ÆäÀÌÁö À̹ÌÁö
PDF
ePub

(67 N. J. L. 218)

STATE (WYCKOFF, Prosecutor) v. LUSE. (Supreme Court of New Jersey. Nov. 11,

1901.)

PARTNERSHIP AS TO THIRD PERSONS-EVIDENCE-APPEAL-OBJECTIONS IN INTERME

DIATE COURT-NECESSITY-REVIEW.

1. Evidence that defendant W. purchased certain timber, and that his brother was permitted by him to take general charge of the cutting and removal thereof, and that the latter and M. were jointly interested in the timber to be cut, and the net profits were to be paid to W. to be credited on debts owing to him by his brother and M., and that the men cutting the timber were boarded by plaintiff at the personal request of M., who represented himself as a partner with W. and his brother in the business, was sufficient proof that the three were partners to justify a joint judgment against them for the value of the board furnished to their employés.

2. Where an action was tried before a justice of the peace at which the costs taxed were excessive, but no objection was made thereto on a trial de novo on an appeal to the court for the trial of small causes, such question cannot be reviewed on a further appeal to the Supreme Court.

Certiorari to court of common pleas, Warren county.

Certiorari by the state, on the prosecution of Martin Wyckoff, against Fanny Luse to review a judgment. Affirmed.

Argued June term, 1901, before GUMMERE and HENDRICKSON, JJ.

Martin Wyckoff, pro se. John H. Dahlke, for defendant.

PER CURIAM. This writ brings here for review a judgment of the Warren pleas, entered after a trial de novo, on an appeal from the court for the trial of small causes. The judgment was given for a balance of the bill of the plaintiff below for the board of men, while engaged in cutting off a piece of timber near her house, against the prosecutor, his brother (Cornelius Wyckoff), and Robert Melrose, who were defendants below. The present prosecutor was the only one who appealed.

One reason urged for a reversal is that a motion to nonsuit for insufficiency of the state of demand was overruled. We think there is no merit in this objection.

Another ground urged was that there was no evidence to show that the three defendants were jointly interested in the cutting of the timber, or that they permitted themselves to be so held out to the public. The evidence did tend to show that the timber was purchased by Cornelius Wyckoff; that his brother, the prosecutor, was permitted by him to take general charge of the cutting and removal of the timber; that the latter and Melrose were jointly interested in the timber to be cut; and that the net profits were to be turned over to Cornelius Wyckoff, to be credited upon debts owing to him by the prosecutor and said Melrose. We think there was evidence from which a partnership

interest in the cutting of this timber might be inferred, and hence a joint liability for the expenses incurred therein by the partners or either of them. The men were boarded at the personal request of Melrose, who represented himself to plaintiff as a partner with the other defendants in the business then in hand. There being at least some evidence to support the judgment, this court cannot interfere. It is not the province of this court, in reviewing the judgments of the court of common pleas in appeal cases, to retry the cause upon the merits. Deubel v. Vanderbilt, 64 N. J. Law, 159, 44 Atl. 842.

The judgment of the pleas having reduced the amount recovered in the court below, there should have been no judgment for costs in that court. The costs before the justice appear to be excessive, but, since no effort was made to correct the taxed bill in the court below, we cannot grant the relief here. The judgment below is affirmed, except as to the costs of the appeal.

(67 N. J. L. 221)

MURPHY v. WATSON.

(Supreme Court of New Jersey. Nov. 11, 1901.)

PLEADING-AMENDMENT AT TRIAL-VERBAL ORDER-FILING OF AMENDED PLEAS AFTER JUDGMENT.

1. Where, on the trial of an action, the court orally ordered certain amended pleas to be filed which were necessary to raise the issues in controversy, the fact that the pleas were not filed, under a rule entered nunc pro tune, until after judgment was entered on the verdict, did not invalidate the judgment, the verbal order entered at the trial being sufficient to sustain the

same.

Error from circuit court, Essex county.

Replevin between one Murphy and one Watson. From a judgment in favor of the latter, the former brings error. Affirmed.

Argued June term, 1901, before DEPUE, C. J., and DIXON, GARRISON, and COLLINS, JJ.

Jerome D. Gedney, for plaintiff in error. Blake & Howe, for defendant in error.

