Hill v. Hill

• Citation: 62 N.J.L. 442,41 A. 943
• Parties: HILL v. HILL.
• Decision Date: 14 November 1898
• Court: New Jersey Supreme Court

41 A. 943

62 N.J.L. 442

HILL

v. HILL.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1898.

(Syllabus by the Court.)

Error to supreme court

Ejectment by Charles C. Hill, executor of the will of Edward F. Hill, deceased, against Forence Hill, to recover possession of the mansion house. The cause was tried before a justice of the supreme court sitting as a jury. He denied a motion to nonsuit, and plaintiff had judgment, and defendant brings error. Affirmed.

Aaron V. Dawes, for plaintiff in error.

S. G. Naar, for defendant in error.

VREDENBURGH, J. The testator, by his will, dated January 8, 1897, after bequeathing to his wife (the defendant below) all the furniture and household goods in and about his house, and after making a trifling gift to his brother, devised and bequeathed to his brother all his real and personal property not above disposed of, by the following language, viz.: "In trust, nevertheless, the same to be Invested, as fast as realized, on bond and mortgage on property worth double the value, the interest of which is to be paid to my wife, Florence Hill, for her own use and disposition during her natural life or during her widowhood; at her death, or if she shall again marry, the said Interest shall be used, at the discretion of said trustee, for the support and education of my daughter, Edna May Hill, until she arrives at the age of twenty-one years, at which time the whole amount of said trust fund shall be paid to her; and in case my daughter shall die before my wife, without leaving a child or children, or any descendant of any child or children, her surviving, then the trust fund is to be equally divided between my said wife and my brother, Charles C. Hill, or his heirs. The above bequest to my said wife is hereby made to be by her received in lien of her dower in my estate." By a subsequent clause, testator appointed his brother executor, and authorized him to sell and convey all the lands of which he (testator) should die seised. Under this will, it is entirely clear that the statute respecting the filing of a written dissent by the widow (2 Gen. St. p. 1278, § 16) had no operation, and the widow was bound to elect between its provision for her and her dower right (Griggs v. Veghte, 47 N. J. Eq. 180, 19 Atl. 867, and see cases collected in opinion of the chancellor In Helme v. Strater, 52 N. J. Eq., on page 599, 30 Atl. 333). That the statute is without effect in this case is obvious for two reasons: First, because the will expresses the testator's intent that its provision for the wife is made in lieu of dower; and, second, because the devise is not to the wife herself, but to another in trust for her. Van Arsdale v. Van Arsdale, 26 N. J. Law, 404. This was the construction placed upon this statute by the supreme court in 1857, for reasons given by that court, which seem conclusive of its correctness, and it should remain undisturbed. It results that the only question before the trial court to be determined on the motion to nonsuit was whether the facts in evidence, prima facie, constituted an election by the widow to accept the provisions of the will in lieu and instead of her dower. The executor had proved that after the probate of the will, and the personal effects of testator had been inventoried, the defendant had taken possession of them with his (the executor's) assent, and that he had also paid over to her the sum of $248 of rent collected by him from the tenant who occupied the saloon, in which the testator had formerly conducted his business, adjoining the house in controversy. It seems to me that the burden of proof was then thrown upon the defendant to rebut the legal presumption arising from these facts that she had made her election. She had, upon her defense, the opportunity to prove that she had not in fact received or accepted the property or rent, or, if she had, that she had not fairly and understanding made her election to take under the will, or that she had made it under a mistake of either law or fact.

The defendant is not estopped by the judgment against her from asking relief in a court of equity upon equitable terms in case her election to accept the provisions of the will was made under a mistake as to her rights, unless the situation has so changed since her election that it cannot be done without prejudice to the subsequently acquired rights of others. Macknet v. Macknet, 29 N. J. Eq. 54. In Wake v. Wake, 1 Ves. Jr. 335, a widow who was bound to elect between the provisions of her husband's will and her dower, and who had received a legacy, and also an annuity under the will for three years, upon accounting for the legacy and what she had received from the annuity, was permitted to sustain her bill in equity for her dower. Courts of equity have advanced still further in the direction of relievlng parties who hold rights superior to the will from the consequences of hasty or ill-advised acceptance of property given them by the will, and, indeed, from their election to take by the will, and have held that the doctrine of forfeiture will not be applied to such cases, but that the principle of compensation, as opposed to that of forfeiture, will be enforced. 1 Jarm. Wills ...