Kastell v. Hillman

• Citation: 30 A. 535,63 N.J.E. 49
• Parties: KASTELL v. HILLMAN et al.
• Decision Date: 10 November 1894
• Court: New Jersey Court of Chancery

30 A. 535

63 N.J.E. 49

KASTELL

v. HILLMAN et al.

Court of Chancery of New Jersey.

Nov. 10, 1894.

(Syllabus by the Court.)

Bill by Frank Kastell against Frank T. Hillman and others to set aside a deed. Judgment for plaintiff.

T. M. Moore, for complainant.

J. W. Griggs, for defendants.

PITNEY, V. C. Frank Kastell, the complainant, files this bill against his nephew, Frank T. Hillman, and his niece Meta Hillman, asking the court to set aside a deed of conveyance made by Philip Kastell, the father of the complainant and the grandfather of the two defendants, to the two defendants, dated the 22d of March, 1893. It covers about two acres of land, upon which is a dwelling, situate within the corporate limits of the city of Passaic, and on it are the dwelling and outbuildings constituting the homestead of the late Philip Kastell. He died on the 1st of April, 1893, nine days after the execution of the deed. By his will, executed on the 2d of October, 1891. and admitted to probate after bill filed, he had devised this homestead, with other lands, to his son, Frank, the complainant herein. The complainant rests his right to relief on two grounds: First. That the premises in question were so devised to him by his father in pursuance of a contract made between the two, many years before, by the terms of which his father agreed to so devise the premises to him in consideration of his living with him, attending to his business, and taking care of him during his lifetime; and he alleges that he performed the condition on his part. The second ground is that at the time of the execution of the deed his father had attained the advanced age of about 82 years, was very feeble in health, both in mind and body; that his mind was so far enfeebled as to render him incompetent to transact business of that character: and that the deed was procured from him by undue influence brought to bear upon him in his enfeebled condition by the two defendants, his grandchildren, who were members of his family at that time.

