Newton v. Newton

• Decision Date: 30 September 1876
• Citation: 11 R.I. 390
• Parties: BATHSHEBA T. NEWTON et al. v. EDWARD F. NEWTON.
• Court: Rhode Island Supreme Court

11 R.I. 390

BATHSHEBA T. NEWTON et al. v. EDWARD F. NEWTON.

Supreme Court of Rhode Island.

September 30, 1876

W conveyed to E. an undivided half part of two lots of land and subsequently received from E. a bond in a penal sum of $4,000, giving W. the privilege at any time at his option within seven years from the date of the bond, to purchase the whole of said two lots for $8,000, provided that on such purchase E. should be by W. exonerated from al liabilities and losses past or future of a firm whereof E. was a member.

W. died without having availed himself of the option, and more than three years before the expiration of the time prescribed. E became his administrator.

The widow and children of W. filed a bill against E., charging fraudulent concealment of the bond. E. produced the bond, and denied in his answer the charges of the bill, whereupon the complainants asked leave to amend the bill by a prayer that E.'s title to the estates in question might be declared that of a mortgagee for $8,000; that the estates might be sold to satisfy E.'s claim, and that an account might be ordered: -

Held, that the option of purchase given to W. by the bond was neither a chose in action nor a transmissible right of property, but a personal privilege in W., and that on his death E. was freed from the bond.

Held, further, that a purchase under the option by the administrator of W. must, if made, be for and in the name of W.'s heirs; but as this might change the succession to W.'s property, W.'s administrator could not be allowed the option given W.

Held, further, that in no case could the exoneration required by the bond be given by the administrator.

BILL IN EQUITY. On motion to amend the bill. The facts are stated in the opinion of the court.

Francis Brinley & Charles C. Van Zandt, for complainants.

William P. Sheffield, for respondent.

DURFEE C. J.

This is a motion for leave to amend a bill in equity. The bill is brought by the widow and children of William Newton, late of Newport, deceased, against Edward F. Newton, administrator upon his estate. The bill sets forth that on the 4th day of February, 1847, William Newton conveyed to the defendant for $2,000 one undivided half part of a certain lot of land in Newport, and that on the 13th day of February, 1858, said William Newton conveyed to the defendant for $1,500 one undivided half part of a certain other lot of land in Newport. The bill further sets forth that there was among the personal property of William Newton which came into the hands of the defendant, in his capacity as administrator as aforesaid, as the plaintiffs have recently been informed, a certain bond or writing obligatory, executed by the defendant and delivered to William Newton, the purport of which was as follows, to wit: It recites the sales above mentioned, and binds the defendant under a penalty of $4,000 to fulfil an agreement by which he grants " the privilege to the said William Newton at any time, at his own option, for or within the term of seven years from the present date, to purchase the whole of said two estates for the sum of eight thousand dollars," & c., provided that at the delivery of the deed the defendant should be " fully exonerated from all liabilities, responsibilities, or losses, past, present, or future, in relation to the firm known as Newton Brothers," & c. The bond was dated February 13, 1858, the day of the second sale above mentioned. The bill further alleges that William Newton died September 24, 1862, and that therefore there remained three years and more to his legal representatives or heirs, within which time they could have purchased the whole of the estate, described in said bond, for $8,000, had either of the plaintiffs been aware of the existence of said bond. The bill charges that the defendant, neglectful of his obligation as administrator, fraudulently kept the bond a secret from the plaintiffs in order that said estates might vest in him by lapse of time, they having become of great value; and that as the defendant refuses to make discovery of said bond, the plaintiffs cannot proceed in an action or suit against him, which they desire and intend to bring. The bill prays a discovery of the bond and an injunction to prevent the defendant from selling the two estates aforesaid.

The defendant in his answer admits the making of the bond, which he says was executed in duplicate, one of the duplicate bonds being delivered to William Newton, and the other kept by himself. He produces the bond which he says was kept by himself, and denies that the bond delivered to William Newton ever came to his possession, or was fraudulently concealed by him. He further avers that William Newton died insolvent, and that the understanding between himself and William Newton...