Opinion
06-14-1904
VERNON et al. v. MABBETT et al.
Harvey F. Carr, for complainants. Herbert C. Bartlett, for defendant, W. I. Frost. W. W. Benthall, for defendant Mechanics' Building & Loan Ass'n of Vineland, No. 1.
Bill by Marlon L. Vernon and another against Sophia Mabbett and others to charge land in possession of the defendants with legacies to complainants. Decree tor defendants.
Harvey F. Carr, for complainants. Herbert C. Bartlett, for defendant, W. I. Frost.
W. W. Benthall, for defendant Mechanics' Building & Loan Ass'n of Vineland, No. 1.
GREY, V. C. (orally). The bill is filed by Marion L. Vernon and George Anna Mabbett Wise Magoffin, legatees under the will of Truman Mabbett Sr., which directs that the sum of $1,000 be paid to each of the complainants upon certain contingencies therein named, which contingencies it is admitted have happened, so that the complainants became entitled to their several legacies, as far as the will of Truman Mabbett Sr., is concerned. The bill sets out the will of Truman Mabbett, Sr., in which (after other provisions, and the giving of the above-named legacies) appears in the fourth clause this devise and bequest: "(4) I give, devise, and bequeath the rest, residue, and remainder of my estate unto my son Truman Mabbett, Jr., to him and his heirs, forever." Truman Mabbett, Jr., is made sole executor, and certain powers of sale are granted to him. It appears by the bill that at the time of his death the testator was seised of several tracts of land situate in Vineland, N. J., and, among others, of a certain tract of land situate on Myrtle avenue, in Viuelaud, of the width of 60 feet and of the depth of 204 feet, which was in April, 1890, conveyed to one Daniel Deyo, and which by various subsequent conveyances has come to be owned by the defendant Wallace I. Frost. The bill seeks to charge the lands whereof Truman Mabbett, Sr., died seised, with the payment of the legacies of $1,000 each given by that will to the complainants; these ladies at that time being unmarried.
The hearing in this cause has been limited to the questions raised by the answers of the defendant Wallace I. Frost, and the Mechanics' Building & Loan Association, No. 1, of Vineland, regarding the lot conveyed by Truman Mabbett, Jr., in 1896 to Deyo, and since purchased by the defendant Frost, and improved by him by the erection thereon of a dwelling house costing several thousand dollars. The answers of the defendant Frost and of his mortgagee, the Mechanics' Building & Loan Association, No. 1, of Vineland, deny that the complainants' legacies are charged on Frost's lot of land, and also set up certain equities applicable to the situation, in case the legacies should be held to be charged on the lands, disclosing in substance this situation: On the death of the testator in 1892, his son Truman Mabbett, Jr., entered into the possession of the premises. His mother, who under the will had certain rights given her, died on January 28, 1895. Mr. Truman Mabbett, Jr., on February 19, 1895, obtained the complainants, who were his nieces, and were legatees under his father's will, to accept a mortgage which he made to them, which declared "that thismortgage is given to secure the parties of the second part in the payment of two certain legacies of $1,000 each, given to them by the last will and testament of Truman Mabbett, Sr., deceased, said will being on record in the surrogate's office of the county of Cumberland." This mortgage covers the property of which Truman Mabbett, Sr., died seised, including that portion of those lands which has since come to be owned by the defendant Frost. Shortly after the giving of this mortgage to the legatees, the homestead property, part of the land in question, situate at the corner of Myrtle avenue and Landis avenue, was injured by fire to the amount of several hundred dollars. Truman Mabbett, Jr., who was then in the enjoyment of the premises under the devise of his father's will, was desirous of having the property restored.
