36 N.J. Eq. 347 | N.J. | 1882
The opinion of the court was delivered by
The complainant’s counsel placed his claim for relief upon two grounds.
Second. An equitable release of them to her by the deceased during his lifetime.
The contention upon the first ground is that the delivery to Annie Jones of these mortgages, was a delivery to Mrs. Johnson with an intent to pass the property in the mortgages to the complainant. There is nothing in the case to support this contention.. How these papers came into the hands of Annie Jones is only explained by her own testimony, and it is entirely inconsistent with the view that it was a transference of the dominion over the property from the testator to Mrs. Johnson.
She says that they were given herewith instructions by the testator to give them, upon his decease, to the persons who were to> settle his business.
Outside of her testimony I find nothing which would (under the rules which guard the passage of property by gift) bring the present case into a semblance of a gift.
Nor did the vice-chancellor place the case upon that ground.
He put his conclusion entirely upon the doctrine of an equitable release. The rule adopted and which he was bound to recognize as the law, is laid down in the case of Leddel’s Exrs. v. Starr, 5 C. E. Gr. 274. Chancellor Zabriskie, in this case, announced the rule in these words: “ There is a series of decisions in courts
If we assume that the facts in this case show that Mr. Corlies, in his lifetime, announced to Mrs. Johnson that upon his death these mortgages should be hers, and to others, that he intended to make her equal with his grandchildren by giving her the mortgages, I yet think the rule which controlled the court below is one which, before adoption by this court, should be the subject of careful scrutiny.
At law it is apparent that a -parol declaration of the kind set out in this case would have no efficiency at all. A debt cannot be extinguished by a mere statement by the creditor that he does not intend to enforce it; or that he forgives it; or even by a receipt for the whole, when, in fact, a part only has been paid.
The recognition of a doctrine which permits a mortgage to be extinguished by a verbal declaration of the debtee that he did not intend to insist upon its payment, would seem to break down
“ I have Raby’s bond, which I keep. I don’t deliver it up, for I may live to want it more than he, but when I die lie shall have it. He shall not be asked for it.”
After the death of the testator Raby demanded the bond of Mary. She refused to deliver it, but said you may be easy, for it is safe in my hands.
Pie hinted that accidents or matrimony might put it out of her power to deliver it. She said if I marry I will deliver it the night before.
Afterwards Raby having acted, as Mary thought, in an unfriendly manner towards her, she put the bond in suit. A bill was exhibited in the court of chancery and the suit was restrained. There is no opinion in the case.
Before the high court of parliament, the counsel of the complainant put their case upon the doctrine that a trust was imposed on Mary, the executrix and residuary legatee, by the direction of the testator to her, and her acknowledgment thereof, and her express promise to deliver up the bond. There was no insistence that the parol declarations in themselves amounted to a discharge of the security. What the views of the court were is only inferential. Judge Story speaks of this as a case which would be clearly insupportable as a donatio mortis causa, and as carrying the doctrine of an implied trust, or equitable extinguishment of a debt to the very verge of the law. Stony’s Eq. Jur. § 706.
Mr. Pomeroy-classifies the case as one supporting the doctrine that where declarations are made under such circumstances, that the testator imposed a constructive trust upon the property given by his will, so that the beneficiary would not be equitably enti
The statement of Mr. Pomeroy is intended to include the eases in which the beneficiary by some act or word assents to the declared intention of the testator, so that thereafter it would be a fraud upon his part to refuse to carry out the testator’s design, as by his assent he has induced the testator to rely upon it rather than change his will or incorporate his intention in a future will.
Of this class is the case of Williams v. Vreeland, decided in this court and reported in 5 Stew. Eq. 734. That was the view taken by Lord Hardwicke in the ease of Byrn v. Godfrey, 4 Ves. 6. After mentioning the circumstances upon which Wekett v. Raby was decided, he says: “ From all this, the court had a fair ground to conclude the case stood exactly according to the representation of the plaintiff, and, being so, the testator, talking to a residuary legatee, and that being admitted, so that the court has sufficient evidence, the residuary legatee will not be permitted to benefit herself of that which was not given to her. It is very near an undertaking by her to do something if the will is not changed. Therefore, the silence is assent on the part of the residuary legatee, and an engagement which, in point of conscience, ought not to be broken by her.”
It is true that Lord Cottenham, in Flower v. Marten, 2 Myl. & Cr. 459, took a different view of'what was decided in the case of Wekett v. Raby. He seems not to have considered the case critically, nor to have had in mind the case of Byrn v. Godfrey. He mentioned the case of Wekett v. Raby, after he had already decided the case which he then had under consideration upon another ground, namely, that no debt had ever equitably existed.
In the subsequent case of Cross v. Sprigg, 6 Hare 552, Vice-Chancellor Wigram says the circumstances of that case (Wekett v. Raby) bring it within the principle examined by the vice-chancellor in Podmore v. Gunning, 7 Sim. 644.
The case of Podmore v. Gunning, was this:
A testator gave his real and personal property to his wife absolutely—
*354 “ Having perfect confidence she will act up to those views which I have communicated to her, in the ultimate disposal of my property after her decease.”
Two natural children of the testator, after the. death of the wife, filed a bill against the wife’s heir and administrator, alleging that the testator, at the time of making his will, desired his wife to give the whole of his property, after her death, to the plaintiffs, and that she promised and.undertook to do so.
The court held that upon proof of these facts a trust arose in favor of the plaintiff. This is the doctrine of Williams v. Vreeland, in this court, already mentioned.
In the case of Sprigg v. Cross, the vice-chancellor criticises with great care and acuteness all the preceding cases in the equity courts, and denies that voluntary declarations indicating an intention on the part of a creditor to forgive or release a debt, if there be no evidence of a release at law, constitute a release in equity.
This case was reversed, but upon a point which did not shake the force of this conclusion. The same learned vice-chancellor, four years later, had occasion, in the case of Peace v. Hains, 11 Hare 151, to reconsider the same question, and there refers with approval to his remarks in the case of Cross v. Sprigg.
In the case of Yeomans v. Williams, L. R. (1 Eq.) 184, the authority of the case of Cross v. Sprigg was recognized by Sir J. Romilly, M. R., and the casé under consideration was decided upon the ground that a father-in-law had induced his son-in-law to live in a house by saying that he should pay no rent in the form of interest upon a mortgage held by the father-in-law upon the property, and that he could not collect interest, because he had induced the son-in-law to take a certain course of conduct by his statement.
In Taylor v. Manners, L. R. (1 Ch. App.) 48, the authority of the cases of Cross v. Sprigg and Peace v. Hains is assumed by the counsel, and Lord Justice Turner says at law certainly there was no perfect gift, and a court of equity as certainly will not enforce a mere intention to give.
I find no more recent allusion to this doctrine in the English
The case of Leddel’s Exrs. v. Starr was, in my opinion, a departure from the theretofore prescribed limits of equitable interference with existing obligations. It was a departure in the direction of insecurity and uncertainty, which this court should not follow. The decree below, founded upon this rule, should be reversed.
Deeree unanimously reversed.