41 N.J. Eq. 215 | New York Court of Chancery | 1886
The demurrer filed in this case presents two questions for decision : first, whether, taking all the averments of the bill, which are alleged with that degree of certainty and directness which the rules of pleading require, to be true, the bill exhibits a ease which entitles the complainant to relief; and second, whether, if the bill is sufficient, the suit is not so defective for the want of necessary parties that no relief can be given to the complainant on the present record. The ground on which the complainant’s right to relief rests, as I' understand his case, is that he has acquired, by an assignment which is valid in equity, a title or right to certain funds in the hands of the defendants, which they refuse to pay to him. And this suit is brought to enforce that right.
The complainant traces his right to what he claims through Samuel S. Brokaw. He is the origin or source of whatever right the complainant possesses. Samuel S. Brokaw was the father of •Garret G. Brokaw. By the will of Garret G. Brokaw, which was admitted to probate on the 6th of March, 1877, his executors were ordered to sell all his real estate and divide the proceeds into two equal parts. One part was given to his wife absolutely. With regard to the other part, the will directs as follows:
“And the other equal one-half thereof I give and bequeath lo my executors, in trust, safely to invest the same, and pay to my father,/ from time to g*217 ■time, whenever he shall desire the same and ask for it, so much of the interest, ■and also so much of the principal, as he, in his uncontrolled judgment, shall require for his own comfortable support and maintenance so long as he shall live;, and in case my father’s mental faculties shall become impaired, so that he shall be unable to appropriate and use the money as herein provided, then and in that ease, I direct my executors to use and expend so much of said money, principal and interest, as shall be needful and proper for his support so long as he shall live. So much of the money thus set apart for the needs of my father, as shall remain after his death, if any, I give and bequeath to all the children of my deceased brothers, Isaac Brokaw and John Brokaw, who shall be living at the time of the death of my father, share and share alike, to be equally divided to and among them per capita.”
The complainant was the nephew of Samuel S. Brokaw. The complainant, by his bill, says that Samuel S. Brokaw, in the early part of 1881, made complaint to him that he was not receiving from the executors of Garret G. Brokaw, deceased, such support, maintenance and attention as he was entitled to ■under his son’s will, and that thereupon a contract was made between Samuel S. Brokaw and himself as follows: he promised Samuel S. Brokaw he would visit him from time to time to look after his condition and comfort, and' see that he was provided for .and attended to according to the requirement of the will, and that Samuel S. Brokaw promised him (the complainant) that he would require the defendants, as the executors of his son, to ■compensate the complainant for his time and services, and such ■expenditures as he might be required to make. The bill then says that Samuel S. Brokaw, in order to provide compensation to the complainant out of the estate of Garret G. Brokaw, ■deceased, for the complainant’s time and attention already bestowed, and to be thereafter bestowed, in looking after his comfort and welfare, and to re-imburse the complainant for such small expenditures as he might be required to make, and which, to ■some extent, he had already made, drew an order on one of the defendants in the following words :
“ To Archibald C. Mollison, Esq., one of the executors of Garret G. Broikaw, deceased : Pay the sum of $486 to the order of Lewis I). Brokaw from the proceeds of the sale of real estate of Garret G. Brokaw, said money being) in my judgment, necessary for my support and maintenance.
“ Bound Brook, N. J., February 26th, 1881. Samuel S. Bbokaw.”
