Davis v. Davis

• Decision Date: 11 January 1897
• Parties: DAVIS v. DAVIS et al.
• Court: New Jersey Court of Chancery

36 A. 475

55 N.J.E. 37

DAVIS

v. DAVIS et al.

Court of Chancery of New Jersey.

Jan. 11, 1897.

Suit by Edward M. Davis against Henry L. Davis and Edward H. Murphy to set aside an agreement. Heard on demurrer to bill.

The bill alleges that the complainant is the child of George Davis, Jr., and Sarah, his wife, and was born November 20, 1868; that his father died in 1874, and his mother died in 1877, both intestate; that his paternal grandfather became his guardian, and also the administrator of his mother's estate, but died In July, 1879, before the mother's estate was settled; that in August, 1881, the defendant Henry L. Davis, an uncle, became the complainant's guardian, by appointment of the surrogate of Kings county, N. Y., and in September, the same year, by appointment by the same authority, also became administrator of the father's estate, and in August, 1884, by appointment of the surrogate of Westchester county, N. Y., became the administrator de bonis non of the mother's estate; that in May, 1894, being more than 25 years of age, the complainant, through the instrumentality of the defendant Edward H. Murphy, a lawyer practicing in the state of New York, compelled an accounting by Henry L. Davis, as administrator of his father's estate, before the surrogate of Kings county, thereby ascertaining him to be chargeable with a balance of $628 in the complainant's favor, and, in a similar proceeding before the surrogate of Westchester county, ascertained him to be chargeable, as administrator de bonis non of the mother's estate, with a balance of $5,080, also in his favor; that after these accountings, in November, 1894, the complainant proposed to commence further legal proceedings to compel the defendant Davis to account for his guardianship, and pay whatever balance there might be in his hands; that, in furtherance of this project, in November, 1894, he entered into an agreement with the defendant Murphy to pay him 40 per cent of any money that might be recovered from the defendant Davis in the proposed litigation; that at this juncture in the proceedings the defendant Davis sought the complainant, and offered to amicably account with him, and satisfy his just demand with respect to the guardianship; that without the knowledge of Murphy, who is recited in the agreement presently mentioned to be opposed to any amicable settlement to the guardianship accounts, the complainant entered into an accounting with the defendant, Davis, who (using the language of the bill) "displayed unto your orator certain accounts and statements, of various amounts, which he claims to be time, just, and accurate accounts and items covering and embracing the management of the estate in his trust, and as guardian of your orator"; that, relying upon such statements and assurances, the complainant agreed with Davis upon the sum of $565 as the amount due to him, and thereupon, by writing under his hand and seal, agreed to take payment of the same as follows, to wit, $200 in cash, and $10 each month until the balance of the $565 should be paid, provided that Murphy should approve of the settlement, and, if he should not, the 60 per cent. of so much of the $565 as should remain unpaid, and also that he would not sue Davis, and would forfeit any unpaid balance at any time he might do so; that the $200 was paid to him upon the execution of the agreement; that Murphy did not approve the settlement; that the complainant and Davis were sued by Murphy, and that upon such suit being brought the complainant (using the language of the bill) ...