and so, necessarily, are all who claim under him.
The claim of Anna Bella Bright that the bond and mortgage given by her, and held by the testator at the time of his death, and appraised as part of his estate, should be surrendered to her without payment, does not seem to me to be well founded. Her insistment is that the testator showed his intention to surrender the bond, and to discharge her from any liability thereon, by a receipt which he had signed, and which was found among his papers after his death. The operative part of the receipt is in these words: "April 3d, 1879. I, Nicholas Justice, hereby acknowledge the receipt of two thousand dollars in full of a bond executed by Anna B. Justice to me, bearing date the twenty-fifth day of March, A. D. 1868, and made payable, within one year after my decease, to my executors, administrators, or assigns." I need not consider whether this receipt was attached to the bond or not at the time it was appraised; for that disputed point, should it be determined in favor of the defendant, could not possibly increase or diminish the legal effect to be given it, since the bond is most distinctly referred to in the receipt. In my judgment, the bond has all the vitality it could possibly have if such receipt had never been written. It was never surrendered. There is no proof of any payment or consideration of any kind; nor is there anything except the receipt itself to raise the slightest presumption that the testator ever intended to make a gift of the bond to his daughter. Whatever influences may have operated upon his mind inducing him to sign the receipt, the fact that it was drawn in April, 1879, and both it and the bond retained by him until his death, in March, 1887, are conclusive proofs that he intended to hold the said bond; and, besides, this conclusion is in accordance with the well-settled rule that no alleged gift can be sustained without proof of actual delivery.
In case of a deficiency of assets, I conclude that the legacy to the widow is entitled to priority in payment. In the case of Howard v. Francis, 30 N. J. Eq. 444, it was held that where a legacy was given in lieu of dower, and in the settlement of the estate there proved to be a deficiency of assets to pay all the legacies in full, the widow was entitled to be first paid. The will in the case before me does not declare that the legacies to the widow should be in lieu of dower; but in my judgment the unmistakable inference is, both from the language of the will and other proofs in the case, that the testator so intended. I shall advise a decree in accordance with these views.