Hall v. Otterson

• Decision Date: 20 March 1894
• Citation: 28 A. 907,52 N.J.E. 522
• Parties: HALL v. OTTERSON et al.
• Court: New Jersey Court of Chancery

28 A. 907

52 N.J.E. 522

HALL

v. OTTERSON et al.

Court of Chancery of New Jersey.

March 20, 1894.

Suit by Sarah M. Hall against Andrew Otterson and others to set aside a deed of trust.

Barker Gummere and William M. Gummere, for complainant. Peter V. Voorhees and Frank T. Lloyd, for defendants.

On Bill, Answer, Replication, and Proofs in Open Court.

GREEN, V. C. Samuel Haines, late of the county of Burlington in this state, who departed this life about the year 1835, was seised in his lifetime and at his death of a considerable estate, including the lands and premises in controversy in this suit, being a farm at Moorestown, N.J.He left, him surviving, his widow, since deceased, and two daughters, Rebecca B. and Sarah M., his only children and heirs at law. Sarah M. Haines, on or about the 9th of June, 1849, conveyed all her undivided one-half part in the premises in controversy to one John M. Kaighn, his heirs and assigns, in trust, among other things, to convey all or any part thereof whenever the said Sarah M. Haines, whether feme covert or feme sole should in a specified manner direct Sarah M. Haines, on or about the 27th day of June, 1849, intermarried with one Samuel W. Hall, and on August 31, 1852, together with her husband, conveyed all her equal undivided one-half part of the premises to her sister, Rebecca B. Haines, and afterwards, on or about the 5th of December, 1857, John M. Kaighn, trustee as aforesaid, by direction of the said Sarah M. Haines granted, ratified, and confirmed the aforesaid conveyance of the said undivided half in and to the said Rebecca B. Haines, who, by reason of the said conveyances and her inheritance from her father, became the sole owner in fee of the premises. On or about the 1st of October, 1850, Rebecca B. Haines intermarried with one James Otterson, Jr., and on March 2, 1858, a child was born of the marriage; it lived only 27 days. James Otterson, Jr., was a lawyer of prominence in Philadelphia, and, as the evidence shows, was intrusted by his wife with the entire management of her property and affairs. February 25, 1858,— that is, six days before the birth of the child,—Otterson and his wife, for a nominal consideration, executed a deed conveying the premises in controversy, being a farm at Moorestown, N. J., to James E. Gowen on various trusts.

Mrs. Otterson had considerable other property, real and personal, and I do not think the provisions of the trust deed, other than the clause claimed to contain a power of revocation, are justly open to severe criticism as unreasonable or improvident. It is true that by them the husband acquired control of the wife's estate during his life, but that is no more than would be expected from a loving and devoted wife to an affectionate and attentive husband. By the insertion, however, in the clause referred to of the words "or survivor of them," he was enabled to defeat what I think appears to have been the intention of his wife; namely, that the property should, in the event which has happened, descend to those in whose behalf this suit is brought. After the trust as to the property during the lives of both husband and wife, there follow provisions, stripped of their technical phraseology, substantially that the wife, at any time during her life, might appoint to whom all or any part of the premises should go after her decease and the decease of her husband; that, if she should not by will so appoint, then he, at any time during his natural life, might by will dispose of the premises to whomsoever he might choose, and, if neither of them should dispose of the premises by will, then the trustee should hold the farm for the right heirs at law of Rebecca, and by good conveyance convey the premises to the said right heirs of Rebecca in fee, in such shares and proportions as the said heirs would have been entitled to had Rebecca died intestate. Then follows the clause providing for the revocation of the uses and trusts declared in the deed, and for reconveyance, but which revocation could only be made by James Otterson, Jr., and Rebecca jointly during their lives, and by the survivor of them, with the proviso that Otterson, in the event of his surviving his wife, was not to have power to defeat any testamentary devise or appointment which Rebecca might make in her lifetime. Mrs. Otterson died March 10, 1863, intestate, leaving her husband, but no issue, her surviving, and the complainant, Sarah M. Hall, her only sister and sole heir at law. James Otterson, Jr., the husband, took possession of the farm and continued to occupy it until his death, September 24, 1890. The deed of trust was not recorded until January 22, 1864, six years after its date, and one year after Mrs. Otterson's death. Between the time of Mrs. Otterson's death and the record of the deed, Gowen, the trustee, on Otterson's revocation of the trust and demand therefor, made a deed in fee of the premises to James Otterson, Jr., and on February 16, 1885, Gowen died. The deed from Gowen to Otterson was also recorded January 22, 1864. Otterson in his lifetime conveyed several portions of the property to various individuals, many of whom erected buildings on the parcels so conveyed. On Otterson's death a paper was found, signed by him, but not in the presence of witnesses, so as to be effectual as a will under the statute, by which he attempted to devise the farm in question to the children of the complainant. In consequence of its defective execution, he died intestate as to the real estate, leaving no issue, but several brothers and sisters, his only heirs at law, who thereupon took possession of the property, and afterwards, by deed dated November 13, 1890, conveyed the premises to Charles H. Otterson in trust; which deed, it seems to be admitted, was made for convenience in making title to the lands. Sarah M. Hall, the complainant and sole heir at law of Rebecca B. Otterson, brought an action of ejectment three months after Otterson's death, and on the 10th of January, 1891, filed the bill in this cause to set aside the deed of trust. Otterson died insolvent, so much so that the value of this land is necessary to pay his debts, and the contest in the case is therefore practically between the complainant, as the heir at law of Mrs. Otterson, and the creditors of James Otterson, Jr. The deed in question was made prior to the birth of the child and subsequent to the married woman's act of 1852. Nixon, Dig. (4th Ed.) 547.

