Adams v. Schmidtt

• Decision Date: 02 February 1905
• Citation: 68 N.J.E. 168,60 A. 345
• Parties: ADAMS v. SCHMIDTT et al.
• Court: New Jersey Court of Chancery

60 A. 345

68 N.J.E. 168

ADAMS

v. SCHMIDTT et al.

Court of Chancery of New Jersey.

Feb. 2, 1905.

Suit by Charles Hall Adams against John George Schmidtt and others. Heard on bill, answer, and proofs. Decree for complainant.

Charles L. Carrick, for complainant. Henry V. Condit and Richard Boardnian, for defendants.

PITNEY, V. C. The complainant, Charles H. Adams, filed his bill against (John) George Schmidtt and wife, John Schmidtt and wife, Henry Schmidtt and wife, Rosa Helfrich and her husband, William Drennan, and Eugene D. Knox, to establish and enforce an equitable lien upon a house and lot situate in Hudson county, and in aid thereof to set aside a conveyance made by the defendants the three Schmidtts and Rosa Helfrich to Drennan, dated February 27, 1903. The defendant Knox is made a party because he has been in the possession of the rents and profits. The basis of the lien is a power of attorney, or, rather, two powers of attorney, substantially the same in verbiage, one executed by Henry and John Schmidtt and Rosa Helfrich on July 9, 1902, and one executed by (John) George Schmidtt on July 11, 1902, both to the complainant, and both coupled with an interest in land. I shall give the contents more particularly hereafter. All the defendants except Knox have answered. The allegations of the bill as to the lack of consideration of the deed from the parties named to Drennan are admitted, and a substantial defense to complainant's case thereon is attempted to be set up and proven by the four grantors of that deed, the three Schmidtts, (John) George, John, and Henry, and Mrs. Helfrich. The execution of the powers of attorney are not seriously disputed, but it is alleged (1) that certain additions have been made thereto since their execution, and (2) that they were procured by what amounts to fraud, in that certain facts which were material for the parties executing them to know before executing them, and which were within the knowledge of the complainant were concealed from them until after the execution.

At the close of the evidence on the part of the defense, and before the complainant had commenced his rebuttal, if any he had, the case on the part of the complainant seemed to me to be so clear that I suggested a settlement between the parties based on a right of recovery. That suggestion seemed to be cheerfully acquiesced in, and a stipulation, as afterwards stated by counsel, was entered into, which, however, seems to have broken down in the attempt to carry it out, and a motion was made by the complainant for a receiver. This was vigorously opposed, and I suggested an argument on the merits. This has been had in writing. And I have now to state the result of my more elaborate examination of the case.

