Opinion
09-07-1888
DUNHAM v. EWEN et al.
M. P. Grey, for complainant. V. H. Sinnickson, for defendants.
Bill to subject property to a judgment.
M. P. Grey, for complainant. V. H. Sinnickson, for defendants.
BIRD, V. C. The mother of D. by her last will, gave the residue of her estate to her grandsons J. and W., and to their heirs and assigns forever; they to pay to their father, the said D., all the rents, issues, profits, and income during his natural life. The testatrix departed this life, and J. and W. proved the will as executors, and took upon themselves the burden of administering the same. This residue amounted to more than $5,000. An uncle of J.'s, after making his will, in and by which he gave to J. $2,000, also departed this life, and his will was admitted to probate. J. was then taken sick, and, as he knew, beyond the hope of recovery; but while he yet had his understanding he executed a written instrument in and by which, among other things, he said: "1 have, and by these presents do, give, grant, deliver, and sell unto the said 'W.,' his executors, administrators, and assigns, all my right, title, and interest in any and all of the properties, real, personal, or moneys, which 1 now have or may come in possession of hereafter, to have and to hold the same to his and their own proper use and benefit forever." There is no dispute but that this paper was intended for W., nor that it was delivered to him. Nor is there any dispute but that J. intended thereby to give all of his estate to W. Some doubt was raised as to whether it had so broad an effect or not, but it seems to me that no room is left for discussion on that head. J. died in a few days. After the death of J., W. demanded the legacy which the uncle had given to J., but the executor refused to pay to him unless he would take out letters of administration upon the estate of his brother J.; and this he insisted upon, notwithstanding W. referred him to the title by which he made his claim, although he did not show the written instrument. W. proceeded to take out letters of administration on his brother's estate, and filed an inventory, in which he included the said legacy of $2,000, and the wearing apparel, but nothing else, though he (J.) had a large interest in the said estate of his grandmother, at the time he made said gift to his brother, which he had in no otherwise disposed of at the time of his death. So far, then, as the public records gave information, the fair inference was that J. had not only died intestate, but that he was possessed of some estate at the time of his death. And this complainant thought so, and, having a judgment against D., the father of J., who died childless, never having been married, files his bill charging that all of the estate of the said J., including both the legacy from his uncle and the legacy from his grandmother, is liable in equity to his judgment, since D. is the father of J., and consequently the next of kin. He asks that W. may be required to account, and be directed to pay his judgment out of any balance after the ordinary expenses of administration are paid. W. sets up the said written instrument, and claims that he is entitled to all of his brother J.'s estate by virtue thereof. To this the complainant replies that whatever may have been the rights ofthe defendant, W., prior to his accepting the letters of administration and filing said inventory, he is now bound by those acts, and the complainant, having acted on them, the defendant is now estopped from saying that his rights are in truth different from what the record represents.
No case has been presented by the counsel for the complainant which goes so far as to embrace or sustain this deduction. There was no intention to deceive or mislead. The steps taken by W. were so taken solely with reference to his own rights and interests. He did not intend to confer a favor on the fund in hand, or to come to hand, or any one else. A fair consideration of the case will show that the complaint should be dismissed. "Nobody ought to be estopped from averring the truth or asserting a just demand, unless, by his acts or words or neglect, his now averring the truth or asserting the demands would work some wrong to some other person, who has been induced to do something, or to abstain from doing something, by reason of what he has said or done or omitted to say or do." Ex parte Adamson, 8 Ch. Div. 817. Here the case is stated as fairly for the complainant as possible, and yet 1 can see nothing in all that the complainant has done to bring him within this case. All he has done is to institute a suit and press it to a final hearing. He commenced his suit without an inquiry of W., the administrator. He has not altered his position. His judgment is in no more peril than before. He has incurred additional costs. These he took the risk of, as does every other suitor when he proceeds without notice or demand. He took every risk of bona fide assignments, or other liens, prior to any that he might hope to establish. I think the language above quoted is in accordance with the decisions in our own state. Kuhl v. Mayor, 23 N. J. Eq. 84, and the cases there referred to; Insurance Co. v. Norris, 31 N. J. Eq. 583. But the case shows that W. was mistaken as to his rights. He was under no obligations to take out letters of administration on the estate of his brother. By virtue of the above-named gift W. stood in the shoes of J., and had all the rights of J Such mistakes will not avail by way of estoppel, when no more injury has happened than the costs of filing a bill. Plevin v. Brown, 7 Adol. & E. 447; Cornish v. Searell, 8 Barn. & C. 471; Rogers v. Pitcher, 6 Taunt. 202. One inquiry more. Taking it for granted that W. had a perfect title under the assignment from J., then could D., the father and the judgment debtor, successfully claim this estate as the next of kin of J., and in the face of this assignment to W. on the ground that W. was estopped from claiming it because he had administered and had filed an inventory? It seems to me that such a claim would not be sustained in any court; certainly not until the father had first shown a demand or a citation of the administrator to a settlement in the orphans' court. It seems to me that the very best that a court of equity can do in such case is to dismiss the bill without costs. I will so advise.