Reed v. Patterson

• Citation: 44 N.J.E. 211,14 A. 490
• Parties: REED v. PATTERSON et al.
• Decision Date: 23 May 1888
• Court: United States State Supreme Court (New Jersey)

14 A. 490

44 N.J.E. 211

REED

v. PATTERSON et al.

Court of Errors and Appeals of New Jersey.

May 23, 1888.

(Syllabus by the Court.)

Appeal from court of chancery from decree advised by MCGILL, Chancellor. For opinion below, see 10 Atl. Rep. 807.

Wilson Reed died April 23, 1882. By his will duly executed, and bearing date January 12, 1881, the testator, after devising a farm to his son Thomas, among other things provided as follows: "I give and bequeath to my beloved wife, Cornelia, all the interest and profits arising from the residue of all my personal or real estate, of whatsoever kind and wheresoever found, for her own personal use and benefit, or as much thereof as she may require or desire during the term of her natural life; and in case of her death before the children of my daughter, Sarah Patterson, should be of age, then so much thereof of the interest of said estate as, in the judgment of my executor, may be necessary for the support and maintenance of said children of my said daughter, Sarah Patterson, during their minority." The testator made a residuary deposition in these words: "It is my will and I do order that, after the decease of my beloved wife, Cornelia, that the residue of all my personal and real estate shall be equally divided between all the children of the aforesaid Thomas H. Reed and the aforesaid Sarah Patterson, to share and share alike; and my executor is hereby empowered, if in their judgment it will be for the advantage of either of my grandchildren, on attaining their majority, to pay to him or her what is their fair and just proportion or share of my residuary estate." Sarah Patterson died several years before the testator, leaving children surviving her: Charles, who was 16 years old when this bill was filed; Cora, who was then 14 years old; and James, whose age does not appear. Thomas had nine children living at the testator's death, eight of whom still survive, and two of whom are of full age. The testator made his son, Thomas H., executor, and his wife, Cornelia, executrix. The will was duly proved by the executor and executrix. The testator's widow died in 1884, and in May, 1885, Thomas, the surviving executor, filed an acccount showing a residuary estate in his hands, after payment of debts, expenses, and allowances, amounting to $23,747.84. In December, 1886, Charles and Cora, two of the minor children of Sarah, filed this bill, by their guardian and next friend, against the surviving executor. It charges that the complainants are minors of tender years, and unable to provide for their own support and maintenance, and are dependent on the charity of relatives therefor; their father, Henry J. Patterson, having abandoned them more than six years ago, without means of subsistence or protection. The bill further charges that, by the terms of the testator's will, the complainants are entitled to maintenance and support out of the income of the entire estate that remained in the hands of the executor at the time he filed his account. It alleges that the executor refuses to concede that right, and that he has been paid nothing for the complainants' support except $456, which he paid to their guardian, being the interest on the complainants' share of the residuary estate. The prayer of the bill is for a decree that the complainants are entitled to such sums of money as will be sufficient for their support, maintenance, and education, and for a reference to ascertain the circumstances of the complainants, and their present necessities for support and education. Thomas H. Reed, the surviving executor, was the only party defendant. James Patterson, the other son of Sarah Patterson, and the eight surviving children of Thomas H. Reed, were not made parties. No process was issued, nor was any answer filed. In lieu of process and answer, the following stipulation was filed: "The issuing and serving of process in the above case waived, and also waived the right to file answer. The facts stated in the said bill are admitted; it being the understanding, intention, and desire of the parties, both complainants and defendants, that the will of Nelson Reed, dec'd, be construed so as to ascertain by final decree the powers of the defendant as executor, and the rights of the complainants." This stipulation was signed by Mr. Winfield as solicitor of the executor.

