Deseumeur v. Rondel

• Decision Date: 16 November 1909
• Citation: 76 N.J.E. 394,74 A. 703
• Parties: DESEUMEUR v. RONDEL.
• Court: New Jersey Court of Chancery

74 A. 703

76 N.J.E. 394

DESEUMEUR

v. RONDEL.

Court of Chancery of New Jersey.

Nov. 16, 1909.

Bill for specific performance by Florine A. Deseumeur against Frederick Rondel. Decree for defendant.

Heard on bill, answer, replication, and proofs in open court. This is a bill for specific performance. The complainant charges: That she is the owner in fee simple of lots 195, 197, 199, 202, 203, and 204 on a certain map of the town of West Hohoken, in this state; that on the 25th day of January, 1909, she and the defendant, Frederick Rondel, made an agreement in writing by which she agreed to sell and convey the said lots to him for $7,800, free of all incumbrances, except a mortgage for $3,000 then a lien on the premises; that upon the day fixed for passing title she tendered to the defendant a deed, duly signed, sealed, and acknowledged, conveying in due form of law the abovementioned premises, which she claims are free an clear of all incumbrances excepting the said mortgage, which deed the defendant refused to accept. The defendant admits the facts charged in the bill, and justifies his refusal by alleging that the complainant had not such a title to the property in question as to require the defendant to take it, and sets up the facts which he claims show that the complainant had not a title in fee simple free of incumbrances excepting the mortgage aforesaid.

Doremus & Lecour, for complainant.

Jason R. Elliott, for defendant.

GARRISON, V. C. The following are the facts as proven before me: On or before the 2d of June, 1854, Alexander Bisson was the record owner of lots 195, 197, 199, 202, 203, and 204 on a certain map of the town of West Hoboken in this state. On the 2d of June, 1854, Alexander Bisson and Elizabeth F., his wife, conveyed to Jean Baptiste Teeson lots Nos. 197, 199, 202, and 203, and on the Sth of June, 1854, Teeson conveyed the lots just designated to Elizabeth F. Bisson. On the 20th of June 1855, Alexander Bisson and Elizabeth F. Bisson signed a paper reading as follows:

"In the Name of God, Amen. We, Alexander Bisson and Elizabeth Fraucoise Bisson (nfe Wouters), his wife, of Weehawken, in the township of North Bergen, county of Hudson and state of New Jersey, do hereby make, publish and declare this our last will and testament, in manner following; that is to say: Whereas, we are, at this present time in good bodily health, and of sound and disposing mind and memory (blessed be God for the same); and whereas, it is our mutual desire to make a final settlement of our whole earthly goods and possession, in the manner hereinafter directed; and whereas, I, the said Elizabeth Francoise Bisson, am seised in fee, in my own right, of certain real estate, with the buildings thereon, at Weehawken aforesaid, which was purchased with the proceeds of my lawful inheritance, as one of the heirs of my father, and I, the said Alexander Bisson, am possessed of certain personal property therein situated:

"First. We do hereby order and direct our executors hereinafter named, as soon as they take upon themselves the management of our affairs, to pay and discharge all our and each of our just debts, deathbed and funeral expenses.

"Secondly. It is our will that upon the death of either of us, the whole real and personal property, now belonging to us, or either of us, be possessed, used and enjoyed by the survivor, to have and to hold the same to me the said Alexander Bisson, during my natural life in the event of my surviving my said wife; or me, the said Elizabeth Francoise Bisson, in the event of my surviving my said husband, during the period of my natural life, together with the rents, issues and profits of the said real estate and the full use, enjoyment and control thereof.

"Thirdly. Upon the death of the survivor of us, we do hereby order and direct our executors hereinafter named, to sell and absolutely dispose of the whole real estate and personal property of which such survivor shall die seised and possessed as aforesaid and to divide and set apart the proceeds of such sale into two equal parts, one of which shall become the property of the heirs at law of me the said Alexander Bisson, residing at Paris, in the Empire of France, or elsewhere, and the other one-half part shall become the property of the heirs at law of me, the said Elizabeth Franeoise Bisson, residing in the Kingdom of Belgium or elsewhere. It being our mutual will and intention that this disposition of our whole estate, real and personal, shall take effect upon the demise of the survivor of us the said testator and testatrix.

"Lastly. We do hereby nominate, constitute and appoint Edward Dubois of Weehawken aforesaid and Frederic J. Emerich of Hoboken, executors of this our last will and testament.

"In witness whereof we have hereunto set our hands and seals the twentieth day of June in the year of our Lord one thousand eight hundred and fifty-five.

"Bisson. [L. S.] "E. F. Bisson. [L. £.] "Signed, sealed, published and declared by the said testator and testatrix, to be their last will and testament, in the presence of the said testator and testatrix and in our presence, who in their presence and in the presence of each other at their request subscribed our——as witnesses hereto.