PER CURIAM. The only question raised was with respect to the power of the court to order an amendment to the pleadings after the case was tried. The cause was tried December 3, 1900. Judgment was entered upon the verdict the same day. On March 6, 1901, pleas were filed that were necessary to raise the real subject-matter in controversy between the parties. The contention is that the filing of these pleas will not support the judgment, there being no triable issue at the time of the trial, and the power of the judge to order an amendment after the trial is contested. It appears from the stipulation, in writing, that the order referred to as allowed on March 2d was verbally made by the court at the trial of the cause. That was a sufficient order. The

[blocks in formation]

1. A bill for specific performance of a contract for the sale of land was based on the original agreement and a subsequent agreement on the back thereof, modifying the original in two points favorable to defendant. Held, that

defendant was estopped to aver that the agreement was indefinite as to parties because neither the plaintiff nor any other vendee was named in the indorsement, or because the plaintiff had not signed the indorsement, where it was signed by his counsel.

2. It will not be presumed that the purchaser of land stipulating for the abstract of title clear of incumbrances is to pay for the land before he examines the abstract.

3. When an assignee of the vendee under an agreement for the sale of land tenders the purchase money and demands the deed, and the vendor does not object that the assignee has given no notice of his rights as assignee in the agreement, he cannot thereafter object.

Appeal from court of common pleas, Washington county.

Bill by the Pennsylvania Mining Company against L. Thomas for specific performance. From a decree for plaintiff, defendant appeals. Affirmed.

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

John C. Bane and R. W. Irwin, for appellant. J. W. Donnan, A. Donnan, John G. MacConnell, and A. M. Neeper, for appellee.

MITCHELL, J. The material facts admitted by the demurrer and found by the learned judge were as follows: Appellant, being the owner of land, sold an option to purchase a vein of coal therein to one J. M. Thomas by written agreement describing the land and the terms of the sale fully and explicitly. On November 30, 1899-the day before the expiration of the option-J. M. Thomas notified appellant of his acceptance and election to purchase. On December 27th J. M. Thomas assigned his right to plaintiff, and on the next day appellant signed an agreement, indorsed on the original contract of option, changing the latter in two points favorable to him, viz., that the purchase money was to be payable presently in full, instead of in three annual payments, and appellant was to receive $20 as part of the cost of the abstract of title, which the original contract bound him to furnish. Appellant on his part agreed to execute a deed within 10 days after delivery of the abstract to the plaintiff's counsel. The bill charged that this contract was made with the plaintiff, which in April, 1901, noti

fied appellant to furnish the abstract of title. This appellant failed to do, and in July, 1901, plaintiff tendered the purchase money, the $20 on account of the abstract, and a deed for execution. Appellant refused to carry out the agreement, and this bill was filed in September, 1901. The court decreed perform

ance.

The chief defense set up by the appellant is that the bill is founded on the second con. tract, made December 28, 1899, and that this will not support a decree for specific performance, because neither the plaintiff nor any other vendee is named in it, and it is therefore indefinite as to parties, and plaintiff did not sign it, and therefore it is not mutually binding. This argument is well answered by the opinion of the court below that it "entirely ignores the fact that the agreement signed by defendant on December 28, 1899, was written on the back of the original agreement [quoting the latter]. *** It also ignores the fact that an assignment of the rights of J. M. Thomas under this original agreement was made to the Pennsylvania Mining Company, plaintiff, after he had elected to purchase under his option; the election to purchase and assignment being in writing [quoting them]." The averments of the plaintiff's bill clearly show that its claim for specific performance is based upon the original agreement dated May 26, 1899, as modified by the agreement of date December 28, 1899; and, taking these two agreements together, there can be no doubt as to the parties to the contract, or as to its mutuality. J. M. Thomas, his heirs and assigns, are named as the parties who shall "have the exclusive right to purchase said coal," and the plaintiff company is, under the averments of the bill, which are confessed and found to be true, a party to the contract under the descriptive word "assigns." "The agreement entered into by A. M. Neeper, Esq., the general counsel of the plaintiff company, and the defendant, on December 28, 1899, was not an agreement which vested in the company an equitable title to the coal in question that had vested already under the terms of the original agreement and the acceptance and assignment of Thomas, but it was an agreement modifying to some extent the manner in which the original agreement, which was executory, should be executed. Mr. Neeper, as general counsel of the plaintiff, had the original contract in his possession, and it was in the line of his duty to supervise the execution of this executory contract. At all events, if it was not, it would in no way affect the plaintiff's rights to a decree of specific performance under the original agreement, its acceptance and assignment, which are all admitted, and found to be binding upon the defendants."