The complainants were both of them sworn in this cause as witnesses, and both endeavored to create the impression that they had no acquaintance whatever with the fact that the property had become seriously injured by fire, and with the desire of this uncle, Truman Mabbett, Jr., that it should be restored. They attempted to show that the mortgage to secure their legacies which their uncle, Truman Mabbett, Jr., gave to them, was his sole act, done without their knowledge or arrangement. I was not satisfied with the frankness of their disclosure of their knowledge on these subjects. They are sisters, and nieces of Truman Mabbett, Jr., and quite obviously they were in constant interchange of communications, although they did not live together. Their manner of testifying did not convey to me the idea that they were sincerely expressing all their knowledge regarding their mortgage and their uncle's dealings with the property. The complainants deny that they assented to the making of the mortgage to them to secure their legacies. They deny that they even knew anything about it, or ever accepted it; but the evidence shows that they both recognized and accepted that mortgage by the release of November, 1895, and that one of the complainants, Mrs. Magoffin, pledged her interest in it to her mother as security for the payment of $1,000. and all the proof goes to show that they had always accepted the mortgage as representing their claims to the legacies. The evidence also clearly indicates by various circumstances that the complainants knew of this intended restoration of the homestead by Truman Mabbett, Jr., and that he needed to raise money for that purpose. The restoration of the homestead inured to their benefit as holders of the mortgage, which had already been made to them securing their legacies, for that mortgage covered the homestead property. Mr. Truman Mabbett, Jr., was unable to obtain anybody to restore the homestead, unless the repairer was previously secured for the payment of the bill for repairs. Mr. Mabbett had tome to be in embarrassed circumstances, and it was threatened that his property might be applied by his creditors to the satisfaction of their debts. Some special arrangement was necessary to enable the restoration of the homestead to be made. This was effected in this way: Mr. Mabbett secured Mr. Deyo, a carpenter and builder, to make the restoration, under an agreement with Mr. Deyo that a portion of the premises (whereof Truman Mabbett, Sr., had died seised, and which was included in the mortgage made by Truman Mabbett, Jr., to the complainants in this case) should be conveyed to Mr. Deyo, free and clear of all incumbrance, as his (Deyo's) compensation for the work, labor, and material to be by him furnished in the restoration of the homestead property. That this was intended by all the parties, Mr. Truman Mabbett, Jr., Mr. Deyo, and the two complainants, is, I think, clearly indicated by all the evidence on this phase of the case. Mr. Mabbett, Jr., obtained the complainants to execute a release of their mortgage on the particular lot which was to be conveyed to Mr. Deyo. Such a release was executed by both complainants on November 25, 1895, referring specifically to the complainants' mortgage, which on its face declared itself to have been made to secure the payment of their legacies.
The testimony satisfies me that up to this time neither of the complainants knew as a fact that their legacies under the will of Truman Mabbett, Sr., were charged by law on the land whereof Truman Mabbett, Sr., had died seised, of which the mortgaged premises were a part. The answer of the defendant Frost denies that the legacies are by the terms of the will of Truman Mabbett, Sr., charged on the land passing under that will. At the opening of the hearing of this cause I made known to counsel on both sides my opinion that under the decision in Corwine v. Corwine, 24 N. J. Eq. 579, the real and personal property of Truman Mabbett, Sr., having by the residuary clause of his will been passed in a blended mass to his residuary legatee, the operation and effect of that residuary gift was to charge all precedent money legacies upon the whole estate. This principle is so well settled in this state that I do not consider it open for argument. Counsel have proceeded with the hearing of this cause upon that assumption.
The inducements which led to the making of the complainant's mortgage are strongly indicated by the circumstances existing at that time. Mr. Truman Mabbett, Jr., is now dead, and his testimony cannot be had. Mrs. Charity Mabbett, widow of Truman Mabbett, Sr., died in January, 1895. Her death freed the lands devised from any liability to be sold for her support under the provisions of the will of Mabbett, Sr. Mr. Truman Mabbett, Jr., the devisee of the lands, had at this time become financially embarrassed, and in February, 1895, the mortgage was made by him to the complainants, which declares, as above stated, that it was given to secure the payment of their legacies.
There is every probability that this mortgage was made by Mr. Truman Mabbett, Jr., to his nieces, the complainants, with their assent, under the belief that they were in fact otherwise unprotected; neither party knowing that the law made the legacies a charge on the lands, because of the residuary gift of the whole estate. There is no doubt that Mabbett, Jr., dealt with the complainants in good faith, intending to secure their legacies by the mortgage, and that they accepted that security as a settlement of their legacies.
