Opinion
08-07-1896
KNACK v. USHER.
Chas. E. Thompson, for complainant. Chas. C. Black, for defendant.
Bill by Maria Knack against Annie Usher.
Chas. E. Thompson, for complainant.
Chas. C. Black, for defendant.
STEVENS, V. C. The complainant files her bill to set aside three deeds of conveyance purporting to have been made by her to the defendant, Annie Usher, dated, one on December 18, 1885, and the other two on April 28, 1886. The land conveyed consists of certain lots situate at or near the southwest and southeast corners of Humbolt street and Bergenline avenue in Union Hill, Hudson county, worth at present from $15,000 to $20,000. Their value now is, perhaps, somewhat greater than it was at the time of the execution of the papers. The deeds are attacked—First, on the ground that they were procured by fraud; second, on the ground that, though recorded, they were never delivered.
The following facts are disclosed by the evidence: Maria D. Knack, the complainant, aged 76 years, is the widow of Charles Knack, who died in September, 1885. He left a will, devising all his property, including the above lots, to his wife. The defendant, Annie Usher, who is 86 years old, was an orphan. When about 5 or 6 years old,—that is, in the year 1866 or 1867—she was taken into the family of Mr. and Mrs. Knack, who had no children of their own; and up to the time of her marriage, in November, 1886, she was treated by them as their daughter. When confirmed, at the age of 14, she was described in her confirmation certificate as Annie Arberg Knack. Prom the time she was 14 years old she contributed to the support of the family by working with her needle on piecework done for a New York clothing house. Charles Knack, the deceased husband of complainant, was a carpenter, who had by his thrift saved money enough to buy the lots in controversy and two or three others. He built the houses upon them with his own hands, as he found opportunity. The deeds by which Mrs. Knack, after her husband's death, conveyed the lots in controversy to Annie, were deeds of bargain and sale, and purport to convey to Annie a present estate in fee simple. Shortly stated, the complainant's insistment about these deeds is that, she being ignorant of the English language, they were obtained from her by Annie or her confederates under the representation that "they were relative to" a will admitted to have been made in Annie's favor; while Annie's insistment is that both Mr. and Mrs. Knack, being strongly attached to her, and having no children of their own, desired the greater part of their property to go to her after their death; that Mrs. Knack, in order to give effect to the wishes of both of them, executed and delivered the deeds in question, and that Annie on her part executed a deed or paper to the complainant for the purpose of securing to her, while she lived, the possession and income of the property so conveyed. No less than five papers were in fact executed by complainant in Annie's favor. First, a will bearing date October 19, 1885, just a month after Charles Knack's death, devising to Annie two lots on the corner of Bergenline avenue and Humbolt street; second, a deed bearing date on December 18, 1885, for two lots on the same corner, with this difference, however: that whereas the lots were by the will to extend along Bergenline avenue, the principal street, 100 feet, and along Humbolt street 50 feet, they were, by the deed, to extend along Bergenline avenue only 50 feet and along Humbolt street 100 feet; third, two deeds, bearing date April 28, 1886, one of them conveying two lots on Bergenline avenue adjoining the lots conveyed by the deed of the 18th day of December, and the other conveying a lot on the opposite side of the street; fourth, a will bearing date May 7, 1886, giving two lots (not conveyed by any of the beforementioned deeds) to her sisters in Germany, and the residue of her property to Annie. Every one of these papers is called in question by the complainant. The first will gives two lots to Annie, and complainant says her instructions were to give only one. As to all the other papers, her sole and stereotype explanation of how she came to sign them was, "I thought it was something relative to the will that I made with Dr. Heifer" (alluding to the first will that she executed). And these papers were executed before Annie's marriage to James Usher; the first will and the first deed about a year before, and the other deeds and the second will about six months before. Annie was, at the time of their execution, "keeping company" with James Usher; and James, who was a real-estate agent, appears to have taken some part in the making or recording of all the papers, except the first will. It is singular and significant, however, that while complainant, in her bill, charges that the deeds were obtained by Annie "by false pretenses," in her evidence she does not allege, or even intimate, that she was induced to execute any of them through the persuasion of either Annie or her future husband. Her theory seems to be, if she can be said to have any theory on the subject, that those who actually drew the wills or took the acknowledgments of the deeds made such representations to her at the time she executed them as to lead her to believe that they were "relative to the will that she made with Dr. Heifer." Now, it so happens that the wills were drawn by different counsel, and the acknowledgments were taken before different officers. If her testimony is to be credited, we must assume that, without apparent motive or without concert, these different gentlemen at different times were guilty of making the same misrepresentation. Senator Stuhr, of Hoboken, drew the first will, and Michael T. Newbold, a lawyer of high standing, then practicing in Jersey City, but now dead, drew the second. The acknowledgment of the first deed was taken by Gustav Stahl, a commissioner, who testifies that he made known to her the contents of the deed before she executed it; and the acknowledgments of the two other deeds were taken before Frederick Franback, a practicing lawyer, and master in chancery, who testifies that he did likewise. Three of these gentlemen were of German parentage, and conversed with her in German; while the fourth, Mr. Newbold, appears to have had some knowledge of that language. There is, therefore, no room for supposing that Mrs. Knack misunderstood what they said because of her inability to understand them, even if she herself, though she had lived 41 years in this country, did not, as she testified, understand English. I am inclined to think, however, in view of the testimony of Mr. Harper, an insurance agent with whom she had many business transactions, and of Dr. De Graw, who at one time was her physician, who neither of them spoke German, that she understood and could express herself in English better than she was willing to admit. Nor could failing powers be urged in support of her present contention. While Mrs. Knack was 76 years old at thetime she testified, she gave but little evidence of either mental or physical decay. She is by no means devoid of intelligence, and still assumes the sole management of her property. In answer to the question, "How is your memory?" she replied: "You will find it out the way I talk. I have my five senses pretty well together." If her account of what transpired when she executed the papers is vague and unsatisfactory, it seems to me that the explanation is that she cannot make the facts fit her theory. I have no doubt that she fully understood what she was doing when she executed the papers, and that their purport and effect were fairly stated to her. The evidence fails to show that any undue influence was exerted upon her, or that any fraudulent representations or misleading statements were made to her, either before or when she signed. And what she did, if it be conceded that Annie gave to her a life interest in the property, was both reasonable and natural. I think the evidence demonstrates that Annie was regarded by both Mr. and Mrs. Knack as a daughter. She called them father and mother, and she was thought by many persons to be their own child. In her second will, drawn by Mr. Newbold, Mrs. Knack uses this language: "I give, devise, and bequeath to my dear companion Annie Arberg (sometimes called Annie Arberg Knack), who has for many years past been as near and dear to me as a daughter could be, * * *." It is not likely that Mr. Newbold put this in her will without any instruction on her part. But Annie was not a blood relation. If Mrs, Knack failed to make a positive provision for her, she would get nothing. There is evidence—controverted, however—to the effect that some of Charles Knack's heirs had threatened to dispute her husband's will, the fact being that he had committed suicide, and this may have made Mrs. Knack unusually careful in securing to Annie the enjoyment of what she then intended she should have. There is also evidence that the estrangement between herself and Annie occurred about the time when, according to evidence apparently uncontradicted, Mrs. Knack desired to contract marriage with a Mr. Goertler. I do not attach much weight to this evidence, and only allude to it because it may be thought to shed some light upon the conduct of the parties then and subsequently.