The other objections are manifestly only afterthoughts to excuse a plain breach of contract. It is said that no tender of the $20 for half the expense was made when the

abstract of title was demanded, and that while, by the original agreement, appellant was to furnish the abstract at his own expense, it was not made a condition precedent | to the payment of the purchase money. But it was so in the nature of things. It would require a very clear contract to that effect to justify a construction that a purchaser who stipulates for an abstract of title, clear of incumbrances, is to pay the purchase money before he examines the abstract.

It is further said that plaintiff was dilatory in the assertion of its rights and should be barred for laches. The court found that the plaintiff had at all times been ready, anxious, and willing to perform its part of the contract, and we see nothing to indicate that it was more than indulgent to the appellant in modifying the original contract in a manner lavorable to him, and in failure to resort to the court until after repeated efforts to get an amicable settlement.

Lastly, it is said that plaintiff did not give lefendant notice of its right or title, as assignee of J. M. Thomas, at the time it made demand for the abstract or tender of the purchase money and the deed for execution. It would be sufficient answer that no objection or question on that account was made at the time by the defendant. But in fact no such notice was required, as he had full knowledge of the fact as long ago as December, 1899, when he accepted the favorable modification of the original agreement by the counsel of the plaintiff company.

Decree affirmed, with costs.

(96 Md. 393)

HOOVER et al. v. SMITH et al. (Court of Appeals of Maryland. Jan. 22, 1903.) WILLS-CONSTRUCTION-VESTED REMAINDER.

1. Under a will made when two of testator's daughters had died, leaving children, giving all his property to his wife during her life, or as long as she remained his widow, with direction that on the happening of either event the property shall be sold and divided equally among his lawful heirs, the interest in remainder vests on testator's death, so that a child of one of such deceased daughters, dying after him, but before his widow, has an interest which passes to her representatives.

Appeal from circuit court, Frederick county, in equity; John C. Motter, Judge.

Bill by John J. G. Hoover and others against Carrie Smith and others. From the decree, complainants appeal. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. Emory L. Coblentz, Chas. C. Waters, and John S. Newman, for appellants. S. A. Lewis, for appellees.

BOYD, J. This is an appeal from a decree of the circuit court for Frederick county construing the will of Gideon Hoover.

The portion of the will involved in this controversy is as follows:

"Item 1st. I devise and bequeath to my beloved wife Elizabeth all my property, real, personal and mixed, to have and to hold the same during her natural life, or as long as she shall continue to be my widow.

"After either of the above events the prop erty to be sold and divided equally among my lawful heirs.

"The children of deceased heirs shall inherit the full portion as their parents would have done if living."

The testator died September 6, 1874, the day after his will was executed, leaving surviving him a widow, two sons, a daughter, two grandchildren, who were the children of a deceased daughter, Eliza Stottlemyer, and a granddaughter, who was the child of another deceased daughter, Olive Wolf. Elizabeth Wolf, the daughter of Olive, died December 7, 1890, and Elizabeth Hoover, the widow of Gideon, died in October, 1901, without having remarried. Annie M. Maugans, one of the daughters of the testator, and her husband, made a deed for their interests in the "Gideon Hoover farm," which the bill prays may be construed; but it was stated at the argument that that was no longer necessary, and the only question for us to determine is whether Elizabeth Wolf had such interest in the estate of her grandfather as to pass at her death to her representatives. She never married, and Jacob Wolf, her father, claims the interest in the estate which it is admitted she would have been entitled to if she had lived until the period of the distribution of her grandfather's estate.

The law favors the early vesting of estates, and "courts will, in the absence of plain expressions, or an intent plainly inferable from the terms of the will, adopt the earliest time for the vesting, where there is more than one period mentioned." Straus v. Rost, 67 Md. 476, 10 Atl. 75. It is a well-recognized rule of construction that in doubtful cases the interest shall be deemed to be vested in the first instance, rather than contingent, unless the instrument under consideration does not admit of such construction. When a testator has employed terms in his will which in their ordinary signification are in accord with such familiar and fixed rules of law, it should require very clear expressions elsewhere in the will to justify the court in giving such terms some other and unusual meaning. When, therefore, a testator directs that after his wife's death or marriage his property is to be sold and divided equally among his "lawful heirs," and makes no other disposition of the remainder after his wife's death or marriage, when and in whom does such remainder vest? At common law an heir is "he who is born or begotten in lawful wedlock, and upon whom the law casts the estate in lands, tenements or hereditaments immediately upon the death of his

