66 N.J. Eq. 52 | New York Court of Chancery | 1904
This suit calls in question separate transactions of two kinds-between complainant and his children. The first transaction
Complainant’s first wife had died in 1876, and Mr. Queen, at the time of the interview in his office, supposed complainant was still a widower, but at the interview at his own house complainant, for the first time, informed Mr. Queen that complainant had been married again about a month before, and after inquiring as to the rights his second wife had in the property, requested that the deeds be dated back previous to the marriage. Mr. Queen declined to comply with this request. None of the children nor any other' person than complainant and Mr. Queen were present at this interview between them, which lasted about an hour, and Mr. Queen, without conversing with anyone but Mr. James, at once returned to Fleming-ton with all the papers, which were sent by him to be recorded, and he left them for record on the same evening. After being recorded, they were returned by Mr. Queen either to the complainant directly or to someone for him.
The father left the'home at High Bridge to live in Port Oram in 1881, and the daughters received the rents of the house from that time up to 1895, since which date and up to about the time of filing the bill the rents, or a portion of them, were remitted to the father. These payments of principal and interest are
Complainant was a miner, and for many years prior to 1880 he had been a mining contractor, doing work for the Thomas Iron Company, with the founders of which company he had originally been employed on coming from Wales. Besides paying for his house and lot, he had, at the time the deeds were executed, accumulated probably $3,000 or $4,000 beyond the amount invested in the mortgages in question. His first wife, the mother of his five children, had died in 1876, and he had, in April, 1880, without the knowledge of his children, married a woman named Mary Williams in Hew York and was about to bring her to his home. One of the daughters (Mrs. Aller) says that before her mother’s death she had asked her husband to make some provision for her children, and he promised to do so; but after her death and up to the time of his marriage no conversation appears to have occurred about a settlement between the fattier and the children. The execution of the transfers was solely the idea of the father, and the motive for making it at the time when it was made was manifestly his second marriage and its object was to protect his daughters against possible changes arising from this marriage. The declarations by the father to his daughters, after Mr. Queen’s visit
In' February, 1881, Jennie was married to Mr. Hoffman, and in April, 1881,- removed from High Bridge. The second wife was intemperate, and on Mrs. Hoffman leaving home complainant told her, as she says, “the box that is upstairs you take over and give it to Mrs. Aller in her charge, because all that is in that box belongs to the girls.” This box contained the deeds and assignments, besides about $1,000 in money and notes amounting to between $2,000 and $3,000, and comprised substantially the entire property of complainant. Mrs. Hoffman delivered the box to her sister, Mrs. Aller, saying to her, as Mrs. Aller says, that “father told her to, bring it over to me and to leave it there with us; that we were to take care of it, and he didn’t want to leave it with his second wife; he didn’t want her to know anything.” Shortly after, the complainant, returning home from Port Oram, came to Mrs. Aller’s, and in the presence of her father and her sister Maggie, who lived with her, the box was brought out and the contents examined. Mrs. Aller told him what was in it, and he said, “You take good care of it; that is for you girls;” not giving at that time, or until the fall of 1881, any special or further direction as to the disposition of the money. On cross-examination, speaking of the papers, Mrs. Hoffman further says that her father had told her to “take them over to Lydia’s for safe-keeping.” In August, 1881, complainant’s second wife left him, and never afterwards returned, and after she left home complainant gave
“in the fall of 1881 we had about 84,000, and he told us that was for us girls, and we should invest it and Margaret should have the incomes;, and William wasn’t to have any of it, because he didn’t know how to-use it; he was a dissipated boy; Margaret was to have the income on.*62 the four, as-long as she was home, or she seen fit to divide it; it was under her control, and. he would always say it is ours; ‘say nothing about it, it is for yon girls;’ always did, not only once, but a dozen times.”
He said she (Margaret) was to have it until she married, or when she seen lit to- divide; when she did, she could divide it. Margaret says that at the talk with her father when the box was first brought over he told 'them to collect the notes and put out the money in the spring of 1882.
“I was to have the income. It amounted to $4,000, and that was to be divided between us four children — four girls — and Willie was to have no share in it. I was to keep it until I was married, unless I saw fit to divide it before. My sister, Mrs. Aller, was to look after it; she was the oldest.”