1. With regard to the first point, it seems to me that it is clearly sustained by the proofs. The devise itself is in these words "Third. I give, devise, and bequeath unto my son, Frank Kastell, my farm on which I now reside, situate in said city of Passaic, county and state aforesaid, containing about thirty (30) acres, with all the buildings, granaries, barns, stables, and outhouses thereon, together with all the household furniture, farming utensils, tools, and other things partaming to said farm; also, the horses, cattle, poultry, and other life stock, carriages, wagons, harness, and everything belonging thereto; also about ten (10) acres of salt meadow land, situate and lying in the county of Bergen, in this state. Fourth. This bequest to my son, Frank. I make in consideration of and for his services and assistance rendered to me and my estate by him up to the time of my decease, and is subject to the following charge: My beloved wife, Katharina, shall have as good and comfortable a home on this, my said farm, as she now has, during the remainder of her natural life, and, at her death, said farm, household furniture, etc., and salt meadow lands, shall be the property of my son, Frank, in fee simple." This clause is of itself evidence of the contract. In addition to that, the parol proof is abundant. Complainant himself swears that when he was a young man (he was 42 years of age when his father died) he wished to go away from home, and strike out in the world for himself,—learn a trade, or do whatever he might be able to do,—and that his father insisted upon his staying there, living with him, and helping him on the farm, and promised him, if he would do so, he would leave him, by will, the lands in question; and that he did so stay, relying upon his father's promise. The same thing is sworn to, in effect, by his sister Mrs. Anna Fells; also, by Mr. Totten and Mrs. Dankoff, neighbors. Then the division which the old gentleman had made, by will, of his property, was well understood by each member of his family. He was a German, who did not attempt to speak English, and understood it very imperfectly. The lands mentioned in the will were as follows: A little short of 10 acres in one body, bisected by Bloomfield avenue, leaving 3 1/2 acres on one side, on which was his dwelling, and a little short of 6 on the other, the whole located about a mile and a quarter west of the city of Passaic, and beyond the line of the Delaware, Lackawanna & Western Railway Company. It was within the corporate limits of Passaic, but the neighborhood was not built up or improved. In addition to this 10-acre tract was a tract of 13 7-10 acres, lying disconnected with and a short distance from it, and not bounding on any highway. It was used for farm land, and as waste sprouts or swamp. Besides this were the 10 acres of salt meadow, of trifling value. The old gentleman seemed to entertain the notion that the ownership of this land—about 33 acres in all-made him a landed proprietor, and as the complainant was his only son, he desired him to reside on it after his death, and perpetuate it in the Kastell name. Besides this property he was the owner of a block about 100 feet square, situate on a corner, in the city of Passaic proper, upon which were five houses, which were estimated at the value of $25,000, and rented for $200 a month. This last was subject to two mortgages of $1,000 each. He had also some building lots. Besides the complainant, he had two children, daughters,—one a Mrs. Anna Fells, who lived with her husband in Lowell, Mass., and the other, who died in her father's lifetime, had married a Mr. Hillman, the father of the defendants, and had borne nine children, of whom the defendants are two. The date of her death, I think, is not given. The block of buildings just mentioned were by the will divided between Mrs. Fells and the Hillman children. Some time previous to the making of the will above mentioned, but just how long does not appear, the testator had made a will substantially the same as this, except he had excluded from the benefits thereof three of the Hillman children. The contents of this will were known to all his children, and they (particularly Mrs. Fells), feeling that his prejudice against the three Hillman grandchildren was unjust, induced him to change it, and the will of October 2, 1891, was the result of a family counsel, and was satisfactory to all parties. In point of fact, the value of the two shares given to Mrs. Fells and the Hillman children was greater than that given to the complainant by the will. The old gentleman had always expressed a desire that his son, Frank, should have an heir, and in the year 1889 he married a young lady in the neighborhood, whom at first he took to live with his father and mother; but, fearing a difference between the mother-in-law and the daughter-in-law, he sent her back temporarily to her father's home, and then proposed to his father to build himself a house on a part of the homestead which had been devised to him, and his father agreed thereto, and in 1890 conveyed him a part of the homestead on the north side of Bloomfield avenue, upon which he erected a house in the summer of that year, and lived there with his wife, and attended to his father's business and affairs in the same manner as he had previously done, up to the time of his death. He had also accepted other employment, with his father's consent. He was, among other things, street superintendent of the city of Passaic for four years while living with his father, and swears—and he is uncontradicted therein— that he gave a portion of his salary, or whatever other money he earned outside, to his father. At any rate, his performance of the contract must, under the evidence and the language of the will, be held to be satisfactory to the father up to the date of the will. The attention paid by the son to the father from that time on until he died was precisely the same as it had been previously, and there is no proof that he ever made the least complaint to the complainant, or demand upon him to perform anything that he did not perform; but the tendency of the proofs is to the contrary. I must then hold, as a matter of fact, that the complainant did perform his part of the contract fully, and that the deceased was under legal obligation to perform his part, and to leave undisturbed the devise which he made to him on the 2d of October, 1891.

The wife of Philip Kastell died on the 14th of October, 1891, 12 days after the date of the will; and, just before her death, the defendant Meta Hillman, who had been at service in the city of New York, earning wages at $14 a month, came to live with her grandfather, and bargained with him to continue to work for him at that price,—$14 a month. The defendant Frank T. Hillman was a bricklayer by trade, and at about the same time took board with his grandfather at $4 a week, and worked at his trade in the city of Passaic. In the winter time, when very little mason work was being done, he did chores about the house, and looked after his grandfather, for his board. That continued up to the time the old gentleman died, with the exception that during the winter of 1892-93 Frank Hillman collected the old gentleman's rents in the city of Passaic; that is, he received them monthly from one of the tenants, to whom the others paid. There is little room to contend that the deed complained of has any valuable consideration. The consideration named is "one dollar and other good and valuable consideration," and then at the end of the description is this clause: "Part of the consideration of this conveyance is for past services rendered by the parties of the second part, and for future services to be rendered by them to the party of the first part during the remainder of his life, in taking care of him, and also in consideration of natural love and affection which he bears towards them."...