Myers v. Weger

• Decision Date: 06 January 1899
• Citation: 42 A. 280,62 N.J.L. 432
• Parties: MYERS v. WEGER et al.
• Court: New Jersey Supreme Court

42 A. 280

62 N.J.L. 432

MYERS

v. WEGER et al.

Court of Errors and Appeals of New Jersey.

Jan. 6, 1899.

(Syllabus by the Court.)

Error to circuit court, Atlantic county; Ludlow, Judge.

Action by Charles Theis Weger and Frank L. Weger against Christine Myers, sole devisee of George Myers. Judgment for plaintiffs. Defendant brings error. Affirmed.

John J. Crandall and Charles A. Baake, for plaintiff in error.

Allen B. Endicott, for defendants in error.

ADAMS, J. The plaintiff in error, who was the defendant below, excepted to the admission of certain evidence, and to the refusal of the trial judge to grant a nonsuit, and has assigned error thereon. The assignments of error for refusal to nonsuit will first be examined. The allegation is that in two respects the plaintiffs below failed to prove a cause of action against the defendant, in order to determine this twofold question, it is necessary to examine the record and proofs. The declaration alleges that Christine Myers, the sole devisee under the last will and testament of George Myers, deceased, was summoned to answer the plaintiffs; complains, in the form of the common counts, that said George Myers, in his lifetime, was indebted to the plaintiffs; and concludes with this averment: "Yet the said George Myers, in his lifetime, and the said defendant, his sole devisee under his last will and testament, as aforesaid, since the death of the said George Myers, have not, nor have either of them, as yet paid the several sums of money, or any part thereof, to the said plaintiffs, but the said George Myers, in his lifetime, and the said defendant, have hitherto wholly refused, and the said defendant still refuses, so to do, although she is the sole devisee under the last will and testament of George Myers, deceased, as aforesaid, and has sufficient estate of the said George Myers, deceased, as his sole devisee, to pay the said sum of money herein alleged to be due the plaintiffs after the payment of his other debts," etc. It is well to notice that this allegation does not conform to precedent. The plaintiff, in his declaration, though he need not specify the lands descended, should aver distinctly that the defendant is devisee of lands of the deceased. 5 Went. Pl. 374. This is not plainly asserted in the language above quoted. It seems, however, to be naturally implied. The declaration, though informal in this particular, is not substantially defective. To this declaration the defendant pleaded the general issue, alleging that "neither she nor the said George Myers, now deceased, in his lifetime, did promise and undertake," etc. The plaintiffs offered in evidence, under objection, the record of the will of George Myers, from which it appeared that he devised all his real estate to his wife, Christine Myers. There was no proof as to the amount or particulars of the estate. The defendant offered no evidence on her behalf. The jury found a verdict for the full amount claimed in the schedule attached to the declaration. A general judgment was entered thereon against "Christine Myers, sole devisee of George Myers." One of the grounds assigned in support of the motion to nonsuit is that the plaintiffs adduced no evidence to prove that the defendant ever received any of the estate of the testator, George Myers, as his devisee. In other words, the proposition is that it was requisite for the plaintiffs, in order to charge the defendant, to prove that she took land by devise, and to specify the land. We think that the law is otherwise, and that upon this branch of the case the burden both of pleading and of proof rested not on the plaintiffs, but on the defendant, who, by not denying assets, admitted them. There was, therefore, no such defect in the plaintiffs' proof as the objection assumes, and the trial judge did not err in refusing to nonsuit for the cause so assigned. The conclusions thus briefly stated result from the following considerations: At common law an action lay against heirs on a specialty of the ancestor expressly binding his heirs. An heir might, by proper pleading, restrict his liability to the lands that had descended to him, and that he had not aliened before the commencement of the action. In such an action it was for the defendant, if he wished to limit his liability, to make disclosure by his plea as to lands descended. He might either admit or deny assets. If he denied assets,—which he did by pleading rien per descent,—and if he supported his plea by proof, the action failed. If he admitted assets.—which he did by specifying in his plea what lands he had inherited, —and if the plaintiff proved his case, a special judgment went against the heir, to be made only out of lands descended which had not been bona fide aliened before the commencement of the action. If he pleaded falsely in respect to assets,—as, for example, that he had inherited Black Acre, when in fact he had inherited Black Acre and White Acre,— the judgment was a general one, as if upon the debt of the heir. This was the rule, not to punish the defendant for not telling the truth, but because, as the record did not truly specify the lands descended, no accurate special judgment could be framed. So, if the heir allowed judgment to pass against him by confession, or non sum informatus or nil dicit, or upon any other matter or ground, without making disclosure as to assets, the plaintiff had judgment and execution, as he should have for the debt of the heir himself, if he had made the obligation. In the words of the reporter in Davy v. Pepys, Plowd. 438a, 440a: "If the heir is condemned upon any plea whatsoever, or by default, or without plea upon any cause whatsoever, it is the practice for the plaintiff to have execution of the body of the heir, or of his goods, or to have an elegit of his lands whatsoever, unless he confesses the debt, and shows the certainty of the lands descended." Lord Chief Justice Holt, in Smith v. Angel, 7 Mod. 44, says of Davy v. Pepys, "There is not a word in it but what is good law," and thus restates the rule: "Because there is no way for the heir to defend himself but by setting forth the truth,—what assets he has, where they lie, and to open the truth of the case to the plaintiff." In this condition of the law, parliament passed the statute known as 3 Wm. & M. c. 14, entitled "An act for the relief of creditors against fraudulent devises." The chief object of this enactment, and the only one that need now be considered, was to put devisees in the same category with heirs. The third section enacts, among other things, that the devisee "shall be liable and chargeable for a false plea by him or her pleaded in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended." The New Jersey statute entitled "An act for the relief of creditors against heirs and devisees," passed March 7, 1797 (Pat. Laws, p. 243; 2 Gen. St. p. 1679), followed the general lines of the English act, but enlarged the right of action. The first section enacts, among other things, that a devisee shall be liable in the same manner as any heir should have been, for not confessing the lands to him descended. This statutory language recognized and made applicable to devisees the rule that a defendant confesses assets if, by his plea, he neither admits nor denies them. The result is that in the case in hand neither the declaration nor the plaintiffs' proof was defective in this particular; that the defendant, by passing over the subject of assets, and pleading merely the general issue, admitted that she had received by devise lands sufficient to answer the plaintiffs' claim; and that the form of the judgment is correct. Upon this general subject the following cases may be consulted: Insurance Co. v. Meeker, 37 N. J. Law, 282; Fredericks v. Isenman, 41 N. J. Law, 212; Stone v. Todd, 49 N. J. Law, 274, 8 Atl. 300; Dodson v. Taylor, 53 N. J. Law, 200, 21 Atl. 293; Muldoon v. Moore, 55 N. J. Law, 410, 26 Atl. 892.

The other ground for nonsuit is thus stated in the fifth assignment of error: "Because it fully appears that the money was due to the legal representatives of Charles The is, and not to the plaintiffs; and, further, because these plaintiffs are not shown to have loaned the money, jointly or otherwise." In order that this may be intelligible, it is necessary to make a further statement of fact. This is an action to recover money lent. The testimony indicates that the plaintiffs carried on business in Philadelphia under the name of Weger Bros.; that on April 13, 1889, George Myers, the devisor of the defendant, as the result of a financial transaction at the office of Weger Bros., in which Charles T. Weger, one of the plaintiffs, participated, obtained a loan of $500; that the payment was made by a check to...