Leuppie v. Osborn's Ex'rs

• Decision Date: 07 June 1894
• Parties: LEUPPIE v. OSBORN'S EX'RS.
• Court: New Jersey Court of Chancery

29 A. 433

52 N.J.E. 637

LEUPPIE

v. OSBORN'S EX'RS.

Court of Chancery of New Jersey.

June 7, 1894.

(Syllabus by the Court.)

Action by Jacob Leupple against the executors of Allan Osborn, deceased. Defendants move to dismiss the bill. Granted.

Frank Durand, for complainant. Halsted H. Wainwright, for defendants.

VAN FLEET, V. C. The object of this suit is to establish an equitable debt and enforce its payment. The complainant rests his right to the relief he asks on the following facts: Allan Osborn died in March, 1893, leaving a will, which has been admitted to probate, and by which he directs that all his just debts should be paid as soon as could be conveniently done after his death. For several weeks prior to his death, Mr. Osborn was so weak and helpless that he was unable to sign his name or to give any attention to any business. Before becoming so, he was always possessed of ready money, and provided well for his family, and it was his custom to pay cash for his family supplies. A short time prior to his death, the funds which he had placed in the hands of his wife became exhausted, and he, being unable, in consequence of his helplessness and sickness, to provide additional means, and his wife being in need of money for the support of his family, applied to the complainant for a loan of $100, to be expended for that purpose. The loan was made, and the money was expended in the purchase of such things as were necessary for the support of Mr. Osborn's family. Since Mr. Osborn's death, the complainant has requested the executors of his will to pay him, and they have refused. This suit is brought to compel payment. The defendants move the dismissal of the bill, on the ground that the case made by it does not entitle the complainant to relief.

The complainant contends that, as the money which he loaned to the testator's wife was spent for the support of the testator's family, he has a right, according to a well-settled rule of equity jurisprudence, to be subrogated to the rights of those who provided the necessaries, and to have his debt enforced in equity against the testator's estate, as they might have done at law, if the money which he loaned had not been used to pay for them. In England it is settled by authority, both ancient and modern, that when a husband has deserted his wife without making provision for her support, and a third person advances money to her, which she uses to obtain necessaries, an equitable debt is thereby created which may be enforced against the husband. The first reported case in which this principle was laid down is Harris v. Lee, 1 P. Wms. 482, decided in 1718. There a husband had twice given his wife "the foul distemper," in consequence of which she left him, and went to London to be cured. Before going, she borrowed money to pay doctors and for necessaries. The husband subsequently died, leaving a will by which he devised land to trustees for the payment of his debts. On a bill by the person who made the loan, it was held that he was entitled to recover. Sir Joseph Jekyll, M. R., in deciding the case, said: "Admitting the wife cannot at law borrow money, though for necessaries, so as to bind the husband, yet, this money being applied to the use of the wife for her cure and for necessaries, the plaintiff that lent this money must, in equity, stand in the place of the persons who found and provided such necessaries for the wife. Lord Campbell, in the subsequent case of Jenner v. Morris, 3 De Gex, F. & J. 45, 52, in trying to give the reason why equity, in such a case, subrogated the lender to the rights of the persons who provided the necessaries, said: "It may possibly be that equity considers that the tradespeople have, for valuable consideration, assigned to the party who advanced the money the legal debt which would be due to them from the husband on furnishing the necessaries." So far as the Reports show, no attempt was made to enforce the principle established by Harris v. Lee from 1718, when that case was decided, until 1849, when the case of May v. Skey, 16...