Brands v. de Witt

• Decision Date: 08 August 1888
• Citation: 44 N.J.E. 545,14 A. 894
• Parties: BRANDS et al. v. DE WITT et al.
• Court: New Jersey Supreme Court

14 A. 894

44 N.J.E. 545

BRANDS et al.

v. DE WITT et al.

Court of Errors and Appeals of New Jersey.

August 8, 1888.

GARRISON, BROWN, CLEMENT, and WHITAKER, JJ., dissenting.

(Syllabus by the Court.)

Appeal from court of chancery; BIRD, Vice-Chancellor. See 10 Atl. Rep. 181.

Argued March term, 1888.

George A. Angle, for appellants. C. H. Beasley and Shipman & Son, for respondents.

VAN SYCKEL, J. David Brands died intestate in January, 1883, seized in fee of a farm containing about 117 acres of land, and some personal estate. His seven children survived him. Isaac, one of his sons, administered upon the personal estate, and sold it. In November, 1883, it was agreed that the real estate should be sold at public sale, and that all the children would join in making a conveyance of it to the purchaser. The farm, at that sale, was struck off to Abram Brands for $38 per acre, and he signed the conditions of sale. On the day of the sale, and after the sale, Isaac, as he alleged, discovered in an old desk, which he had purchased at the sale of the intestate's goods, three releases to the intestate, one executed by his son Jacob, one by his son Abram, and one by James. Two of the releases purport to be in consideration of land conveyed to them by their father in his life-time, and the third in consideration of the sum of $2,500. In the releasing part, each one "releases, discharges, and forever quitclaims all right, title, interest, or claim whatsoever to him, the said David Brands, and to his other children, and heirs-at-law of all the estate, both real and personal, that may be left at the decease of the said David,—the releasor being fully satisfied and content, on the reception of the above-mentioned deed, for all the legacies that now or ever hereafter might descend to him from the estate of said David; and that all the estate of said David, at the time of his decease, may be divided among his other children, and heirs at law or otherwise, without any claim or demand either by himself, his heirs, executors, or administrators." Upon the production of these releases, the other children claimed that Jacob, James, and Abram were thereby excluded from any share in the intestate's estate, and thereupon James and Jacob refused to execute the deed of conveyance for the farm sold to Abram. The other children executed a conveyance to Abram, but he refused to accept it because all had not joined in it. On the 24th of May, 1884, James filed a bill in chancery for the partition of said lands, to which all the heirs at law were parties. After the defendants to said bill had filed their answers, an agreement in writing, dated September 6, 1884, was entered into by all the children, except Mrs. De Witt, by the terms of which the intestate's estate was to be equally divided among all the children of decedent, notwithstanding said releases. In consideration thereof Abram signed an agreement to take the farm at $38 per acre, which it was then understood among them was a larger price than could otherwise have been obtained for it. Thereupon, in accordance with said agreement, the partition suit, by consent of all parties, was discontinued; costs were paid to Mrs. De Witt and James Brands for himself, and Jacob Brands executed the conveyance for the farm, and delivered it to Abram, who accepted it, and gave his obligations for the purchase money in the court below the validity of the releases was upheld, and a decree made that Mrs. De Witt, Isaac Brands, Catharine Green, and Hannah Reed were each entitled to one-fourth of the estate, to the exclusion of the three who had released. Costs were allowed to the several parties out of the proceeds of sale of the land. James Brands and Abram Brands appealed from this decree, because they were...