Fennimore v. Wagner

• Decision Date: 05 December 1907
• Citation: 68 A. 230,73 N.J.E. 367
• Parties: FENNIMORE et al. v. WAGNER.
• Court: New Jersey Supreme Court

68 A. 230

73 N.J.E. 367

FENNIMORE et al.

v. WAGNER.

Court of Errors and Appeals of New Jersey.

Dec. 5, 1907.

Appeal from Court of Chancery.

Bill by Ellen M. Fennimore and others against Ida E. Wagner to have certain property adjudged to be a part of the personal estate of Elizabeth Walsh, deceased. From a judgment for complainants (64 Atl. 698), defendant appeals. Affirmed.

Samuel H. Richards, for appellant Frederick A. Rex, for respondents.

GUMMERE, C. J. The bill of complaint in this cause was filed by two of the daughters of one Elizabeth Walsh, who were residuary legatees named in her will, against Ida E. Wagner, another daughter of Mrs. Walsh, and charges that a few months before the death of Mrs. Walsh, and while she was in feeble health and of weakened mental capacity, she was induced by the defendant, Mrs. Wagner, to take up her home with her; that she continued to live with Mrs. Wagner until her decease; that, while residing with her, Mrs. Walsh was fraudulently induced and unduly influenced by her to assign and transfer to her, without consideration, all of the personal estate which she (Mrs. Walsh) possessed, consisting of six bonds and mortgages aggregating $6,200, certain shares of capital stock of a fire insurance company worth about $860, household furniture worth about $200, and $1,000 in cash; and that such transfer was made after the execution of a will by Mrs. Walsh, which bequeathed all of her property equally to her daughters. The prayer of the bill is that all of the personal property so assigned to Mrs. Wagner should be adjudged to be a part of the personal estate of Elizabeth Walsh, deceased. The defendant, Mrs. Wagner, instead of meeting the charges of the bill by an answer, filed a plea to it, the only averment of which is that "for the assignment and transfer by Elizabeth Walsh to this defendant of the bonds and mortgages and shares of stock and other personal property in the bill mentioned good and valuable consideration passed from this defendant to said Elizabeth Walsh." The complainants replied by joining issue upon this plea.

The contention of the defendant, both in the Court of Chancery and also here, is that the complainants, by joining issue upon her plea, admitted its sufficiency as a complete defense to the case made by the bill, and that therefore, if the facts set up in her plea were proved by her, she was entitled, under the practice of the Court of Chancery, to a decree dismissing the bill upon the merits, without regard to whether or not those facts constituted a valid defense to the suit. The effect of taking issue upon a plea in bar of matters in pais is, as the defendant contends, entirely settled. Story, in his work on Equity Pleading (section 697), lays it down that: "If the plea is upon argument held to be good, or if the complainant admits it to be so by replying to it, the truth of the plea is the only subject of inquiry remaining, so far as the plea extends, and nothing but the matters contained in the plea as to so much of the bill as the plea covers is in issue between the parties; * * * and, if the defendant proves the truth of the matters...