Opinion
09-18-1906
FENNIMORE et al. v. WAGNER et al.
Frederick A. Rex and Archer F. Morse, for complainants. Joseph Kaighn and Samuel A. Richards, for defendants.
Suit by Ellen M. Fennimore and another against Ida E. Wagner and another. Heard on bill of complaint, plea, and proofs. Decree for complainants.
Frederick A. Rex and Archer F. Morse, for complainants. Joseph Kaighn and Samuel A. Richards, for defendants.
BERGEN, V. C. The bill of complaint in this cause charges that Elizabeth Walsh, having made her last will and testament dated February 25, 1904, departed this life December 25th, following; that she devised her personal estate to the complainants and defendants, her children, and to a grandchild, who was not a party to this cause, in equal shares; that the defendants were appointed executrices of the will, have probated the same, and accepted their appointments; that about the date of the execution of the will, whether before or after docs not appear, the defendant Ida E. Wagner induced the testatrix to come and live with her, where she remained until her death; that having thus obtained the custody and physical control of the testatrix, who was then 77 years of age and "in enfeebled and weakened mental and physical condition and wholly incapable of resisting the persuasions and entreaties of her daughter, the said Ida E. Wagner fraudulently induced and unduly influenced her, the said Elizabeth Walsh, on or about the 1st day of April, A. D. 1904, to assign and transfer unto her, the said Ida E. Wagner, without any consideration therefor," bonds and mortgages, stock in an insurance company, and other personal property of the value of about $8,000; that the result of these transfers, If sustained, is to exhaust the personal estate and deprive the complainants, and other beneficiaries under the will, of the whole of their legacies; that the defendant Ida E. Wagner has reduced some of these securities to cash and refuses to account for any of them or their proceeds, and the prayer is that the pretended transfers of the securities she yet holds be set aside, and that they, together with the proceeds of those that had been sold, as well as other personal property transferred to her, as set out in the bill ofcomplaint, by the testatrix, be declared to be the property and estate of the testatrix at the time of her death, to be accounted for and administered as her estate by the defendants. The defendant Clara J. Chadwick, one of the executors, has not appeared in this cause, and a decree pro confesso has been taken against her. The defendant Ida E. Wagner, to whom all of this property was transferred in utter disregard of its disposition by the will, has not answered, but filed a plea on which the complainants have joined issue by general replication. The pertinent part of the plea is in the following words: "For a plea to the whole of said bill says that for the assignments and transfer by Elizabeth Walsh to this defendant of the bonds and mortgages, shares of stock, and other personal property in the bill mentioned, good and valuable consideration passed from this defendant to the said Elizabeth Walsh." The defendant by her plea presents but a single Issue, and, constructively admitting the charges of undue influence and fraudulent inducements charged in the bill, relies alone upon the assertion in the plea that, for the property so transferred, good and valuable considerations passed from her to the assignor.
At the trial of the issue so presented the defendant assumed the burden of sustaining her plea. But two witnesses were called on her behalf, one was the solicitor of record in this cause and the other her husband. The solicitor testified that upon a visit to the testatrix with regard to some other matter she consulted him with reference to the assignment of the disputed property. What the witness testified to is covered by the following questions and answers: "Q. While engaged in that, did she consult you about the mortgages mentioned in the bill of complaint? A. She said she had some things she wanted to turn over to her daughter, Mrs. Wagner, and I ask her what they were, and she said they were some mortgages, and she also said something about some Camden Fire Insurance stock, I believe, and I told her as to the stock I could not take care of that, the Camden Fire Insurance stock would take care of that direct, but the mortgages I would draw the assignments for when she was ready if she would send them up. Q. Did she say any thing about what the consideration was, or why she was doing this? A. She told me that—I ask her about that—she told me that she had a good home there and that she intended to stay there the rest of her days, and that she wanted to turn these over to Mrs. Wagner on that account." He further testified that some time after this conversation the mortgages were brought to his office, where the assignments were prepared according to his instructions, but the execution acknowledged before another person. It does not appear that the solicitor ever saw the testatrix after the assignments were sent to her, nor is there the slighest evidence in the cause that they were ever delivered by the testatrix to Mrs. Wagner. The husband testified that Elizabeth Walsh came to live in his family in February, 1904, and remained there until her death; that she did not pay any board or do any housework; that she required special attention after she was taken sick, but that she had an attendant by the name of Mrs. Wood. While this witness testified at first that his wife paid the bills for the nurse, medicine, doctor, and whatever was required, he qualified this on cross-examination by saying that Mrs. Walsh always had money, and that when the bills came in his wife would present them to her mother and get the money. On this evidence I find that the defendant has not supported her plea that this $8,000 of property was transferred to her by the testatrix for a good and valuable consideration.
It distinctly appears in the evidence that, so far as these witnesses know, there was no agreement between the parties that Mrs. Wagner should keep her mother during her life, and, so far as the case shows, Mrs. Wagner could have turned off her mother the next day after the transfers were made. The intimation by the husband that the mother required special services was plainly introduced to bolster up a pretended consideration. The relation between these parties was that of mother and daughter, and, in the absence of any express promise to pay, she could not recover upon any implied promise, nor is there any proof that she rendered any special services such as would justify the transfer of this large amount of property, for it appears that during her illness when she required special attention, such attentions were rendered and performed by a person employed for that purpose, and, in the absence of all proof on the subject, the presumption is that such services were paid for by the testatrix. Mrs. Walsh was 77 years of age, and to support such a transfer of all of her available estate to one daughter with whom she was living, justifies the presumption that she was dominated by the will of that daughter to make an unconscionable bargain, if any such bargain were made, because it must be borne in mind that this defendant does not pretend that it was a gift, but rests her claim entirely upon a good and valuable consideration. The daughter to whom these transfers were made was not offered as a witness, nor any explanation made as to when these transfers came to her hands. Without delivery they would have passed no title for their execution alone if retained by the testatrix, would not result in a transfer of the property, and it may be that these papers came to the defendant after the death of her mother, and by some act of her own. It has been held by this court that if the defendant fails in proving the truth of this plea upon the hearing, the plea must be overruled as false, and the complainant entitled to a decree according to the case stated by the bill. Miller v. U. S. Casualty Co., 61N. J. Eq. 110-115, 47 Atl. 509; Hunt v. West Jersey Traction Co., 62 N. J. Eq. 225-229, 49 Atl. 434.
The defendant having failed to sustain her plea, it will be overruled, and a decree advised setting aside the assignments and transfers of the property described in the bill of complaint and the same decreed to be held by the defendants as a part of the estate of the testatrix to be administered by them as executrices of the last will and testament of Elizabeth Walsh. If all of the parties interested in the fund under the will of Mrs. Walsh were parties to this proceeding this court could, and perhaps ought to, require the accounting to be made here, but as the grandchild, one of the beneficiaries under the will, is not a party, the settlement of the estate can be more conveniently had in the surrogate's court of the county where the will was admitted to probate, and where the grandchild will be afforded an opportunity to be heard upon the accounting.