This deed was a voluntary conveyance on the part of Mrs. Otterson. She had inherited the property in question from her father, who died in 1835, when she was three years of age. She held it and the rents, issues, and profits thereof, after her marriage in 1856, under the act of 1852, "as her sole and separate property, as if she was a single female." At the time of the conveyance attacked, her husband had no present estate in her lands. He was not tenant by the curtesy initiate, not only because the act of 1852 prevented his acquisition of that estate (Porch v. Fries, 18 N.J.Eq. 204), but also because no issue of the marriage had yet been born alive, nor for the same reason had he "obtained an inchoate right which, on his wife's death, he surviving, would bloom into a freehold" (insurance Co. v. Barracliff, 45 N.J.Law, 543, 550). In Shurmur v. Sedgwick,

24 Ch. Div. 597, Vice Chancellor Bacon held that the relinquishment of a possible estate by the curtesy did not render a deed of settlement not voluntary, and void as against a mortgagee, under 27 Eliz. c. 4, § 1. Speakman v. Tatem, 48 N.J.Eq. 130, 21 Atl. 466, affirmed on appeal, 50 N.J.Eq. 484, 27 Atl. 636, recognizes that the husband has some inherent marital rights in his wife's estate, which are not denned, which he may relinquish in a deed of settlement, of sufficient moment to give him the right to hold the trustee to the discharge of his duty. But in this case any such interests were not given up by Mr. Otterson, who by the terms of the trusts secured for his life every right in his wife's property which he could possibly have exercised over it as her husband. The rule of equity that "he who bargains, in a matter of advantage, with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence" (Gibson v. Jeyes, 6 Ves. 266), applies with peculiar force to a transaction by which a husband secures from his wife a portion of her estate. The most dominant of all relations is that of the husband over the wife. There are, of course, exceptional cases when the will of the woman may control. The relation is so close, the trust of the wife so absolute, her dependence so entire, it may be, her fear so abject, while the dominion of the husband is so complete, his influence so insidious yet so controlling, that equity regards all such transactions with a jealous care, and subjects them to the severest scrutiny. The greater the affection, the more submissive the dependence; the stronger the trust, the more liable is the wife to be subject to the control of the husband, and the more vigilant should the court be in protecting the weak. Farmer v. Farmer, 39 N.J.Eq. 211, 216; May, Fraud. Con v. (Text Book Series) 483; Black v. Black, 30 N.J.Eq. 215, 219; Boyd v. De La Montagnie, 73 N. Y. 502; Weeks v. Haas, 3 Watts & S. 520; Campbell's Appeal, 80 Pa. St. 298; Darlington's Appeal, 86 Pa. St 512; McRae v. Battle, 69 N. C. 98; Witbeck v. Witbeck, 25 Mich. 439; Smyley v. Reese, 53 Ala. 89; Shaffer v. Kugler (Mo. Sup.) 17 S. W. 698. Chief Justice Gibson says, in Watson v. Mercer, 6 Serg. & R. 49, with reference to transfers obtained from the wife for the purpose of vesting the estate in the husband: "What honest mind would feel regret that, in the hurry of accomplishment, some circumstance, merely formal, was omitted by which the wife and her family were rescued from his rapacity?" This deed was executed at a critical period of Mrs. Otterson's life. She was in...