Opinion
03-31-1896
COCHRANE v. McENTEE.
John Meeker, for complainant. W. J. Kearns and Mr. McGown, for defendant.
Suit by Anna E. Cochrane against Teresa A. McEntee to establish a charge on certain real estate and for other relief. Bill dismissed.
John Meeker, for complainant.
W. J. Kearns and Mr. McGown, for defendant.
EMERY, V. C. The complainant in this case is one of the three children and heirs at law of Mary McEntee, who died on March 12, 1895, being then about 76 years of age. Mary McEntee was the widow of Michael McEntee, who died in 1888, and since the death of her husband her other children—a daughter, Teresa, the defendant, and a son Michael—had lived with her at the homestead at South Orange. The title to this homestead property had been in Mrs. McEntee from the time of its original purchase, in 1884, up to a short time before her death. By deed dated February 23, 1895, acknowledged on that day, but not recorded until March 13, 1895, the day after the death of Mrs. McEntee, this property was conveyed in fee to the daughter Teresa. Another tract of land in South Orange, to which Mrs. McEntee also had title, was conveyed to Teresa by deed dated and acknowledged on February 27, 1895, and also recorded at the same time with the other deed. Previous to June 20, 1891, Mrs. McEntee also owned a tract of land in Monmouth county, for which an exchange was then made by Mrs. McEntee with Mrs. Clarissa Corwin for a house and lot owned by the latter in Newark. Upon the exchange the deed for the Newark property was made to Teresa A. McEntee, the daughter. The bill alleges that these deeds were all obtained by fraud and undue influence on the part of Teresa, and prays that they may be set aside against the complainant, as the heir at law of Mary McEntee. The complainant also claims that she is a creditor of Michael McEntee for moneys advanced to him during his lifetime, and that these lands in the hands of Mary McEntee were subject to their payment, and should be charged with the payment of them in the hands of Teresa. So far as relates to the validity of the deed, I am satisfied from a consideration of all the evidence in the case that the complainant has failed to establish any case of fraud or undue influence as to any of the deeds; and the evidence shows, in my judgment, that the deeds were made by Mrs. McEntee to carry out her own settled intention as to the disposition of the property, and without any undue influence on the part of Teresa. As to the Corwin property, conveyed four years before her death, the evidence of Mr. Corwin and Mr. Hand, who were connected with the transaction, confirms Teresa's statement, and shows that the daughter Teresa was made the grantee of this land by the express direction and choice of the mother, without any solicitation on the daughter's part. As to the conveyances of the homestead property and the other lots, executed in February, the complainant's charge of fraud or undue influence also fails. The evidence of several witnesses who testify to conversations with the mother, when the daughter was not present, and when the mother's mental condition was undoubtedly good, shows that for a long time previous to her death the mother intended that Teresa should ultimately have the property; and the evidence of Mr. Kearns, who actually drew the deeds and took their acknowledgment, corroborated as it is by the evidence of Dr. Knowles, who was present at the time of the actual execution of the first deed, sufficiently establishes the mental competency of Mrs. McEntee at the time of the execution, and that the deeds were executed at Mrs. McEntee's direction, and for the purpose of carrying out her settled intention. There is no evidence which would justify me in finding that these deeds were the product of the will of the daughter, rather than the deliberate choice and act of the mother. The testimony of Dr. Elliot, whosaw the mother about the time in question, was strongly relied on by complainant as establishing mental incompetency, but his opinion is very guarded on this point, and does not overcome the positive evidence above referred to. So far, therefore, as the bill seeks to set aside the deeds as obtained by fraud or undue influence, the bill cannot be sustained.
