24 N.J. Eq. 585 | N.J. | 1874
The opinion of the court was delivered by
Peter H. Ackerman, the father of Gilbert, the complainant, died Juno 2d, 1869, having loft a will, dated December 22d, 1866, by which he bequeathed to his widow $10,000, besides some household and kitchen furniture, the same being in lieu of dower. He also empowered his executors to sell all his real estate in Saddle River township, Bergen county, and to divide the proceeds, together with the residue of his personal estate, into five equal parts, giving one share to each of his surviving children, viz.: Gilbert and three daughters, and the remaining share to the children of his deceased son, John Henry. Gilbert filed his hill to set aside the devise of the farm in question, being the homestead, on the ground that the same was in fraud of an alleged contract between himself and his father, by which the farm was to be devised
Gilbert reached his majority in 1855, and then married. After that he continued to live upon the farm, working it on shares, until the spring of 1857, when a different arrangement was made, which arrangement, it is claimed, was a contract by which Gilbert was eventually to become-owner of the farm. It is unnecessary to repeat the alleged contract set out in the bill, as it appears in the Vice-Chancellor’s opinion. The facts fail to show anything but a voluntary arrangement on the part of the father for the benefit of the son, without the mutuality or binding force of a contract for the conveyance or devise of the farm. The father and mother lived in one part of the house, the son in the other. The son cultivated the farm for his own benefit, at the very inadequate rent of $100 a year and taxes, besides allowing his father to have one-half of the chickens, and feed for his horse, which horse the son was to have some use of for the feed. The father, no doubt, intended, when this arrangement was made, and up to the death of his son, John Henry, to devise the farm to Gilbert, for he had made two- or three wills to that effect. He had also provided, in the same way, for John Henry, who occupied an adjoining farm of the father, but which farm the father sold after that son’s death. It is quite evident, too, that Gilbert believed the homestead would be devised to him by his father, and under such belief, he made some improvements, different from what would be expected from an ordinary tenant. The complainant’s evidence chiefly consists of loose conversations had by different persons with the testator, and also of the character of the improvements made upon the farm ; all of which evidence is entirely consistent with a purpose, at one time, on the part of the father, to devise the farm to Gilbert, and Gilbert’s expectation that he would, and with a purpose of the father, after Gilbert’s marriage, and while the father lived, to give Gilbert the benefit of the farm, at an inconsiderable rent, and, as said by the widow, for him to make all he
The Vice-Chancellor properly decided that there was no contract entered into which could be enforced, and that is the clear result of the evidence.
The decree, under the state of the pleadings and the peculiar facts of the case, provides for compensation for certain improvements, and that part is unappealed from. All equities of the complainant in that respect, will probably, therefore, be protected. The decree must be affirmed, with costs.
For affirmance — The Chancellor, Beasley, C. J., Bedle, Dalrimple, Depue, Green, Lilly, Scudder, Van Syckel, Woodhull. 10.
For reversal — None.