"The matters in controversy are contained in exceptions to the allowance of five items in the final account of Ida E. Wagner, executrix of the estate of Elizabeth Walsh, deceased. Elizabeth Walsh, who was the mother of the executrix, died upon the 25th day of December, 1904, having first made her last will and testament, dated February 25, 1904, in and by which she left her personal property to her children, Ida E. Wagner, Clara J. Chadwick, Ellen M. Fennimore, Emma L. Deegan, and to a grandchild, Dora Meister. This will was admitted to probate on the 13th day of January, 1905, by the surrogate of the county of Camden, and letters testamentary were granted to said Ida E. Wagner and Clara J. Chadwick, who were named as executrices.
"At the time of her death, the testatrix was living with her daughter, Ida E. Wagner, and the latter had possession of the will. Shortly after her mother's death she denied to Clara J. Chadwick, her sister and coexecutrix, that there was a will or any money; but she subsequently admitted the existence of the will, and, as heretofore stated, it was probated. She still denied that there was any estate. Clara J. Chadwick thereupon instituted a suit against Ida E. Wagner in the Court of Chancery of this state for the purpose of setting aside certain assignments of mortgages, securities, and property made by the testatrix to said Ida E. Wagner. By reason of promises, designed, 1 am satisfied, for ulterior purposes, made by the latter to the complainant, said suit was not prosecuted. Thereupon Ellen M. Fennimore and Emma L. Deegan, two of the legatees named in Mrs. Walsh's will, filed a bill in the Court of Chancery against the above-named executrices. It set out the death of Mrs. Walsh, the execution and probate of her will, and the issuance of the letters thereon. It then alleged: That the testatrix was, at the time of her death, owner of certain securities, moneys, and furniture, the same as those set out in the final account in this proceeding; that because of advanced age, of feeble health, and weakened mental condition, and with slight expectation of life, she was indued by said Ida E. Wagner to go and live with her; and that the daughter, having secured the custody and physical control of the testatrix, who was wholly incapable of resisting the persuasions and entreaties of said daughter, the latter was fraudulently induced and unduly influenced, on or about the 1st day of April, 1904, to assign and transfer unto said daughter, Ida E. Wagner, without any consideration, all of the above-specified personal property. It further alleged that said daughter had reduced certain of the securities to cash, and that she refused to account for any of them.
"The prayer of the bill was that these assignments should be set aside, and that they, together with the rest of said personal property, be declared to be the property of and a part of the estate of the said testatrix at the time of her death, to be duly accounted for and administered. A decree pro confesso was taken against Clara J. Chadwick; but Ida E. Wagner filed a plea which alleged that for the assignment and transfer of all of said bonds and mortgages, shares of stock, and other personal property in the bill mentioned, good and valuable consideration passed from the said defendant to the said Elizabeth Walsh. Issue was joined, and the cause went to a hearing. It will be observed that the sole question at issue was the legality of the consideration, and that it related to all of the property named in the bill of complaint; it being the same property as that named in the final account in this proceeding. An examination of the testimony of Mr. Kaighn in the chancery suit discloses the fact that the testatrix wanted to assign this property to Mrs. Wagner, because she had a good home there, and that she intended to stay there the rest of her days, and that she wanted to turn those over to Mrs. Wagner on that account. Henry Wagner, the husband of Ida, attempted to show that the testatrix continued to live and be cared for by Mrs. Wagner until the time of her death; but his testimony seems to have made no impression other than that it 'was plainly introduced to bolster up a pretended consideration.' These were the only witnesses, and the vice chancellor who heard
the case held that the defendant had failed to sustain her plea, and that a decree would be advised setting aside the assignments and transfers of the property described in the bill of complaint, and the same decree to be held by the defendants as part of the estate of the testatrix to be administered by them as executrices. He intimated that, but for the fact that one party to the fund was not a party in the chancery proceedings, the accounting would have been required to be made in that court. Pennimore v. Wagner (Ch.) 64 Atl. 698. The final decree, although holding that the complainants were entitled to the relief sought and prayed for by them in their bill of complaint, does not specifically mention the sum of $1,000. It is, however, apparent that it was a part of the subject-matter in controversy, for it is named in the bill, and the plea distinctly includes it in the words and other personal property in the bill mentioned.' The pleas therefore, admit the possession of, and claim the ownership of, all of the bonds, mortgages, shares of stock, and other personal property in the bill mentioned, and the right of Ida E. Wagner thereto was the single question in issue. On appeal the decree of the Court of Chancery was affirmed, and Chief Justice Gummere, who wrote the opinion, said that: 'We concur in the view expressed in the opinion of the vice chancellor that the proofs therein specified do not sustain the plea.' Fennimore v. Wagner, 68 Atl. 230. For technical reasons an attempt was made to reverse the decree; but they were held of no avail because of the failure to prove the entire plea.
"Ida E. Wagner, in her account, the said Clara J. Chadwick having been discharged as an executrix, charges herself with the proceeds of the sale of three of said mortgages, with the principal and interest of three others, with the amount realized from the sale of the stock of the Camden Fire Insurance Company, with household furniture valued at $200, alleged to be in her possession, and with cash amounting to $1,000, alleged to be in her possession. She prays allowance for said household furniture, claiming that she had never received it; for said cash, claiming that she had no knowledge of it; for part of the proceeds from the sale of mortgages advanced and paid by her to the testatrix, amounting to $816.80. This is the Abigail F. Hugg mortgage with which she had charged herself. She further prays allowance for claim of Ida E. Wagner for furnishing said testatrix with a home the rest of her days according to contract, $6,920; with interest from May 4, 1904, to December 13, 1907, $806.18—total, $7,726.18. The other allowances prayed for are the amount paid for premium on executrix's bond for proctor's fee, and for commissions. The amount with which the accountant charges herself is $8,884.70, while the amount for which she prays allowance, exclusive of proctor's fees, is $10,166.44, thus leaving a deficit in the sum of $1,281.74.
"To all of the items for which allowance is prayed, except that for the household furniture, that for surrogate's bill, and that for proctor's fees, exceptions were filed by Ellen M. Fennimore and the administrator of Emma L. Deegan, deceased; said Ellen M. Fennimore and Emma L. Deegan in her lifetime being the complainants in the suit in chancery hereinbefore referred to. When the account first came on for hearing, objection was made to the introduction of any testimony upon the first three items excepted to for the reason that they were part of the subject-matter controverted in the chancery suit, and therefore res adjudicata. It was agreed, however, that the evidence should be heard and the matter disposed of upon final hearing. The doctrine of res adjudicata has been clearly defined in this state, and it is the law 'that the judgment of a court of competent jurisdiction on a question of law or fact, or on a question of mixed law and fact, once litigated and determined, is, so long as it remains unreversed, conclusive upon the parties and their privies, not only as to the particular property involved in the suit in which it is pronounced, but as to all future litigation between the same parties or their privies, touching the subject-matter, though the property involved in the subsequent litigation is different from that which was involved in the first.' 'All that is required in cases where the prior and subsequent litigations involve different things, to render the judgment in the first conclusive upon the parties in the subsequent, is that there shall be substantial identity in the subject-matter of the two, and that must always be the case, as is obvious where the judgment in the first rests on a decision of the same question substantially which...
