De Witt v. Brands

• Decision Date: 29 June 1887
• Citation: 44 N.J.E. 545,10 A. 181
• Parties: DE WITT and others v. BRANDS and others.
• Court: New Jersey Court of Chancery

10 A. 181

44 N.J.E. 545

DE WITT and others

v. BRANDS and others.¹

Court of Chancery of New Jersey.

June 29, 1887.

On bill for relief.

Chauncey H. Beasley, for complainants. J. G. Shipman & Son, for defendants Isaac Brands, Catharine Green, and Hannah Reed. Geo. A. Angle, for defendants James, Jacob, and Abraham Brands.

BIRD, V. C. David Brands died intestate January, 1883, leaving seven children him surviving, seized in fee of about 117 acres of land and of some personal estate. His son Isaac was made administrator, and soon after sold all of the goods and chattels. In the month of November, 1883, the said children, excepting only Jacob X., agreed to sell said farm, and did sell to one of their own number, Abraham. After this sale, but on the same day, as the testimony stands, Isaac, the administrator, discovered three releases which are the cause of this controversy. He discovered them in an old desk which he bought at the sale of the personal property of his father some time before. He was looking in this desk for the title deeds of the land, and while thus engaged found three releases and the deeds in one package; one given by Jacob X., one by Abraham, and one by James to their father. The two latter bear date March 30, 1853. The recitals in these show that he had sold to each certain lands. In the releasing part each one "releases, discharges, and forever quitclaims all right, title, interest, or claim whatsoever to him, the said David Brands, and to his other children and heirs at law, of all the estate, both real and personal, that may be left at the decease of my father; I being fully satisfied and content on the reception of the above-mentioned deed for all legacies that now or ever hereafter might descend to me from the estate of my father, David Brands, * * * and that all of the estate of my father at the time of his decease may be divided among his other children and heirs at law or otherwise, without any claim or demand either by myself, my heirs, executors, and administrators," etc. The consideration moving Jacob X. to give the release was $2,500 in money. The release given by him was substantially the same as the other two. It was executed October 1, 1853.

The complainants file their bill setting up these releases, and ask the court to declare them binding and effectual, and to decree that Rachel De Witt, one of the complainants, is entitled to one-fourth of the estate of which her father died seized. Isaac and the other two daughters answer, admitting the principal matters set up in the bill, and ask that the estate may be divided into four parts. James, Abraham, and Jacob X. by their answer insist that their father never intended that said releases should be operative. They also insist that all of the other children gave releases; that their father did not intend to exclude any of his children from an equal share of his estate with the rest; and that, after these releases were given, he made equal divisions among them. There is no proof that releases were executed also by the other children. There is no testimony to warrant any such belief.

I am quite free to say that I have looked into this case with great care, in the belief that I would find some evidence going to show that these releases had served the purpose for which they were designed, and that now they should not be regarded as binding. And to this same end all of the testimony that seemed at all relevant was admitted. It occurred to me that these releases might have been intended to be used by the father to preserve some equality between the children until the last one should receive his or her portion; but this theory is unavailing, since there is no release produced from any of the daughters who took their portions of the division about the time Isaac and Abraham took theirs, and years before Jacob X. executed his release; nor is there any evidence, as above stated, that they ever executed any release. And the father survived the execution of the release by Jacob X. about 30 years, during which long period he neither destroyed the said three releases, nor, exacted one from his other children, and during which period he gave to each, as will be seen, $300, and loaned to Jacob X. $1,000, taking his note therefor.

The counsel for James,...