The form of the instrument which the complainant claims-effected a transfer of this fund is unquestionably sufficient to constitute a good assignment in equity. Courts of equity, in such matters, pay very little attention to form, their great desire being to give effect to the intention of the parties, and, if that can be clearly discerned, they carry it into effect regardless of the method by which it is expressed. Any order, writing or act which clearly indicates that the assignor intended to make over a fund belonging to him, amounts in equity to an assignment of the fund. Shannon v. Hoboken, 10 Stew. Eq. 123; S. C. on appeal, 10 Stew. Eq. 318. But the question here is, "Hoes the bill show that the assignor had anything to assign? The legal title to the fund in controversy was vested in the executors. The will, by plain words, gives the fund to them, with direction to invest, and to pay, from time to time, to the testator’s father,, so much of both principal and interest as he, in the exercise of an uncontrolled judgment, shall require for his own comfortable support and maintenance. The court, endeavoring to ascertain the meaning of the testator in respect to this fund, must consider each sentence of that paragraph of his will, which is above quoted at length, and then should adopt that construction which will give full effect to each of its provisions. The direction to invest the fund, and to pay, not at once, but from time to time, and not
How, it may be that, if it had appeared that the father had made a requisition upon the executors for a reasonable sum, •which they refused to pay, and that his situation was such, at
But again. This order is worthless in the hands of the com
The order under consideration had the support of a very trifling consideration, if any whatever existed, at the time it was issued. The bill says that the order was drawn to compensate the complainant for his time and attention already bestowed, and to be bestowed, in looking after the comfort and welfare of Samuel S. Brokaw during the remainder of his life, and also to re-imburse him for such small expenditures as he might be required from time to time to make, and for such as he had, to some extent, already made. But what time and attention he had already bestowed, whether it covered a period of ten minutes or ten days, and what expenditure he had already made, whether it was ten cents or $10, the bill does not state. And the statement of the bill respecting the consideration given subsequent to the issue of the order is equally obscure and indefinite. It says that from the date of the order down to the-death of Samuel S. Brokaw, the complainant continued to visit Samuel S. Brokaw, to see to it that he was comfortably and suitably cared for, and to attend to his wants from time to time.. But how much time was thus occupied ? How many visits did he make ? What did he do ? What would be a reasonable compensation for the services he rendered ? How much money did
My conclusion is that the bill, as at present framed, does not exhibit a case which entitles the complainant to a decree. And I think it may well be doubted whether it is possible to state a case on the foundation of the present bill which will entitle the complainant to relief. The principal service which, according to the contract, the complainant was to render to Samuel S. Brokaw, and in consequence of the rendition of which he was to be entitled to compensation, was to procure for Samuel S. Brokaw such support and attention as he was entitled to under the will of Garret G. Brokaw. His bill states what he was to do under the contract, as follows: he was to visit Samuel S. Brokaw from time to time to see that he was provided for and attended to according to the requirements of the will. How, Samuel S. Brokaw’s rights under the will were plainly marked out and definitely fixed. He needed no assistance to obtain them. The amount to be paid him from time to time was to be regulated by his own judgment, and all that it was necessary for him to do to get wdiat he was entitled to was to form a judgment, notify the executors and ask them to pay. So long as he was competent to appropriate and use the money set apart for his needs, the only duties incumbent on the executors were to keep the fund invested and pay the father, from time to time, so much thereof as he required for his own support. They were not required to provide for him nor to attend to him. After investing the fund, their whole duty was done when they, on his demand, gave him what he needed for his own support for the time being. He needed no help to form a judgment as to what he needed, nor to make a de
The suit is defective as to parties. By the will, so much of «the fund in question as should, on the death of Samuel S. Brokaw, remain unexpended, is given to such of the children of the testator’s brothers Isaac and John as should be living at the time of the death of Samuel S. Brokaw. Three such persons, the demurrer shows, were living at the time of the death of Samuel S. Brokaw. They are not parties to this suit. They have a direct interest in the question presented by the complainant’s bill; indeed, they are the only persons whose interests stand directly opposed to the right set up by the complainant. If he succeeds, they lose; if he fails, they gain. All the authorities make cestuis que trust thus situated necessary parties. Stillwell v. McNeely, 1 Gr. Ch. 305; Van Doren v. Robinson, 1 C. E. Gr. 256; Cool’s Exrs. v. Higgins, 10 C. E. Gr. 117; Tyson v. Applegate, 13 Stew. Eq. 305. In the case last cited, Mr. Justice Magie, speaking for the court of errors and appeals, states the general rule as follows : “ In contests respecting property held in trust the cestuis que trust are necessary parties.”
The demurrer must be sustained.