If the matter had remained in its original position, where only the complainants and Mabbett, Jr., were interested, it is quite probable that the complainants might, as against him, insist that their legacy charge should be enforced against the devised lands which come to him. That was the situation in Schanck v. Arrowsmith, 9 N. J. Eq. 314, which is cited by the counsel for complainants as controlling the decision of this case. That bill was filed to enforce a legacy charge on lands for which the legatee, without receiving payment of her legacy, had given a receipt in full to the devisee of those lands. The chancellor enforced the legacy as a charge on the lands—as against the devisee, because the mere signing of a receipt was not a discharge, unless the money was actually paid; as against the mortgagee of the devisee, because that mortgagee did not know that he had been misled by the receipt or by the conduct of the legatee; as against the judgment creditor of the devisee, because he knew that the legacies had not been paid, and had not given any credit to the devisee on the faith of his ownership of the devised lands free of the lien of the legacy. The decision is based upon the ascertained fact that "neither the judgment creditor nor the mortgagee lose anything by any confidence they placed in the fact that the receipts were given. They were mistaken in the law." That is not the situation of affairs in the case at bar. Whatever might have been the equities between Truman Mabbett, Jr., the devisee and mortgagor, and his nieces, the complainants, they are not presently in contention. It is the equities of Mr. Frost and his mortgagee, claiming under Mr. Deyo, which are here to be determined.
When the homestead was injured by the fire, both Truman Mabbett, Jr., who owned the lands, and the complainants, who held the mortgage covering both the homestead and the Myrtle avenue lot, afterwards conveyed to Deyo, were interested in the restoration of the homestead. There was no money to be bad for the purpose, unless it were raised by dealing with the land itself. Deyo was a builder. It was arranged that, if he would rebuild the homestead, he should have the Myrtle avenue lot clear of incumbrance for his pay. The complainants would get the benefit of the increased value of the mortgaged premises by reason of the restoration of the homestead. I am satisfied the complainants assented to the plan, and that they released the Myrtle avenue lot to Deyo free from any claim that they might have upon it Deyo believed he was receiving a title to that lot clear of encumbrance. He rebuilt the homestead, and complainants, as mortgagees, thus got a beneficial consideration for their release. Afterwards Deyo sold the lot By intermediate conveyances the defendant Frost became owner of it, and has improved it by erecting a dwelling on it worth several thousand dollars. He has mortgaged it to the defendant building association. The complainants, more than seven years after they had accepted and dealt with their mortgage as representing their legacies, and after Deyo and the defendant Frost, who claims under him, have irretrievably changed their positions, and spent their money on the released Myrtle avenue lot, now ask this court to declare that the mortgage was not a substituted security in place of the legacy charge, that the release given by the complainants did not affect the lien of their legacies on that lot, and to make a decree which will enable the complainants to retain the values they have received by Deyo's improvement of their mortgaged premises, and at the same time to hold the Deyo-Frost lot (which the complainants had released from their claim), with its value greatly increased by buildings since erected on it, in the belief that the complainants had released it. The complainants, by releasing their mortgage, and dealing with it as the substitute for and representative of their legacies, invited Deyo to invest his money upon the assumption that the lot he received as his pay for restoring the homestead was clear of the complainants' claim. Deyo's successors in ownership of that lot have all dealt with it, accepting the complainants' view. They have parted with their money, and cannot be restored to their former position by a surrender of the complainants' mortgage, permitting the complainants to enforce their undisclosed legacy charge. To make a decree that, notwithstanding these incidents, the legacies shall be charged on the Deyo lot (now Frost's), would be peculiarly inequitable, in view of the complainants' inaction and acquiescence in the situation while Deyo and his successors in ownership were constantly investing more money upon the lot, relying upon the complainants' release of their mortgage securing their legacies as a full settlement of their claim under the will of Truman Mabbett, Sr.
The complainants' bill should be dismissed, with costs, as against the defendants Wallace I. Frost and wife, and his mortgagee, the Mechanics' Building & Loan Association, No. 1, of Vineland.