Mr. Adams is a lawyer, residing in Massachusetts, whose business is the acting as commissioner for all the states of the United States, and also he devotes his attention to the hunting up of the heirs and next of kin of vacant estates; that is, of estates for which there is no immediate and notorious claimant. For this purpose he has maintained a fully equipped office. At the time covered by the matters involved herein he had a friend and correspondent, a Mr. George A. Smythe, a Massachusetts lawyer, who was living in New York City, and who was engaged in the same business, but had no office equipped for that purpose, and had an arrangement with Mr. Adams, the complainant, to do business for and with him in his name. In November, 1901, there were living in New York City two unmarried brothers, named Gotlieb and Adolph Buchinger, but who assumed and went by the names of William and Adolph Burnett. William (or Gotlieb) was economical and thrifty, and acquired a small fortune. His brother, Adolph, had none of those qualities, and little mental capacity. On the 18th of November, 1901, Gotlieb (or William) was instantly killed by an accident as he was passing an opening in the subway excavation in New York City. He died intestate, seised of the house and lot here in question, and of upwards of $2,000 in money deposited in a savings bank or banks in New York City. Letters of administration were granted by the surrogate of New York county on his estate to his brother Adolph and one William Dawson. The latter, who clearly appears to have been a designing and dishonest man, took possession of the personal estate, and induced the several tenants of the house and lot here in question to attorn to him. Adolph, the surviving brother, died April 14, 1902, without any known heirs or next of kin. The proceedings had all been in the name of Burnett. Dawson, the surviving administrator, failed to pay some small debt of either William or Adolph (some of the evidence says that it was for the funeral expenses of Adolph), and this creditor made inquiry at the surrogate's office, which appears to have excited the attention of some one there, and to have come to the knowledge of Mr. Smythe. That gentleman immediately took up the matter, called at the late residence on Ninth avenue of Gotlieb (or William), and made inquiries, and finally encountered an old German, who informed him that the real name of the two brothers was Buchinger, and that they had had a sister, who had married a German named Frankenhauser, who lived in Guttenburg, in Hudson county. Mr. Smythe found this gentleman, who informed him that the only relatives which he knew of the deceased was a family of Schmidtts, who lived in Brooklyn. The name is numerous in Brooklyn, but Smythe finally found a John Schmidtt, the brother of Rosa Helfrich, who believed that he was a cousin of the Buchingers, and from him heard of his sister and of his two cousins (John) George Schmidtt and Henry Schmidtt, and was referred by him for further information to (John) George Schmidtt. While hunting for these persons—as he swears—he found that a cousin, supposed to be their first cousin, named Reinfeld, had died some 10 or more years previously, insane, in or near Brooklyn, and had left some money in a savings bank, and Smythe found that the defendants above named knew of this money, and had made faint efforts to get it, but without success. He swears that he told the defendants at the start that their cousins in New York, the two Buchiners, were dead, without children, leaving property, and that they (the Schmidtts) were probably entitled to it, or to some share in it; but he did not state to them what the property was, and did not mention the house and lot here in question. He further stated to them—as he swears— that it would be necessary to trace their kinship by evidence from Germany, whence they all came, and would be attended with a great deal of labor and expense, and proposed to undertake to procure it on shares. On July 8, 1902, with the aid of information obtained from Frankenhauser and from (John) George Schmidtt, principally the latter, he made up a "family tree" showing that the four persons named were the sole heirs and next of kin of the Schmidtt blood of Adolph Burnett. This "tree" was offered in evidence, and marked "C-3 for Complainant." It showed seven brothers and sisters in the Schmidtt family, of which Adolph Buchinger's mother, Caroline Buchinger, was one, all the offspring of a second marriage of her father, Martin Schmidtt. It is alleged that it was afterwards developed by further examination in Germany that the father of (John) George and Henry was brother of the whole blood of Caroline Buchinger, but that the father of John Schmidtt and Rosa Helfrich was the half-brother, only, of Caroline Buchinger. Hence it is alleged by complainant that the two defendants last named, under the doctrine of Stretch v. Stretch, 4 N. J. Law, 182, cannot inherit. I do not find it necessary to determine this question at this time. Mr. Smythe negotiated with (John) George Schmidtt as representing the others, and it was agreed between them that Smythe should undertake the jot) upon shares. On the afternoon of the 9th of July, 1902, the day after the last interview with (John) George, Smythe employed a Mr. Campbell, a notary public employed as a clerk in the United States District Attorney's office in the post office in New York City, to go with him to Brooklyn to take the acknowledgments of the different parties to the powers of attorney. He took in his pocket a blank power of attorney, a rough, unfinished "family tree" written in pencil on a yellow sheet of manilla paper made up from Mr. Frankenhauser's information and what he had gained from time to time (which is marked as "Exhibit C-9 for Complainant"), and a more shapely one, previously mentioned, made up on July 8th (marked "Exhibit C-3 for Complainant"). The two visited Brooklyn, and called first at the house of (John) George Schmidtt, and found that he was absent from home. They went next to the house of his cousin John, whom they found, and induced him to go with them to the house of Henry Schmidtt, brother of (John) George, and induced him to go with them and John to a beer saloon near by, where there was a light and a pen and ink, and there the two cousins John and Henry signed the power of attorney. It is quite plain from the evidence of these persons that they had been prepared by (John) George for this visit. Both Mr. Campbell and Mr. Smythe swear that the blanks in the power of attorney were filled up there by Mr. Smythe in the presence of the parties before signature. Those blanks are the names of the parties who were to sign, the name of Adolph Buchinger, the decedent, and the name of William M. Hoes, public administrator of the city of New York, his successor, etc. The defendants, or some of them, swear that those names were not inserted at the time the paper was signed, and, as I understand the evidence, they state that the name Charles Hall Adams, which is clearly typewritten in with large capitals, was not there. If this question is at all important, and there is the least reason to doubt the...