In the other aspect of the bill and of the case as presented at the hearing on this evidence, complainant claims that, as a creditor of her deceased father, Michael McEntee, she is entitled, either to have her claim against him charged on the lands, or to have an equal third interest in the lands conveyed to her. Her claim is that between 1858 and 1863, while living at home, she advanced at different times money to her father for the support of the family, from her earnings as school teacher, to the amount in all of about $3,500. The complainant, from 1858 to 1861, was a minor, but she states that on each of the advances of money to her father he promised that the money would be returned. If the complainant's claim as a creditor is based simply on her right to a repayment of a debt due for money loaned to her father, it is clear that there can be no right to charge lands with their payment in this suit for several obvious reasons. In the first place, on such claim the complainant is simply a creditor at large, without lien on the lands, whose claim must be presented to the executor or administrator, and its validity admitted by or established by judgment against the executor or administrator. Mayor, etc., v. Alyea (Err. & App.; June, 1896) 34 Atl. 1078. No one is party to this suit as personal representative of Michael McEntee, whose wife, Mrs. McEntee, was the executor of his will, and on his death assumed the administration of his estate. As a simple debt, also, the claim is evidently barred by laches and the statute of limitations. In avoidance of these objections the complainant claims that the agreement made by Michael McEntee with her on these advances was that these moneys would be reimbursed at his death and the death of his wife, and that he would leave her an equal share with his other children of his property and estate, and that the advances were made on this assurance. Before his death, as complainant swears, her father told her that be had left everything to her mother in trust for the children, and that after her death everything would go to the children equally. Complainant also says that her mother beard these promises of her father as to disposing of his property equally, and two days after the father's death told complainant that her father had left everything to her for the benefit of his children, to be divided share and share alike when she was through with it; and also said that she would do the best she could with it, and when she was through with it she would give it, share and share alike, between all the children. The will of Michael McEntee, which was executed in 1860, and was put in evidence, did substantially dispose of his property in this manner; but the lands in question belonged not to Michael McEntee, but to his wife, and were, therefore, not subject to the will. Mrs. McEntee had originally derived them by gift from her husband, but, notwithstanding this, the lands belonged to her. These promises of the father and mother relied on by complainant were verbal only, and in the will of the father, which was made two years after the commencement of the advances by complainant to him, he makes no reference to the complainant as entitled to any reimbursement. Under these circumstances the statements of complainant, made after the death of both father and mother, as to the agreement, even if admissible evidence, would not, under the usual rule of a court of equity, be sufficient, without corroboration, to fasten an obligation upon the estates of either of them. 4 Jac. Fish. Dig. "Evidence," 5104, citing cases. But, taking the evidence of complainant as sufficient proof, and as true, it is manifest that the case comes within the scope of the statute of frauds, and that neither in the hands of the mother nor of her grantee can the lands be liable to the demand of the complainant, either by way of specific performance of a contract or by charge of the debt upon the lands by way of trust. The promise by the mother, either individually or as executor of her husband, to pay the husband's debt out of her own estate, is invalid, under the statute of frauds, unless evidenced by writing. The debt was solely the father's debt, and there was no consideration for the subsequent promise of the mother in reference to the inheritance of the mother's own real estate. The parol promise of the mother, if it be taken as extending to a disposition of her own property after her death, evidently is not one for specific performance. The consideration on the part of the plaintiff, according to her own account, was simply the advance of money, and it is familiar law that the mere payment of money on one side as part of the consideration is not such a part performance of a parol contract to convey lands as will entitle a court of equity to decree specific performance. Pom. Spec. Perf. Cont. §§ 102, 103; Campbell v. Campbell, 11 N. J. Eq. 208, 270. And the case does not come within the principle of Kastell v. Hillman, 53 N. J. Eq. 49, 30 Atl. 535, and other cases cited, where specific performance has been enforced of contracts to devise or convey lands made in consideration of services or other acts or benefits rendered directly to the promisor, and which could not be measured by a pecuniary standard. Pom. Eq. Jur. § 114. Even taking the complainant's own statement as sufficientproof of the circumstances of the original receipt of the money by the father, it seems to me clear that she has no right, by reason of the advances, to the conveyance of any interest in the lands, or to have the debt, or any portion of it, charged on the land. The defendant, denying the agreement alleged by complainant, claims to have established that the father, subsequent to these alleged advances by complainant, assisted her and supported her, with her family, during her husband's absence, to an extent sufficient to pay any obligation for money borrowed by him. But, without disposing of this issue, and taking the complainant's case on this part as presented by her own evidence, I reach the conclusion that on the claim to be a creditor of her father she has shown no case for relief in this court in reference to the lands in question.
The bill also seeks a division of the personal estate belonging to the mother, but on this branch of the case no right to relief is made out by the complainant, and the bill is therefore dismissed, with costs.