Ashby v. Ashby

• Decision Date: 12 May 1900
• Citation: 59 N.J.E. 547,46 A. 522
• Parties: ASHBY v. ASHBY et al.
• Court: New Jersey Court of Chancery

46 A. 522

59 N.J.E. 547

ASHBY

v. ASHBY et al.

Court of Chancery of New Jersey.

May 12, 1900.

(Syllabus by the Court.)

Bill by Amos K. Ashby against Timothy W. Ashby and others. Bill dismissed.

The complainant, Amos K. Ashby, is the occupant of a gristmill and dwelling-house property, situate on Delaware avenue, in the city of Burlington. The property was owned by his father, Edward Ashby, who died on the 15th day of May, 1888, seised of the same in fee simple. Some four years before his death the testator had, on March 25, 1884, demised the premises in question to the complainant by a written lease for the term of three years, at a yearly rental of $425, payable quarterly, with a covenant that, if the lessee should have made "material and substantial additions to the machinery of said mill at his own proper cost, and paid therefor, in case of his death during the continuance of this lease his estate shall receive from said party of the first part such proportion of said cost as they then add to the value of, and be worth to, said premises. In case of the death of either of the parties hereto, then, and in that case, this lease shall cease and expire in six months from and following such death." The lease also contained a clause for redelivery of possession in as good condition as to repairs as they were in at the time of the leasing, ordinary wear and tear and destruction by the climate only excepted, and also this clause: "All necessary repairs to sd. mill property during the continuance of sd. lease to be paid for by sd. party of the 2nd part." While the above-mentioned lease was in force the testator, Edward Ashby, on June 19, 1887, made his will hereinafter quoted, containing the two provisions regarding repairs, which are now the subject of dispute. There is an indorsement on the lease of March 15, 1884, which indicates that it was intended to be continued for a year in addition to the term of three years demised by that lease. On March 25, 1888, a new lease was made, by which the testator again demised the premises to the complainant for a further term of three years, until March 25, 1891, terminable in six months after the death of either party, with the same covenants and clauses as to repairs as are above quoted from the lease dated March 25, 1884. While this term was outstanding, the testator, Edward Ashby, died, as above stated, on May 15, 1888. The complainant continued to occupy the Burlington Mill property under the terms of the lease dated March 25, 1888, up to November 15, 1888; that being six months after the death of the lessor and testator, Edward Ashby. By his will the testator devised the residue of his real estate, including this mill, etc., to his wife, Lydia G. Ashby, during her life, with the following proviso: "Provided, nevertheless, that my son Timothy W. Ashby shall be allowed to continue in the occupation of the homestead house, farm, and mill property in Mansfield township if he elect to do so, and shall pay all taxes, and keep the said property in good repair, at his own proper cost and expense, and shall further pay the sum of three hundred dollars per year, in four quarterly payments, as a rental therefor, during the life of my said wife, and it is my desire and request that my said son Timothy do so occupy the said premises on the terms aforesaid; but should he not elect to do so, or should desire to vacate the said premises, then my said wife may rent the same to any other tenant on the best terms that can be obtained by her. And provided also that in like manner my son Amos K. Ashby shall be permitted to continue in the occupancy of my mill property on Delaware avenue, in the city of Burlington, and the dwelling on the S. W. corner of York and Delaware St., he paying all taxes and all needed repairs at his own proper cost and expense, and a further yearly rental of four hundred and twenty-five dollars, to be paid in four quarterly payments to my said wife during her natural life, and subject to the same conditions, provisions, and requests regarding my said son Amos as above made regarding my son Timothy." The testator further provided that, upon the death of his said wife, his property should be disposed of by various special legacies and devises, among others to Amos a legacy of his own note for $1,000, and made this further provision as to the Burlington Mill: "And as an additional provision regarding the mill and dwelling house on Delaware avenue, in Burlington, it is my will, and I direct, that my said son Amos K. Ashby shall be privileged at the death of my said wife to become the purchaser of said properties for the sum of ten thousand dollars [here he makes a like provision for Timothy to purchase the Mansfield Mill for $8,000]; the said option and privilege to be theirs for the space of three months after the decease of my said wife, after which the said properties may be sold by my executors, who are hereby authorized and empowered to convey the same in fee simple. Eighth. The rest, residue, and remainder of my estate, wherever situate, whether real, personal, or mixed, I give, devise, and bequeath to my sons Timothy W. Ashby, Amos K. Ashby, and David G. Ashby, and my daughters Mary G. Vandergrift and Anna S. Phares, one equal undivided fifth part to each of my said children (my other children having been hereinabove provided for), to their heirs and assigns, forever; and, in the event of the decease of either of my said children during the lifetime of my said wife without issue him or her surviving, then the said estate shall vest in such of my said five last named children as shall at that time survive, and to their heirs and assigns, forever. Ninth. I nominate, constitute, and appoint my two children, Timothy W. Ashby and Ella K. Asbby, and my friend Henry S. Haines, of Burlington, N. J., to be the executors and executor of this, my last will and testament." The will was, on June 5, 1888, proven by all the executors named, and they proceeded to settle the estate. The complainant continued to occupy the Burlington Mill and house after his father's death, and until the present time.