This witness fixes the conversation about the final disposition of the money in the spring of 1881, and at the time of receiving the box, but upon this point I consider tire evidence of Mrs. Aller more reliable, corroborated, as it is, to some extent, by Mrs. Hoffman’s evidence; and as to tlie exclusion of William, I think both of the daughters are probably giving the tenor of subsequent conversations with their father, for at this time (the fall of 1881) William was a lad fifteen years of age, going to school, and could not have acquired the habits of dissipation. The date of the conversation is important, in my judgment, as throwing light on the character and circumstances of the settlement and on the reasonableness of sustaining it against the father. It comprised substantially all of his property; it was made without advice or counsel, and according to the daughters’ account no provision seems to have been made for revocation, either wholly or in part. If made subsequent to the letters of the wife, as apparently it was, it may have been, and probably was, made under the impression that it would be protected against pursuit by the second wife; and while this ■ second transfer, like the first, was not due to any influence of the daughters, but was, if made as they say, the complainant’s voluntary act, yet as it was an act done without advice of any kind,
In reference to the transfers of the homestead and of the mortgages in 1880 the children have clearly proved that these were made without any influence whatever upon their part and that they were the voluntary acts of the complainant, made under instructions to his own counsel. Complainant, at the time of their execution, was mentally competent to make them; they were his deliberate and voluntary acts, and under the circumstances the settlements were not unreasonable in -amount. Complainant at that time was in the prime of life, was steadily making and saving money, varjdng from $100 to $200 a month, sometimes as high as $300 or $500. He retained the use of the real estate for his life, if he wished. The mortgages comprised half, or perhaps rather more than half, of his personal property, but although this was a very liberal provision for his children, it cannot, as to the amount, be said to have been unreasonable. It was clearly reasonable for the complainant upon his second marriage to make some settlement upon his children by the first marriage if he wished to do so. Until the mortgages were actually delivered to Mrs. Aller in the spring of 1881, the children do not seem to have themselves received the interest on them, and it was not until complainant’s removal from the house that the daughters received the interest, applying it, as well as the rents of the house, mainly to the support of Margaret and William, who from this time were not supported by the father. The only question, as it seems to me, in reference to the settlement of 1880, is whether the transfers are invalid, because no clause of revocation was inserted in the deed or .some clause securing complainant’s support by the grantees if necessary. The mere omission of a power of revocation will not of itself invalidate a deed. Its absence or the absence of advice as to its insertion are circumstances, and circumstances merely, to be considered in connection with Hie other circumstances of the case, and if the power be omitted where the settlement would be unreasonable or improvident in the donor unless so- guarded, then the settlement will not stand unless the donor had in
The aspect of the gift of $4,000 in 1881 is very different. From the evidence of the three daughters, Mrs. Hoffman, Mrs. Aller and Margaret _ James, as to the circumstances of the original delivery to Mrs. Aller in the spring of 1881, an irrevocable gift of the notes and money at that time is not made out, and they would seem to' have been taken for safe-keeping only. The evidence of Mrs. Aller and Miss James.as to the subsequent disposition of these bjr their father, taken in connection with their subsequent dealing with these securities and the income from them, and the fact that their father never demanded the payment to himself by them of either the income or any part of the principal sum, is sufficient to establish that a verbal gift or settlement of the $4,000 fund was probably made in the fall of 1881. I think, also, that it was made without the exercise of any influence on the part of the daughters, and was made freely by the father to carry out his wishes at that time. And if the only question on this branch of the case were the voluntary and free character of the act, there might be no reason why it should not stand. But in relation to gifts made by'a parent to a child, and made solely under the influence of the confidence and trust arising from that relation, the further
The income of the fund before filing the bill cannot be recovered back. At the hearing the defendants claimed that the whole of the $4,000 fund had been divided before the filing of the bill, but no such claim was set up in the answers of Mrs. Aller and Margaret James; and, on the contrarjq the answers of these defendants, after stating that the $4,200 was received from the assignment or payment of the mortgages, March 29th, 1900, say that this money was divided among the defendants, and also “that all said moneys not divided up between the defendants are in the hands of the defendant Margaret James.” No claim is-made in their answer, which was filed on August 9th, 1902, that the $4,000 has already been divided. The answer of Mrs. Hoffman and Mrs. Corson, the other daughters,
About March 29th, 1900, the mortgages transferred in 1880, or others taken in their place, amounting to $4,200, were collected (by payment or sale) and the proceeds divided among the children, Margaret retaining William’s share. On April 30th, 1900, Mrs. Aller gave her father $1,000 by a check for that amount. This was paid out of the moneys received by Margaret and Mrs. Aller from the mortgages as their share of that fund. These sisters also say that after paying their father $1,000, they paid to the other sisters each $750 for their respective shares of the fund invested on the Aller note (being now one-fourth of $3,000 instead of $4,000), and that then Mr. Aller gave to Mrs. Aller and Margaret each a note for $2,000, the $4,000 note to Mrs. Aller being surrendered. Whether this transaction of buying out the sisters and taking up the $4,000 note took place previous to filing the bill is not clear, for the only evidence as to the time is that of Mrs. Hoffman, who says that she received money in 1902. But assuming that it did, it took place after all the sisters knew that the father had asked for the return of some of his money in Mrs. Aller’s hands, because he needed it, and after they had returned to him $1,000 of this $4,000 fund. This sum had remained invested for nearly twenty years, and mere division or attempted division of the fund among the children so soon after their father called for some of the money cannot be considered
The further objection was made that- complainant’s claim was barred by the statute of limitation. The relief sought by the bill is the enforcement of an express trust, to which the-statute is not applicable,'and the relief to which the complainant on the proofs is entitled is the setting aside of the settlement of 1881, a purely equitable remedy. Delay in cases of this character is considered, not with reference to the statute, but mainly with reference to its circumstances and effect in each case, and the enforcement of the general equitable rule in this class of cases, which requires vigilance in the prosecution of rights. Lutjen v. Lutjen, 19 Dick. Ch. Rep. 773 (Errors and Appeals, 1902); Condit v. Bigalow, 19 Dick. Ch. Rep. 504, 515 (Vice-Chancellor Emery, 1903). “Mere lapse of time is material on the question of right to relief, where tire party complaining has by his conduct done that which might he regarded as equivalent to a waiver of the remedy, or by his conduct and neglect has, though perhaps not waiving the remedy, yet put the other party in a situation in which it would not he reasonable to-place him, if the remedy were afterwards to he asserted.” Lord Blackburn, in Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221, 239 (1874); Rochefoucauld v. Boustead, L. R. 1 Ch. 196, 210 (1897). In this ease there has been neither waiver nór acquiescence, for the complainant was ignorant of his rights until 1900 or after; nor (except as to the income) has he by his conduct put the defendants in a situation where it would he unreasonable to assert his right to the balance of the principal sum delivered to Mrs. Aller in 1881.
■ I will advise a decree setting aside the gift or settlement of the $4,000 made in 1881 and directing payment to complainant of the $3,000, with interest from the date of filing the bill. At ■the time of settling the decree I will hear parties, if they desire, as to the separate liability of the defendants, and as to declaring' this amount a lien or charge upon the premises of the defendant T. Owen Aller, purchased in part by the use of the fund.