Russell v. Russell

• Decision Date: 15 April 1904
• Citation: 129 F. 434
• Parties: RUSSELL v. RUSSELL et al.
• Court: U.S. District Court — District of New Jersey

129 F. 434

RUSSELL v. RUSSELL et al.

United States Circuit Court, D. New Jersey.

April 15, 1904

John H Hazelton, for complainant.

David J. Pancoast and Walter H. Bacon, for respondents.

ARCHIBALD District Judge. ^[1]

The purpose of this bill is to set aside an antenuptial agreement on the ground of fraud. The complainant, Lottie R. Russell is the widow of John Russell, late of Leesburg, N.J deceased, to whom she was married November 30, 1892, and who died July 20, 1897. Mr. Russell was 75 at the time of the marriage, and Mrs. Russell 50, and both had been previously married. Mr. Russell had no children living, but had three grandchildren; and Mrs. Russell had two adult sons, George R. and Grant Brown. By the antenuptial agreement, which was executed November 22d, a few days before the marriage, it provided that there should be paid to Herschel Mulford, as trustee for Mrs. Russell, out of the estate of her husband, within six months after his decease, the sum of $5,000, which was to be in lieu and satisfaction of dower, and a bar to any claim upon his personal estate, unless some part of it should be given to her by will. Mr. Russell was at the date of this agreement and at the time of his death a man of considerable wealth; having realty estimated at $105,000, and personal estate of about $117,000, or $222,000 in all. It is charged that the agreement was secured by him, not only by concealing from his prospective wife the extent of his property, but by actually misrepresenting its condition and value, and particularly by promising to provide liberally for her in his will, which he failed to do. A will was executed by Mr. Russell February 18, 1896, without the knowledge of his wife, while they were on a pleasure trip in Florida; and by it, in addition to the $5,000 named in the antenuptial settlement, he simply gave her 10 shares of stock in the Glassboro National Bank, of the value of twelve or fifteen hundred dollars. Mrs. Russell was very much disappointed when she found out after his death how little he had left her, and, upon complaint to the others interested in the estate, there was some talk of a liberal increase of it by amicable arrangement, but none was reached. The executors subsequently paid to the trustee $500 of the $5,000 called for by the agreement, and the trustee on December 16, 1897, turned this over to Mrs. Russell, which, after taking the advice of counsel, and being assured that it would not prejudice her, she accepted and receipted on account. Being notified by the trustee, later on, that the rest of the $5,000 was ready for her, but being required to execute a formal release, she declined to accept it; and, conceiving in the end that she had been overreached, on June 2, 1898, she filed a bill in the Court of Chancery of New Jersey to assert her rights. This bill was against the same parties who are respondents here, and, relying in substance on the facts which have been stated, it prayed that the antenuptial agreement should be decreed to be of no effect, and be delivered up to be canceled; that the promise of her husband to make a liberal provision for her should be specifically enforced, by paying to her not less than one-third of the net personal estate, in addition to the value of her dower in the realty; and that the will should be declared to have been in fraud of her rights, and be made null and void so far as it stood in her way. The respondents having answered, the case was heard by Vice Chancellor Grey, who on August 16, 1900, filed an opinion in which he advised that the bill be dismissed, and a decree was subsequently entered in accordance therewith. Russell v. Russell, 60 N.J.Eq. 282, 47 A. 37.