In this situation the case was brought on for a hearing by the complainant ex parte, and an interlocutory decree was made in conformity to the prayer of the bill, and directing a reference to a master to ascertain whether the complainants had any means of support, and, if any, how much, and what amount of expenditure theretofore, since the death of the testator's widow, was and now is necessary for their support, maintenance, and education to be paid out of the residuary estate aforesaid. At the hearing before the master, depositions were taken, and by his report the master certified that the complainants had no means of support except under the testator's will; that the income of the testator's residuary estate was amply sufficient for their support, education and maintenance; that, since the death of the testator's widow, there had been expended, for the support, maintenance, and education of Charles, the sum of $332.62; and for the support, maintenance, and education of Cora the sum of $883.18; and that $5 per week for board, and $100 a year for clothing and expenses, for Charles, and $4 a week for board for Cora, and $100 a year for other expenses, would be a reasonable allowance. The master also certifies the reasonableness of these allowances, in view of the fact that the residuary estate of the testator amounted to the sum of $23,747.81, in the hands of the executor, and was ample and sufficient to provide for the complainants in a liberal manner. At the hearing before the master, the defendant appeared personally, and by the solicitor who signed the stipulation annexed to the bill, and, after the report was made, filed exceptions thereto. After hearing upon the exceptions, and the chancellor's opinion overruling the same, but before any order overruling the exceptions was signed or a final decree was made, the defendant presented a petition setting out that he had no knowledge, notice, or information that the said suit had been commenced or was pending until after the interlocutory decree construing the will was made, and that the appearance, waivers, and admissions by the solicitor was made, signed, and entered without the authority, knowledge, or consent of the petitioner; that in April, 1886, he had an interview with Mr. Winfield, in which the difference between the petitioner and the guardian of the complainants was talked over, and the petitioner stated that he was ready and willing to pay over to the complainants' guardian their shares of the principal of the residue of the estate, and that he instructed Mr. Winfield to see if that could not be brought about; that nothing passed between them in relation to the manner in which that result should be reached; that nothing was said about a suit in chancery being necessary therefor, and that the petitioner did not know that a suit was or would be necessary; that Mr. Winfield must have utterly misconceived and misunderstood the petitioner, or he could not have signed the consent and appearance, and made the admissions he did, as petitioner's solicitor; that the petitioner, when informed of the interlocutory decree, had an interview with Mr. Winfield, and complained of the unauthorized manner in which the affair had been managed; that he was told, in reply, that there would be a chance to take proofs before the master, and that there the petitioner's case could then be brought out; that the petitioner would have produced proof before the master, including the construction of the testator's will, but he understood that it could be brought before the chancellor upon exceptions to the master's report; that he was surprised to learn, as he did at or about the time of the hearing upon the master's report, that he could not then be heard upon the construction of the will, but only upon questions arising or incidental to the report of the master; and that it was at this time that he first learned how he had been brought before the court, and the nature, particulars, and character of the admissions made in his behalf. The petition avers that the petitioner is aggrieved by the decree construing the will, in that it decided that the complainants are entitled to support, maintenance, and education out of the income of the entire residuary estate of the deceased, irrespective of the discretion conferred upon the petitioner by the testator, and irrespective of the rights of the other grandchildren of the testator, and of the right of the petitioner to divide the principal of the residuum among the grandchildren of the deceased, or to give to such of them as have or shall come of age their shares at any time after the death of the testator's widow; and also avers that the other child of Sarah Patterson and the children of the petitioner were necessary parties to the suit. The prayer of the petitioner is that the decree construing the will, the order of reference, and all proceedings subsequent thereto, be set aside, and that the petitioner be allowed to plead, answer, or demur to said bill upon such terms, etc. Upon this petition application was made to the chancellor to open the proceeding, and allow the defendant to present his case. The application was denied. The petition was dismissed, with costs. An order was made confirming the master's report, and a final decree signed, directing 'the payment to the guardian of the complainants of $1,185.80, the aggregate of the expenses incurred theretofore for the support, maintenance, and education of the complainants, deducting the sum of $456, already paid by the defendant, and directing the payment by him of the weekly and yearly...