Wilkinson v. Sherman

• Decision Date: 13 August 1889
• Citation: 45 N.J.E. 413,18 A. 228
• Parties: WILKINSON et al. v. SHERMAN et al.
• Court: New Jersey Court of Chancery

18 A. 228

45 N.J.E. 413

WILKINSON et al.

v. SHERMAN et al.

Court of Chancery of New Jersey.

Aug. 13, 1889.

(Syllabus by the Court.)

Action to set aside a deed and to compel a reconveyance of the property.

Barker Gummere, for complainants. John R. Emery, for defendant George D. Sendder.

MCGILL, Ch. George Dill, late of Trenton, in tins state, died in January, 1857, leaving his last will, bearing date on the 6th day of May, 1856, by which he devised to William P. Sherman, "his heirs and assigns," a house and lot on State street, in the city of Trenton, then occupied by the testator's son John, in trust "for the following, and no other, uses and purposes, to-wit: He and they are to permit my son John to occupy and enjoy the same or to lease it, and receive the rents, issues, and profits to his own use (he keeping the same in repair, and paying all legal taxes and assessments thereon) during the continuance of the joint lives of my son John and his present wife. Whenever said joint lives shall be terminated, if said termination shall be occasioned by the decease of my said son John, said trustee, his heirs or assigns, is immediately to convey said real estate to my daughter Elizabeth and my grandson Frederick, their heirs and assigns, as tenants in common, in equal moieties; or, if either of them be then dead, to convey the whole of said real estate to the survivor, her or his heirs and assigns, forever; or, if both be deceased, then to convey said real estate in fee simple to the person or persons who may at that time be the heir or heirs at law of the said Frederick, in the same proportions as the said heirs—if more than one—would take by direct inheritance from said Frederick. But, if the termination of said joint lives be occasioned by the decease of the present wile of my son John, then said trustee, his heirs or assigns, is immediately to convey said real estate to my said son John, to be held by him, his heirs and assigns, forever." The testator also gave specified real and personal estate to his daughter Elizabeth, who was unmarried, and other specified real estate to his daughter Sarah, the wile of Ogden D. Wilkinson, during the joint lives of herself and her son Frederick, and provided that when one of them should die the survivor should take the property in fee. The residue of his estate, consisting entirely of personalty, he gave to his daughter Elizabeth, his grandson Frederick, and his friend William P. Sherman, in equal shares, the share of William P. Sherman to be upon a trust in all essentials, so far as the testator's son is concerned, similar to the trust respecting the house and lot on State street, in which the son then resided. On the 28th of January, 1875, Frederick Wilkinson executed to his uncle, John Dill, a deed which recited that for and in consideration of one dollar to him paid he had "granted, bargained, sold, aliened, remised, released, conveyed, and confirmed," and thereby did "grant, bargain, sell, alien, remise, release, convey, and confirm" to his uncle, and to the uncle's heirs and assigns, forever, the house and lot on State street, devised in trust as above mentioned, declaring therein his intention to be "to vest in and convey to the said John R. Dill, his heirs and assigns, all the interest and right to said premises which he may have acquired under and by virtue of said last will and testament of George Dill, deceased, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, and right of property, possession, claim, and demand whatsoever, as well in law as in equity." The deed contains no express covenants. In October, 1880, and while his wife yet lived, John Dill, the testator's son, died. In the absence of the deed above referred to, this event, with the previous death of Elizabeth Dill, the testator's daughter, would throw the equitable fee in the land described in the deed upon Frederick Wilkinson, and entitle him to a conveyance from the trustee. John Dill left a will by which he devised all his estate to his wife, Catharine. Upon his death his wife, Catharine, took possession of the house and lot in question, and continued in that possession until her death, in 1886. By her will she directed that the property be sold by her executor, the defendant George D. Scudder, and that the proceeds of sale be divided among beneficiaries named in the will. In 1887, after the death of Catharine Dill, the complainants, who are the children and heirs of Frederick Wilkinson, commenced this suit to compel a conveyance of the legal title of the house and lot on State street to them. The executor and beneficiaries under the will of Catharine Dill, and those in whom the legal title to the land rests, are made defendants to this suit. The deed of January 28, 1875, from Frederick Wilkinson to John Dill, is assailed upon triple grounds: First, that it did not convey the equitable fee afterwards acquired in the land; second, that Frederick Wilkinson did not possess capacity to make the deed; and, third, that the deed was the product of undue influence upon Frederick Wilkinson by John Dill.

