Opinion
09-28-1904
BRADY v. BRADY et al.
Weller & Lichtenstein, for cross-complainant, executor of Mary A. Brady. Mr. Walscheid, for defendant Lawrence Brady.
Suit by Peter Brady against Lawrence Brady and others. Heard on bill, answer, cross-bill, replication, and proofs. Decree ordered.
Weller & Lichtenstein, for cross-complainant, executor of Mary A. Brady.
Mr. Walscheid, for defendant Lawrence Brady.
EMERY, V. C. This is a bill for partition, originally filed by a brother and one of the heirs at law of Thomas Brady, deceased, against the widow and a brother of the deceased. Thomas Brady died seised of a lot of land in the town of Union, 25 feet by 100, upon which a house was erected. The lot was conveyed to him for $500 on April 10, 1885, the year following his marriage to his wife, Mary Ann Brady, and at the time of the purchase had on it a building used as a stable only. This was taken down and a house erected on the lot, in the fall of the year 1885, at a cost of $3,964. The money to build the house was advanced by Mrs. Brady, who had received it from her father's estate. Thomas Brady was then, and continued to his death to be, a stableman or driver working for wages of $9 to $10 a week, and had had little or no other property than the lot. The husband and wife lived together in the property until the husband's death, in April, 1893, and his wife continued to occupy it after his death. The husband died intestate, and there were no children. In November, 1893, Peter Brady, a brother of Thomas Brady, filed a bill of partition against the widow and against Lawrence Brady, a brother living in Ireland. The widow filed an answer and cross-bill setting up her advances for the building of the house on the lot, and that, under an agreement between herself and her husband, she was to have the use and occupancy of the premises as long as she lived. The cross-bill prayed a decree that the premises be held in trust for her during her life, or that her advances for the erection of the building, and other payments for the benefit of the lands of her husband's estate, be declared a lien on the lands. The case was brought to hearing before me on the bill and cross-bill in November, 1896. The evidence of Mary Ann Brady and of other witnesses was taken, and at the time of the hearing my opinion on the effect of the evidence was orally given, but not taken down or written out. As Law rence Brady, an heir at law, had not been brought into court on either the bill or crossbill, no decree was made, and the cause was directed to stand over to bring in the necessary parties. Mary Ann Brady was still occupying the property and paying taxes and assessments, and continued to occupy it until her death in November, 1898. No further proceedings were taken in the cause until November, 1901, when the suit was revived on the application of the executor of Mary Ann Brady. Lawrence Brady, the only other heir at law of Thomas Brady, appears in the suit and answers the crossbill, and the cause is now by consent brought to hearing upon the proofs taken at the original hearing, including the evidence of Mary Ann Brady.
There is no doubt, on the evidence, that the house in question was built and paid for by the wife, and the substantial question arising upon the proofs and argued at the hearing is whether the advances of the wife's money were intended as a gift to the husband. The express agreement set up by the wife's answer and cross-bill, that she was to have the premises for her life in case she survived her husband, is not proved, and the cross-complainant asks the alternative relief prayed in the cross-bill, viz., the establishment of a lien on the lands for the amount of the advances. Where a husband receives from his wife principal money, belonging to her separate estate, for the purpose of improving his own lands, or other purposes legally beneficial to him alone, the presumption, at least in a court of equity, now is that the advance was a loan for which he is bound in equity to account, and the burden is upon the husband to establish that the money was received or advanced as a gift to him. Adone v. Spencer (Err. & App. 1901) 49 Atl. 10, 14, 62 N. J. Eq. 782, 791, 56 L. R. A. 817, 90 Am. St. Rep. 484. In determining this question of the intention of the wife to make a gift to the husband of a portion of her principal estate, each case depends upon its own facts, and in some cases, as in this one, the advantage to the husband and the disadvantage to the wife may be so great, if the transaction be claimed to be a gift, that a court of equity should enforce the principles applicable to confidential relations, and, in order to establish the gift as valid, should require the husband or his representatives to show that the wife was advised, either by counsel or otherwise, of her rights before making the gift, and that with full knowledge of the situation she made the advances for the purpose of improving her husband's property, as absolute gifts. In this case it has not been shown that the advances were gifts, or that the wife understood that the money was given absolutely to the husband. Her statement, which is the only direct evidence relating to the transaction, shows that she advanced the money supposing her husbandand herself would both have the benefit of the expenditure by having a house to live in and in part rent. So far as the proof goes, no special intention beyond this existed at the time of the advances, and no question as to their respective rights in the property arose until the husband died. Both husband and wife seem to have acted without any counsel or advice as to their rights or obligations, and, in the absence of evidence showing satisfactorily that some other agreement was fairly made, the rule established by our court, that the contract of loan is presumed to have been made, will be applied, and this contract will not be superseded by one creating other rights. The present statements of the wife that she don't think she would expect money back from her husband, that she don't care who has it when she dies, and that she did not want any money from her husband, is very strongly relied on as evidence that the advance was originally a gift, and not a loan, but it cannot fairly be construed to have that effect against her. Her original right to an account from her husband or his representatives for her principal estate received by the husband is not to be destroyed or released by vague admissions now made as to what she thinks would have been her claim or demand upon her husband in his lifetime. During their lives both continued to enjoy the property without any question of the return of the money or of their mutual rights, and the legal status of the wife in relation to the advances probably never occurred to either of them. The evidence of a gift to the husband is, as it seems to me, so uncertain and vague that there can be no safe basis for withdrawing the case from the operation of the general equitable rule that an advance by way of loan was intended. In the case of Black v. Black, 30 N. J. Eq. 215, the circumstances and situation of the parties at the time of the advances by the wife for the improvement of her husband's property were altogether different from the present, and, the case being decided on the bearing of all its facts, cannot be treated as a legal precedent controlling the decision of this case upon the facts here proved.
The amount advanced by the wife being a loan to the husband for the purpose of improving his lands, I think a lien upon the lands for the advance should be declared. The funds were expended for this purpose, and under the circumstances of this case it was the duty of the husband to have protected the wife, in the expenditure of her funds on bis property, by the execution of securities for that purpose. No rights of creditors or others now intervene, and, as against volunteers claiming under the husband, there is no reason in my judgment why the funds should not be followed as a trust fund and a lien upon the lands for the money advanced be declared, and I will so advise.
At the last hearing before me an application was made to amend the cross-bill for the purpose of adding an express allegation that the money advanced by her became a debt due from her husband and a lien on the premises. This application was allowed at the hearing, it being considered as made to meet the issues arising upon all the proofs, and as being not only within the alternative prayer for relief, but also as within the scope of the prayer for general relief. The amendment should be formally made before the decree is advised.