"Aiex. Watson.

"Adolph W. Marten, City of Hudson.

"Wm. Edelstein." This paper, on the 22d day of December, 1851), was probated in Hudson county, in this state, as the will of Alexander Bisson; he having died. Elizabeth F. Bisson subsequently married a man who is indifferently called "Vital Dalller" or "Dallier Vital." On the 6th of April, 1864, Elizabeth F. and Vital Dallier made a deed to Zelie Noonan Daveau, purporting to convey lots numbered 195, 197, 199, 202, 203, and 204. On the 6th day of October, 1865, the last-named grantee and Jules, her husband, made a deed for the same lots to Vital Dallier. On the 26th day of October, 1875, Elizabeth F. Dallier having died in the meantime, a paper was admitted to probate in Hudson county, in this state, as her will, which paper is dated February 25, 1863, and by the terms of which she devises and bequeaths everything to her husband, Dallier, and makes him her executor. On the 1st of August, 1879, the will of Vital Dalller is admitted to probate in Hudson county, in this state, by the terms of which he devised all of his property to Seraphin Clement. On the 14th of April, 1880, Seraphin Clement made a deed to Florine A. Deseumeur for lots numbered 195, 197, 199, 202, 203, and 204. On the 14th of April, 1880, Frederic J. Emerich, executor of Alexander Bisson, deceased, made a deed to Florine A. Deseumeur for lots numbered 195 and 204. On the 25th of January, 1909, Florine A. Deseumeur (the complainant herein) by a contract in writing, agreed to convey to Frederick Rondel (the defendant herein) for $7,800 the six lots above described free of all incumbrance excepting a certain mortgage.

It will be noted that at the time of the making of the paper writing in form a will by Alexander Bisson and Elizabeth F. Bisson, his wife, on the 20th day of June, 1855, the title to four of the lots, namely, Nos. 197, 199, 202, and 203, was in Elizabeth, and the title of two of the lots, namely, Nos. 195 and 204, was in Alexander. There is no proof before me concerning the other possessions of either the husband or wife at the date of the making of this paper writing, or at the date of the probate of it as the will of Alexander Bisson on the 22d day of December, 1859. The contention of the complainant is that the paper writing just referred to was a joint or mutual will, that revocability is an essential element of a will, and that Elizabeth had the right to and did revoke the same so far as it affected her and her property. The complainant points out that after the death of Alexander his wife, Elizabeth, married Dallier, and, through a conduit, conveyed all six lots to her husband, and subsequently, upon her death, was found to have made a will dated the 25th of February, 1863, devising all of her real estate to Dallier. She therefore claims that Elizabeth (Bisson) Dallier revoked the "joint and mutual will," as they term the paper of June 20, 1855, and transmitted the title (as they claim she had a right to do) to Dallier, through whom the title comes to the complainant. The defendant also contended that the paper of the 20th of June, 1855, was a joint or mutual will, but was not revocable.

Counsel did not produce to the court any direct authority, nor did the court in its own investigation find any direct authority in the state of New Jersey, concerning the matter of joint or mutual wills. There are references in some of the authorities to wills by two parties each in favor of the other, which are sometimes called "counter" or "reciprocal" wills. Duvale v. Duvale, 54 N. J. Eq. 581, 588, 35 Atl. 750 (Reed, V. C, 1896); Id. (Err. & App. 1898) 56 N. J. Eq. 375, 39 Atl. 687, 40 Atl. 440. See, on the general subject, 1 Jarman on Wills, 27; Schuler on Wills (3d Ed.) 456; 1 Williams on Executors, p. 10. And there are many cases which deal with agreements to make wills in favor of particular persons, and holding that equity will enforce a specific performance of such agreements. Duvale v. Duvale, supra, particularly collection of cases 56 N. J. Eq. at page 385, 39 Atl. at page 689; Drake v. Lanning, 49 N. J. Eq. 452, 24 Atl. 378 (Pitney, V. C, 1892); Kastell v. Hillman, 53 N. J. Eq. 49, 30 Atl. 535 (Pitney, V. C, 1894); Vreeland v. Vreeland, 53 N. J. Eq. 387, 32 Atl. 3 (McGill, Chan., 1895); Eggers v. Anderson, 63 N. J. Eq. 264, 49 Atl. 578, 55 L. R. A. 570 (Ct. of Err. 1901); Clawson v. Brewer, 67 N. J. Eq. 201, 58 Atl. 598 (Emery, V. C, 1904). A testamentary disposition contained in one writing and disposing of property held jointly is, I presume, precisely referred to as a "joint will"; whereas, the same docurnent if it refers to and deals with property held separately, would probably be more precisely termed a ...