There is another aspect of this case which merits consideration. There cannot be any doubt whatever but that in the year 1886 Mrs. Knack did intend that Annie should have all her property at her death, except that which she contemplated leaving to her two sisters. The will drawn by Mr. Newbold proves this intention conclusively, and her reason for it, viz. that Annie was "her dear companion, * * * as near and dear to me as a daughter could be." Her deeds, made before this will was drawn, had given partial effect to her intention. To give complete effect to it, she supplemented the conveyances by the will, giving two lots to her two sisters in Germany, and providing that Annie should, in addition to what she had already given her, have whatever other real or personal estate (and there is evidence that she had some railroad stock and some furniture) she might die possessed of. In addition to the evidence I have mentioned, there is also evidence of declarations made by Mrs. Knack, tending to show that she knew that she had conveyed the property to Annie, and that she herself alone was no longer able to dispose of it. The only evidence that I will refer to in this connection is that of Mr. Harper, an insurance agent. Charles Knack bad built several small houses on the property, and these Mr. Harper had insured. He was accustomed to go to Mrs. Knack's house when the policies needed renewal, and he testifies that, having gone there in March, 1886, he, by direction of Mrs. Knack, changed a policy of $2,000 on the corner house to the name of Annie Arberg Knack. Subsequently, by the same direction, he changed other policies on the other houses on the west side of Bergenline avenue to the same name. In 1892 and 1893, Mrs. Knack instructed him to change them again, and to have them made out in her own name. Mr. Harper's evidence was supported by references to his books, and strongly corroborates defendant's insistence that Mrs. Knack understood what she was doing when she signed the deeds. The deed of December 18, 1885, was, as I have said, an absolute conveyance of the corner lot and of a lot adjoining. By its terms Annie would have had the right at once to take exclusive possession. This probably was found not to accord with the views or expectations of either of the parties, as they were still living together, and as Mrs. Knack was herself occupying the upper floors of one of the houses so conveyed. Annie's evidence is—and I see no reason to doubt it— that subsequently to the conveyance the complainant agreed with her that if she (Annie) would permit complainant to rent and manage all the property during her life, the complainant would convey to her (Annie) the property described in the deeds of April 28th. Annie further testifies that this agreement was carried into effect, Mrs. Knack conveying the property described in those deeds, and she executing a paper giving complainant a life right in all the property which her mother had deeded to her. This last paper was neither recorded nor produced. I do not attach much weight to Mrs. Knack's denial of its existence. Not only is her testimony on other points unsatisfactory, but she likewise denied the existence of another paper; one in which Mr. Knack expressed to his wife his wish that Annie should have a part of his property after his death. That there was such a paper was proved by several witnesses, and admitted by Mrs. Knack herself when first cross-examined about it, althoughshe afterwards denied its existence when pressed to produce it Aside, however, from Mrs. Knack's denial, it is surprising that so careful a lawyer as Mr. Newbold, who is said to have drawn the paper giving Mrs. Knack a life right in the property, should not have taken care to have had it recorded. Nor is Annie's testimony in regard to it very explicit As she swears, however, that she executed such a paper, and as Annie's husband swears that Mrs. Knack told him that Annie had given her such a paper, and as it is undisputed that for 10 years Mrs. Knack has been in the undisturbed possession of all the property, dealing with it in precisely the same way that any tenant for life would have dealt with It I think I am justified in finding that the paper existed.
I do not think the contention (not made in the bill) that the deeds were never delivered, and consequently never took effect well founded. Annie, in the course of her cross-examination, when asked what became of the deeds of April 28, 1886, replied, "Mrs, Knack gave them to me for safe-keeping." On this statement is built up the argument that there was no delivery vesting title. Apart from the legal doctrine that there can be no delivery in escrow to the grantee himself (Ordinary v. Thatcher, 41 N. J. Law, 404), and apart from the maxim, "In tradictionibus chartarum non quod dictum sed quod factum est inspicitur" (Shep. Touch. 59), I think the evidence shows that it was intended by the parties that the deeds should take effect, and that they did in fact take effect by an unconditional delivery.