Mullin v. Mullin

• Citation: 85 N.J.Eq. 531,96 A. 996
• Parties: MULLIN v. MULLIN et al.
• Decision Date: 06 March 1916
• Court: United States State Supreme Court (New Jersey)

96 A. 996

85 N.J.Eq. 531

MULLIN

v. MULLIN et al.

Court of Errors and Appeals of New Jersey.

March 6, 1916.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by William F. Mullin against Annie E. Mullin and others. From a decree for defendants, complainant appeals. Reversed, and record remitted.

Ralph E. Lum, of Newark, for appellant Michael J. Tansey, of Newark, for appellees.

SWAYZE, J. The complainant sought as administrator with the will annexed of Peter M. Mullin, deceased, to account in the Court of Chancery. An account was had before a master, and he appeals from the decree confirming the master's report. The fundamental question is whether he is chargeable with the profits of the business of an undertaker which was conducted by the decedent, complainant's father, in his lifetime and by the complainant since his death. The facts are as follows:

Peter M. Mullin died November 4, 1891. By his will he directed that his business be continued for the benefit of his wife and children under the direction of his wife and his brother Joseph J. Mullin, who were appointed executors and guardian of his children. He left eight children then living, of whom one has died, and a posthumous son, born April 24, 1892. The complainant, the oldest child was about 18. The widow, Annie E. Mullin, alone qualified as executrix. Upon her death in 1900, the brother Joseph J. renounced, and the complainant became administrator de bonis non. He had assisted his father in the business and continued the business after his father's death alone, or in connection with his brother Joseph L. Mullin. On September 24, 1895, after the complainant had attained his majority, a formal written agreement was made between the executrix, William F., and Joseph L. for the continuance of the business by William F. and Joseph L. in the name of the "Estate of Peter M. Mullin" for 1 year from October 1, 1895, subject to the right of the executrix to terminate the agreement on one month's notice. The family of Peter were to be maintained and educated from the net proceeds of the business. The profits after maintaining and educating the family were to be divided, three-sixths to William, two-sixths to Joseph, and one-sixth to the executrix. This arrangement did not prove satisfactory. Before the end of the year Joseph left and went into business for himself elsewhere. A new agreement was then made between the complainant and the executrix. This was verbal, and is said by the complainant in his bill to have been an agreement that the balance of the profits of the business remaining after the support and maintenance of the complainant's mother and the infant children should belong to the complainant in payment for his services. In his testimony the complainant said that the agreement was that he was to support the children out of the business, educate, clothe, and feed them until they became of age, the profits arising from the business were to be his, and the business was to be his after the children had arrived at their majority. The learned Vice Chancellor accepted the version given in the bill. We think, as will appear, that the practical result is not different whichever version is correct. The difference is only a natural difference in the recollection or statement of the effect of a verbal agreement, made many years ago, in a point which at the time was not considered of importance, and probably was not definitely in the mind of either party. The agreement was made after due deliberation and consultation of the executrix with counsel and with a brother of the decedent, and we see no reason to doubt the complainant's statement that he entered into the agreement reluctantly, and only at the earnest solicitation of his mother and the priest of the church he attended. The complainant was a young man, a year past his majority, who had proved his ability to conduct the business successfully for 4 years, who in that time had built up a good will for himself, who had another career of promise open to him, who had an interest in his father's estate, paid to him about the same time, large enough to furnish him with the small capital needed to carry on the undertaking business. He was giving up such prospects as he might have, and was binding himself to a contract which would last until his youngest brother came of age, 17 years later, when the complainant would be 40 years old. The contract was obviously very much for the benefit of the widow and minor children, since they secured an assurance of support and education until each child...