Bassett v. Shoemaker

• Decision Date: 21 June 1890
• Citation: 46 N.J.E. 538,20 A. 52
• Parties: BASSETT et al. v. SHOEMAKER.
• Court: New Jersey Supreme Court

20 A. 52

46 N.J.E. 538

BASSETT et al.

v. SHOEMAKER.

Court of Errors and Appeals of New Jersey.

June 21, 1890.

(Syllabus by the Court.)

Appeal from court of chancery; PITNEY, Vice-Chancellor.

W. S. Potter, for appellants. A. Stephany, for respondent.

VAN SYCKEL, J. The facts of this case are concisely stated by the vice-chancellor as follows: The bill is filed by one of the beneficiaries under the will of David Shoemaker, of Pedricktown, Salem county, and asks the court to set aside the sale and conveyance by Albert Bassett, executor of the will, of a farm of the testator in said county. The testator left two children, viz., David Shoemaker and Mrs. Sarah E. Bassett, wife of the executor, and the children of a deceased son, Isaac, of whom the complainant is one, and two of whom are infants. By his will testator directed his executor to sell his real estate, including the said farm, and to divide the proceeds among his children and grandchildren. The executor advertised the farm in question for sale at Pedricktown, on November 28, 1888. It had been the home of testator, and was occupied at the time of the sale by Mrs. Mary Shoemaker, the widow of his deceased son, Isaac. At the sale the only persons actually bidding were Mrs. Bassett, one of the defendants, and Mrs. Mary Shoemaker. The former bid the farm up to $102 per acre, and Mrs. Shoemaker bid $102.50, and it was struck off to her, and she signed the conditions of sale, and gave her note for the required percentage. She did not, however, comply with the terms of the sale; and without, so far as it appears, any demand to enforce such compliance, the executor read vertised the farm for sale, at the court-house in Salem, on January 26, 1889. At this sale Mrs. Bassett employed the defendant Fogg to bid for her, and the property was struck off to him at the only bid made, of $50 per acre. The deed was made and delivered on February 8, 1889, to Fogg, who on the same day conveyed by deed to Mrs. Bassett, who paid the purchase money directly to her husband. All of these facts were set forth in the answer to the bill. The court below set aside the sale, refusing to permit Mrs. Bassett to produce evidence to show that the sale was a fair one, and for the best price that could be obtained. It is insisted on the part of the appellant that there was error in excluding this evidence; that since the passage of the married woman's act, tenancy by the curtesy initiate being abolished, the husband had no present interest in the real estate of his wife, and that therefore she, being a beneficiary under the will, could not be denied the right to purchase in protection of her own interest. The leading case of Darou v. Fanning, 2 Johns. Ch. 251, presents facts substantially like the case before us. Chancellor KENT held that other parties...