1. It is insisted that this deed conveyed only the estate that Frederick Wilkinson had in the property at the deed's date, that is, the estate he then "may have acquired" in virtue of his grandfather's will, and that such estate was but a possibility, and not the vested estate in fee that was acquired five years later. The deed conveyed Wilkinson's "right to the property;" that is, the contingent right he had, out of which a substantial estate might grow. This, being a mere possibility, could not, otherwise than by estoppel at the common law, be assigned, (4 Kent, Coram. 260; Challis, Real Prop. *58; 3 Washb. Real Prop. 370;) but by our statute (Revision, p. 167, § 82) since 1851 it could be conveyed, assigned, or charged by deed or will, provided the contingency was not as to the person in whom the future estate should vest. Because the assignment of a mere possibility was not recognized by the common law, the future estate, upon the happening of the contingency,—though in fact the right to it had been assigned,—went to the grantor and the assignee's only protection was in that which would estop the grantor from asserting such after-acquired title. By our statute the assignment of the contingent right to the future estate is made legal, and, in consequence, the future estate, when it comes, follows the right and vests in him who owns that right. It never becomes after-acquired property in the grantor of the right, and hence, if the present contingent right be fully transferred, that will be sufficient to secure the after-acquired estate to the grantee without invoking the aid of that which may work an estoppel. I think that this deed sufficiently conveyed all the contingent rights that Frederick Wilkinson had in the property, and that, therefore, under the view I have taken, it is not necessary to consider whether the deed contains that which will estop him or his heirs from asserting an after-acquired title. The contingent right assigned by the deed in question is not within the proviso of the statute. Frederick Wilkinson was to take an undivided half in fee upon the happening of two contingencies: First, that John Dill should die before his wife; and, second, that Frederick Wilkinson should survive him. In addition to this, the happening of the death of Elizabeth Dill before her brother John would give Frederick the whole property in fee, instead of a moiety of it. The person who was to take, Frederick, was certain. That which was uncertain and dubious was the happening of the deaths in the order necessary to give him the estate. Sir William Blackstone (2 Bl. Coram. 169) defines the case of limitation to a dubious and uncertain person by the illustration of a limitation to A. for life with remainder to B.'s eldest son (then unborn) in tail. There the person was uncertain, because it could not be said that there would ever be a son of B. He further (page 170) defines certainty of person and uncertainty in event by instancing the limitation of land to A. for life, and, in case B. survives him, then the remainder to B. in fee. B. was certain, but the event of his surviving A. was uncertain. 2. The deed is assailed upon the further ground that when it was executed Frederick Wilkinson did not possess sufficient mental capacity to make it. Mr. Wilkinson was born in 1842, and was educated as a lawyer and admitted to practice his profession in this state, but, having inherited a considerable fortune, which afforded him facilities in mercantile pursuits, he abandoned his profession, and became a member of a firm of lumber dealers in Trenton, and continued as a partner in that firm and its successors until the fall of 1877. For many years he was an active director in the Mechanics' National Bank of Trenton. Through the years 1873, 1874, and 1875, and until about the 1st of June, 1876, he served in the board of directors of that bank upon the discount and other important committees, and, according to the testimony of the only directors who were sworn as witnesses in the case, proved to be a man of excellent judgment and ability as long as he continued to act as a director. He was also a vestryman in St. Michael's Episcopal Church in Trenton, and from time to time attended the meetings of the vestry until April, 1876, and, in that month, was reelected to the vestry for another year. The testimony shows frequent instances through the years 1873 and 1874 of business transactions conducted by him, of contracts, deeds, bonds, and mortgages drawn by his own hand, and of several instances of business transactions early in the year 1875. In January, 1876, he made a will, which was witnessed by two...