ancestor." In 15 Ency. of Law (2d Ed.) 322, it is said: "A devise to heirs, whether to one's own heirs or to the heirs of a third person, designates not only the persons who are to take, but the manner and proportion in which they are to take. Where there are no words to control the presumption, the law presumes the intention to be that they take as heirs would take by the rules of descent." And again it is there said: "It is well settled that a gift to the heirs of one will be construed as referring to those who are such at the time of the ancestor's death." If, then, we adopt the ordinary meaning of the term used by the testator ("lawful heirs"), we find that he presumably intended that those who would be entitled to his real estate at the time of his death should get the benefit of the proceeds of the sale. It cannot be successfully contended that merely because he gave his wife an estate for life, or as long as she continued to be his widow, the vesting of the estate given the heirs should be postponed until the widow's interest ceased. If he had said, "After either of the above events the property to be sold and divided equally among those who are entitled to it by the rules of descent at the time of my death," there could be no question about it. And when he used a term which has that meaning, in the absence of some intention expressed to the contrary, must it not be given to it? It is true that this will speaks of real and personal property, and the record does not show how much there was of either, but the word "heirs" has been heid to include "next of kin," when used in such connection as it could be seen such was the intention; and as this testator left three children and three grandchildren, who were children of his deceased daughters, if he had died intestate the same persons who would have inherited his real estate would have been entitled to distribution of his personal property. Those who were his heirs were also his next of kin, and we are now considering the class of persons who were to receive his property. His children and grandchildren were not named in the will, but, instead of naming them, he described them by the term we have mentioned. So reading the will thus far, we find that the testator left his property to his wife for life, or as long as she remained unmarried, and, after her death, or marriage, to a class of persons whom he designated by the term which the law says means those upon whom the law casts his real estate immediately upon his death; and, as he made no other provision for his personal property, it may be assumed that he meant to include that. Under the rules of construction we have already referred to, the presumption, therefore, is that he intended that the interest in his property should vest in them at the time of his death, unless there be something else in the will to show the contrary. We have quoted above all that it says on the subject,

and hence, unless the last clause changes the meaning of the others, there would seem to be no ground to question the vesting of the estate at the death of the testator. That says, "The children of deceased heirs shall inherit the full portion as their parents would have done if living." When the will was made, two of the testator's daughters were dead; one having left two children, and the other one child. It is manifest that he had those grandchildren in mind, and primarily that provision was made for them. It is true that no one can, strictly speaking, be said to be an heir of his ancestor while he is living, but it is evident that the testator spoke of those as such who would have been "heirs" if living. If the theory of the appellants be correct, the child of one of the testator's children who died after the testator and before the widow could not have taken, as he would not have been a child of a "deceased heir." There would be nothing for the child of the deceased child of the testator to inherit unless the estate had vested in the latter. We think there is nothing in this clause of the will from which it can be fairly inferred that the testator intended to postpone the vesting of the estate until the widow's interest in the property ceased by death or marriage, but he only intended by the provisions in his will to postpone the time of their enjoyment of the interests they were to receive.

It is always difficult, in construing wills, to find cases exactly in point; but that of Cox v. Handy, 78 Md. 108, 27 Atl. 227, 501, is in several respects as applicable to this one as we are apt to find. There the testator left certain real and personal property to his wife for life, and his will contained this clause: "It is my will that after the death of my wife, Mary Ann Handy, all the property devised to her for life * * * shall be sold, if necessary for equal partition, or if the same can be accomplished without a sale, shall be divided amongst my children, share and share alike, the child or children of any deceased child to take the portion to which the parent if living would have been entitled." This court held that a share of the property vested in each of the children of the testator who survived him, and if any such child died before the life tenant, leaving children, that his share was divested in favor of such children, but that the share of a child dying without children was not divested, but went to his personal representatives. Or, as was said in the opinion delivered after a motion for reargument, "a share of the property vested in each of the children who were living at the time of his death, and if any child died before the period of distribution, leaving children, they were substituted in his place; his share, however, was not divested if he left no children, but it went to his representatives." In reference to the share of Julia J. Handy, whose father died before the will was made, it was held that it

was clearly the testator's intention that she should take a child's part; and that opinion concluded by saying, "If the deceased parent survived the testator, the child took by substitution in his place; but, if he died in the lifetime of the testator, the child's title was by direct and original gift." So applying the rules thus announced to this case (and the clauses in the two wills as to what a child of a deceased child shall take are very similar), we are of the opinion that the child of Mrs. Wolf took by direct and original gift the interest her mother would have been entitled to if she had survived the testator, and Elizabeth Wolf's interest went to her representative.

