Waln v. Meirs
80 N.J. Eq. 488
N.J.
1912
Check Treatment

The opinion of the court was delivered by

Yoorite.es, J.

These appeals are from two decrees, dismissing two bills of complaint. One of the bills was filed by Eiehard C.’ Wain, one of the heirs-at-law of Sarah W. Hendrickson, deceased, on his own behalf, and in behalf of such other heirs-at-law of said Sarah W. Hendrickson as should come in and become parties thereto.

*500The othei bill was filed by the said Richard 0. Wain, as administrator of said Sarah W. Hendrickson, deceased. They each attack a deed dated December 22d, 1905, made by Mrs. Hendrickson to the defendant Wilson transferring both real estate and personal property, and to have this instrument set aside and declared void. The first hill by the heirs-at-law is directed against that part of the deed that, conveys a tract of land known as the Wain-ford Farm. The second bill filed by the administrator is to set aside the same deed so far as it conveys personal property. By stipulation entered into between the parties the two suits were tried together, and by consent, the testimony in the one case is to he used in the other case, subject, however, to its exclusion in the administrator’s case, if inadmissible by reason of the statute'. The facts have been carefully set out in the opinions filed by the learned vice-chancellor.

In the bill brought by the heirs-at-law to avoid the transfer of the real estate, we think the decree should be affirmed, for the reasons stated by the. vice-chancellor in his opinion.

If the learned vice-chancellor, however, meant to express it as his opinion that the defendants, Wilson and Richardson, occupied dominant, positions towards Mrs. Hendrickson, this court ^ does not wish to he understood as agreeing to that conclusion. We are of opinion that the testimony shows that the defendants have borne the burden which the. law has placed upon them as to the Lona fid,es of the transaction. But we do' not agree that Mrs. Hendrickson held a servient position as to them. Wilson was a mere servant in the family and had occupied that position for forty years, and in it had considered whatever he made the property of his mistress.

It clearly appears that the grantor had independent advice of her own choosing, and that the bargain evidenced by the deed was not only not improvident on her part, but a most favorable one for her. The testimony shows that Mrs. Hendrickson herself said it was a hard bargain for Wilson, and that he should be made fully acquainted with its nature before entering into it. He was apprised of it and acknowledged that its terms did bear heavily upon him, but that he would not think of leaving the old lady; *501but expected to take care of her in any event. This view adds strength to tire position taken for the affirmance.

In the administrator’s ease, we agree with the result reached- ■ by the learned vice-chancellor, but by a different course of reasoning.

The learned vice-chancellor, tve think, correctly ruled that the testimony of the three defendants in. this suit should be rejected, for the reason that the complainant was suing in a representative capacity.

We think it unnecessary to apply in this suit the doctrine of res judicata, if it arise from the decree in the real estate case. Although it may seem to be illogical that any different result could be reached, as to the status of the same instrument, merely by its being subjected to different suits, yet that might have been the result if there had been separate conveyances, with different evidence in each suit.

The opinion goes upon the idea that the administrator represents the next of kin, who are said to be the real parties in interest to this suit, and that the next of kin are bound by the decision in the real estate suit, in which their interest as heirs-at-law had been determined upon identically the same issue. All the cases hold that litigation invoked to this effect must have been between the identical parties or their privies in law or estate.

Bigelow Estoppel (5th ed.) 146, says:

“The relationship of privity does not exist at common law between administrator or executor, and heir or devisee, so as to make a judgment against the decedent’s representative binding upon the lands of the heir or devisee,”

and see opinion of Marshall, C. J., in Garnett v. Macon, 2 Brock, 185; 6 Call. 308, reported as No. 5245 in 10 Fed. Cas.

The vice-chancellor apparently anticipated difficulty which possibly might aris.e if the decree in favor of’ the administrator should be entered first. Tie was careful to order that the decree in the suit brought by the heirs-at-law should first be entered, and that the decree in- this suit should contain a recital of the former decree. If there be a lack of mutuality in the estoppel, the order of entry would not obviate the difficulty.

*502Though the testimony of the defendants must be rejected, yet there are other proofs ample to show that Mrs. B endrickson was, at the time, of sufficient mentality; that she had long before become estranged from her family; that she was indebted to Wilson, who held her note; that she had announced her intention to make the transfers to him, in order that she might provide for him for all his days, and her subsequent statement to another witness that she had “fixed everything over to him so that everything shall be his,” and that she had provided for her future support and maintenance with considerable forethought and prudence by the instrument sought to be .annulled.

In our view, the complainant’s evidence fails to disclose in this ease that Mrs.- Hendrickson was dominated by the defendants, and therefore Ihe burden has not shifted. The complainant thus stands upon the ground of no greater vantage than would the grantor if she were making the attack.

Under such circumstances, even if a gift, it would have been irrevocable. James v. Aller, 68 N. J. Eq. (2 Robb.) 666. A fortiori if upon sufficient consideration.

Since there is abundant evidence to justify an affirmance of the decree in the administrator’s suit, without regard to the effect of the adjudication in the other case, a point which we do not decide, we base our decree upon the force of such evidence.

The decree will be affirmed.

Ho. 54—

For affirmance—The Chief-Justice, Garrison, Swayze, Trenci-iard, Bergen, Voori-iees, Minturn, ICadiscit, Bogert, Vredgnbijrgit, Congdon, White, Treacy—13.

For reversal—Hone.

Ho. 55—

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Treacy—13.

For reversal—Hone.