Dayton v. Adkisson

• Decision Date: 22 June 1889
• Citation: 45 N.J.E. 603,17 A. 964
• Parties: DAYTON v. ADKISSON et al.
• Court: New Jersey Court of Chancery

17 A. 964

45 N.J.E. 603

DAYTON

v. ADKISSON et al.

Court of Chancery of New Jersey.

June 22, 1889

(Syllabus by the Court.)

On final hearing on pleadings and proofs taken before the court.

This is a bill in the nature of an interpleader by the heir at law of a devisee in trust of real estate, asking for direction to whom he shall convey the trust-estate. Perry Adkisson, the testator and devisor, was lost at sea in or about the year 1875. He left two children, twins, John Wesley Adkisson and Margaret Ann Adkisson, aged about five years, the children of a woman with whom he had been cohabiting. John Wesley Adkisson died in 1876, and the mother in February, 1877. The testator and the mother lived together apparently as man and wife in one house in a court in the rear of No. 825, Carpenter street, in the city of Philadelphia, for about 10 years previous to his being lost at sea, and in that house the twins were born in or about the year 1869 or 1870. She had been the widow of a soldier, and as such entitled to a pension during her widowhood. The will is dated May 27, 1872, and the body of it is in these words: "I hereby constitute and appoint James B. Dayton executor of this my last will and testament, and guardian of my two children, John Wesley and Margaret Ann, children begotten by me on one Eliza C. Price, widow. I give and devise and bequeath all my messuages, lands, and tenements in the city of Camden, and state of New Jersey, to James B. Dayton, his heirs and assigns, with full power to sell and convey the same by good and sufficient deed of conveyance, whenever in his opinion it shall be for the benefit of my children so to do, and the rents or interest moneys from the same to devote to the education of my said children christened John Wesley Adkisson and Margaret Ann Adkisson, until they arrive to twenty-one years of age, and then my executor is directed to convey to the said Margaret Ann my frame house on Division street in the city of Camden, and to the said John Wesley my brick house on Locust street, in said city, or the proceeds of the same, if it should have been deemed expedient to sell the same, to the children named." Mrs. Price (or Adkisson) left one sister, Rachel Dill, who, in the absence of legitimate offspring, would be her only heir at law. The executor died in 1886, leaving the complainant his heir at law. The bill was originally framed upon the supposition that if the children were bastards the mother would inherit the land of her deceased son John Wesley under the act of March 9, 1877. (Revision, 1299,) and Rachel Dill was accordingly made a party; but when it appeared, early in the hearing, that both mother and child died before that act was passed, Miss Dill's counsel abandoned all claim on her behalf, and at the suggestion of the court the bill was amended, and the attorney general was brought in, and appeared personally in court, and was content to submit to such decree as the court might see fit to make.

Mr. Joline, for complainant. Mr. Harned. for Mary Ann Adkisson, now Gibson. Mr. Drake, for Miss Dill, and afterwards, by request of the court, for the attorney general.

PITNEY, V. C., (after stating the facts as above.) The question is to whom shall the trustee convey the lot which by the will he was directed to convey to John Wesley Adkisson? The sister, Margaret Ann Adkisson, (now by marriage Gibson,) claims it on three grounds: First. She claims that the proofs show that her father and mother were married, and that she and her brother were born in wedlock; and she accounts for the language in her father's will by the fact that her mother was entitled to a pension during her widowhood, and desired the marriage to be concealed in order to enable her to continue to draw her pension. Second. She insists that, if the proof fails to show a marriage before the birth of the twins, it is yet ample to show one to have taken place at some period during the cohabitation; and that as her father and mother were domiciled in Pennsylvania, and the twins were born there, such marriage, though it may have taken place subsequent to the birth of the children, was sufficient under the statute of Pennsylvania of May 14, 1857, (P. L. 507; Brightly, Purd. Dig. 1873, p. 1004, § 9,) which provides that, "in any and every case where the father and mother of an illegitimate child shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated, and enjoy all the rights and privileges as if they had been born during the wedlock of their parents," to render the twins legitimate; and, if legitimate in Pennsylvania, they are also legitimate in New Jersey, and competent to inherit from each other. Third. That, as she is the twin sister of her deceased brother, she is his sister of the whole blood, and as such answers the description of the heir of a person dying without descendants under the second section of our statute of descents.

The evidence, though somewhat conflicting, satisfies me that a marriage ceremony actually took place at some time between the testator and the woman he names in his will as "one Eliza C. Price, widow." The only difficulty I have is as to when it took place,—whether before or after the birth of the children. But for the language of the will I should have concluded that they were married at the time they went to live in the house in the court at the rear of No. 825 Carpenter street, Philadelphia, where they lived when the twins were born, and continued to live until their respective deaths. The evidence is clear that they lived there together as a man and wife would do. The woman went by the name of Mrs. Adkisson. The testator directed a neighboring grocery man to give her credit as his wife during his absence on his periodical voyages to sea. He supported the family in the ordinary way, including two of her children by her former connections. He frequently expressed regret that he had married her, and one witness (Harmon) swears that he saw a marriage certificate framed and hung up in the room occupied by the parties. He says it was an ordinary printed blank marriage certificate, filled up, and that it contained the names in writing of Perry Adkisson and Elizabeth Price, and was signed by one "Hardy," (or Harding,) minister of the gospel," and that there was such a minister at that time in the neighborhood, who is since deceased. Criticism was made on this man's evidence, on...