The case was considered by the vice chancellor as proceeding upon two grounds: First, to reform the antenuptial agreement so as to embody the undertaking by Mr. Russell to provide liberally for the complainant in his will; and, secondly, to set aside the agreement, as induced by misrepresentation and fraud, in order to make way for the claim of dower in the realty. As to the former it was held that the agreement, being in writing and complete in itself, could not be varied by an added term resting in parol, both on account of the established rule in this regard, as well as the fact that, being based on the consideration of marriage, the statute of frauds was an insurmountable bar; and, as to the second, that fraud in inducing the execution of the agreement, as made, was no ground for the specific performance of it, as not made. Recognizing, however, that relief for the complainant must come, if at all, by setting aside the agreement, so as to let her into her dower rights, and proceeding to consider the alleged fraud in its procurement in order to dispose of the whole case, it was pointed out that there was no misrepresentation by Mr. Russell as to its terms, which were perfectly plain and in accordance with what had been previously discussed; that Mrs. Russell took time to consider it, and submitted it to her sons for advice; that there was nothing inconsiderate in its provisions, having regard to the age and relative position of the parties, and the uncertain condition of some of Mr. Russell's property; and that there was no proof that it was executed by Mrs. Russell without full knowledge of the extent and value of his estate, nor any such discrepancy between that which was given her by the antenuptial agreement and will, and her dower rights, which were alone involved (there being an absolute right in the husband, by the laws of New Jersey, to dispose of the whole of his personal estate by will), as to raise the presumption that she was not fairly dealt with. Confirmatory of this view, it was noted that on December 22, 1897, more than four months after the will was proved, Mrs. Russell accepted $500 on account of her portion, and was under treaty to receive and invest the rest of it; the only explanation of this course being that she acted without the advice of counsel and was not disclosed.

From the decree so entered against her, Mrs. Russell appealed to the Court of Errors and Appeals, but the decision was affirmed. 63 N.J.Eq. 282, 49 A. 1081. On the question whether she was entitled to ingraft upon the antenuptial agreement the parol contract which she asserted that liberal provision should be made by the testator in his will, the same view was taken as by the vice chancellor. But with regard to setting the agreement aside for fraud, the court declared that it was not necessary to express an opinion, Mrs. Russell not being in shape to repudiate the agreement, having accepted $500 under it. 'It is entirely settled,' says Gummere, J., 'that a party to a contract cannot at one and the same time repudiate it, and retain a benefit from its partial execution. In order to entitle him to rescind, he must first restore what he as received under the contract, and thus put the other party to the agreement in his original position. * * * This the appellant has not done, and consequently does not stand in a position which entitles her to an annulment of the contract, even if it be true, as she alleges, that she was induced to enter into it by fraud on the part of her husband.

This decision was made August 23, 1901, and the present suit was instituted November 15 following; the complainant having meanwhile become a citizen of New York. The question whether the conclusion reached in the one is a bar to the other stands at the threshold of the case, and has first to be disposed of. It is earnestly contended by the respondents that it is, but upon that there is considerable to be said. It is to be noted, in the first place, that, while there was a prayer in the former case to have the antenuptial agreement set aside on account of the fraud alleged to have been practiced upon the complainant, yet, as pointed out by the vice chancellor, this was merely as the basis, and to make way, for the reformation of the agreement, and its specific enforcement in its modified form. Except as so subordinated, there was, in strictness, an inconsistency in the two positions. The complainant was not entitled to have the agreement established and enforced in the shape she contended it ought to be, and at the same time entirely annulled. It is, no doubt, true, however, that the vice chancellor did not stop at this, but, taking the avoidance of the agreement as a matter of independent and alternative relief, passed upon it, and decided adversely to the complainant's rights. If, then, the case stood on his rulings, she would be unquestionably concluded by them. But the appeal removed the case in its entirety to the higher court, and it is the judgment there rendered that must control, which has to be determined by the views expressed by the court in the opinion filed. As said in Larkins v. Lindsay, 205 Pa. 534, 55 A. 184:

A decree in equity is not, like a judgment at law, necessarily conclusive as to every matter which either was or might have been involved in the decision. Regard must be had to the reasons of the chancellor as well as his decree, for, to take the most obvious illustration, the case may have been disposed of on grounds of adequate remedy at law, or other reasons not involving the merits.'

Unless therefore, the rights of the complainant which are now sought to be litigated were directly disposed of in the final judgment rendered, as disclosed by the opinion of the Court of Errors and Appeals, they are not barred. This is squarely ruled in Turley v. Turley, 85 Tenn. 251, 1 S.W. 891, where it was held that a question left open by the opinion of the appellate court, although passed upon by the court below, could be re-examined in a subsequent suit where it was directly raised. It is true that there was...