The appellants have cited Straus v. Rost, 67 Md. 465, 10 Atl. 74, Larmour v. Rich, 71 Md. 369, 18 Atl. 702, Small v. Small, 90 Md. 550, 45 Atl. 190, and other cases, but they can readily be distinguished from the one we have before us. It is sufficient to say that in those cases the court reached the conclusion from the wills under consideration that the testators had, with reasonable certainty, indicated the time at which they intended the estates in controversy to vest, and the court was governed by such intention. In Small v. Small, supra, it was said "the distinction is clearly drawn between that class of cases where the estate or interest vests at the death of the testator, because of an absence of any expressed intention that it vest later, and those where the testator by his will fixes a more distant period for the vesting," and a number of cases are cited to illustrate the respective classes.

As no question has been raised as to whether there ought to be administration on the estate of Elizabeth Wolf, and as the bill made Jacob Wolf, her father, a party, we need not determine that question, and will affirm the decree, which decreed that Elizabeth Wolf took a one-fifth vested interest in the estate of Gideon Hoover, which survived her death, and that her representative is entitled to share in the distribution of said estate to that extent.

Decree affirmed; the costs to be paid out of the estate of Gideon Hoover.

(96 Md. 384)

GREEN v. STATE. (Court of Appeals of Maryland. Jan. 21, 1903.)

MURDER-CONFESSION-EVIDENCE.

1. One's confession to commission of a murder, being voluntary and not induced by threats or promise of advantage, is admissible.

2. One may testify to a confession he heard made, though he cannot give the exact language, but only the substance thereof.

Appeal from circuit court, Talbot county; James A. Pearce, Edwin H. Brown, and Wm. R. Martin, Judges.

Lewis D. Green was convicted of murder, and appeals.

Affirmed.

1. See Criminal Law, vol. 14, Cent. Dig. § 1146.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, SCHMUCKER, and JONES, JJ.

Seth & Wilson, for appellant. Isidor Rayner, Atty. Gen., for the State.

JONES, J. The appellant was indicted in the circuit court for Talbot county on a charge of murder, and upon trial was convicted of murder in the first degree. He received the sentence of the court on the 7th day of June, 1902, and brings this appeal from that judgment. The questions upon this appeal are presented by exceptions to evidence admitted by the trial court against objection made on his behalf.

The victim of the homicide was a woman, and the killing was done by shooting with a pistol. After using the pistol with fatal effect upon his victim, he turned the weapon upon himself, presumably with suicidal intent. He was found to have shot himself through the right ear (the bullet passing through the bone, and on down through the throat, as described by a physician who saw him), and also in the chest, over the heart (this bullet passing under the muscles and lodging under the big muscles of the arm). Immediately after the shooting, he was found to be suffering greatly from shock, and was unconscious. It was soon discovered, however, that the wounds which he thus inflicted upon himself, after their immediate effects had subsided, were not dangerous. Within two days after the shooting the appellant made certain confessions or statements to an attending physician in the presence of a justice of the peace, who took the same down, as to his having done the killing for which he was afterwards indicted and convicted, and as to his motive therefor. These confessions or statements were admitted as evidence against the appellant upon his trial by the court below, which overruled objections thereto made by his counsel, and are the subject of the exceptions brought up by the record.

The questions presented upon the exceptions are matters of grave import to the appellant, but, as respects the disposition the court must make of them, are free from difficulty. The rules of law that must determine these questions would seem to be too well settled by our own decisions to make necessary any reference to other authorities. The confessions of the accused, especially in capital cases, as this was, are always to be received with caution. The law imposes the condition upon the admitting of them in evidence that they be not induced by threats, or by promise of advantage to be derived from making them, and the burden of showing affirmatively that they were not so induced to be made in any given case is upon the prosecutor. Nicholson v. State, 38 Md. 140. The confession which was objected to by the prisoner's

« ÀÌÀü°è¼Ó »