The complainant alleges in the bill of complaint that his occupancy of the Burlington Mill was not "upon the precise terms and conditions suggested in said will," but as tenant of his mother, the life tenant, and that he made his payments direct to her up to the time of her death, on October 23, 1807. He further states that the mill building had become greatly out of repair because of the sinking of the floors and bending of the girders, and that in November, 1894, at a meeting between the complainant and the executors, who the complainant claims represented all the tenants in common with him, the complainant called their attention to the tendency of the floors to sink, and made efforts to induce the executors to authorize an expenditure of $500 by the complainant in "making the required repairs," to be paid out of the property when sold. The complainant insisted it would cost more, but was willing to undertake the repairs for that sum. The plan failed, as one of the executors refused to assent. In the following spring (1895) the tide water of the river rose so high as to cover the first floor of the mill several times, causing further damage to the foundation, girders, and floors. The city building inspector gave notice not to load the floors. The complainant alleges that the result was that Ella K. Ashby, one of the executors, "finally authorized the work to proceed, agreeing with the complainant that if he would pay for the work as it went on that what the estate did not pay for her mother, the said Lydia G. Ashby, would have to see it was paid; that they would pay for all carpenter work and material, but, if any repairs or changes were made to machinery, complainant would have to pay for that." The complainant proceeded, and spent $2,039.51 in rebuilding piers which had settled and additional new ones, restoring floors and joists, which had rotted, and renewing the old roof and rafters, which had so settled that they had to be replaced, and the third floor had to be removed and made new. The complainant claims that all these repairs and improvements were of a permanent nature, and "necessary for the proper repair of the building," and have added to its per manent value; that his co-tenants in common saw and knew of the work when it was going on, and made no objection. He alleges that he has demanded that they consent to pay the expenses he has incurred, but they have not done so, and that the executors have given notice of the sale of the mill property under the power given them in the will. He prays that his right to be repaid out of the mill property, or from the proceeds of its sale, the full amount of his expenditures in repairing and improving the mill may be established, and that the said amount may be decreed to be a lien on the mill, and the defendants required to pay the complainant their proper proportion of said expenditure, and for an injunction against any sale by the executors, or a disposition or incumbering of the premises, until final decree. The complainant has appended to his bill a list of the names of the persons to whom he paid money, and the amounts paid, with a few items showing for what the money was expended. This list he refers to as a copy of the items of his expenditures. It throws very little light on any other point than the amounts claimed to have been paid out by him. Nothing stated in the list shows for what portion or character of the work done the money was expended. The complainant makes the executors of the will and the other tenants in common of the property defendants in his bill.

The tenants in common, by their answer, deny that they ever agreed with complainant to pay him $500 towards repairing the mill, and say that such an agreement was discussed, but never reached. They deny any responsibility for the repairs made by compla...