(103 N. Y. 672)

LAMMER, and others v. STODDARD, Ex'x, etc.

(Court of Appeals of New York. November 23, 1886.) MORTGAGE-PAYMENT-PRESUMPTION OF-LAPSE OF TIME-STATUTE OF LIMITATIONS

TRUST FUNDS.

Where a sum of money was loaned by an executrix and trustee in accordance with the will of the testator, and a bond and mortgage were taken to secure it, and, after the death of the executrix, the mortgage was found uncanceled on the record, in an action brought by the beneficiaries of the fund against the estate of the mortgagee, who it was alleged had knowledge of the trust, to enforce payment of the mortgage, held that, after the lapse of 48 years from the date of the loan to the death of the mortgagee, and 34 years from the date of the loan to the death of the executrix, the non-production of the bond and mortgage will furnish satisfactory and conclusive evidence of their payment. Held, further, that the New York statute of limitations furnishes an equally conclusive defense to the action.

Action to enforce a trust. Judgment for defendant. Plaintiffs appealed. Joseph Lammer died February 27, 1831, leaving a widow, Mary Lammer, and five children, Edward, Fanny, Joseph, Clarissa, and John A., the last three being the children also of Mary, who was his second wife, and being, at their father's death, aged, respectively, seven, six, and three years. Joseph Lammer also left personal estate amounting to upwards of $36,000, and a will in which he bequeathed to his wife absolutely the sum of $2,000, and created a trust, as follows: "I give and bequeath unto my said wife, Mary, the further sum of $3,000, lawful money aforesaid, to be paid to her as soon as conveniently may be after my decease; in trust, nevertheless, that she, my said wife, shall have, use, and take the interest accruing, and to arise from the said $3,000 during the minority of my sons Joseph and John, and daughter Clarissa, to be applied for and towards the support, maintenance, and education of my said three children, and to pay to the said children Joseph, John, and Clarissa, as they shall respectively arrive at the age of twenty-one years, the sum of $1,000 each." "My will is that the sum of $3,000 hereinbefore given in trust to my said wife, Mary, shall be by her put at interest, by good bond and mortgage security, upon real estate, to be approved of by my executors hereinafter named, and, in case either or all of my said children Joseph, John, and Clarissa shall die during their minority, and without lawful issue, then my will is, and I do hereby give and bequeath unto my said wife, Mary, the sum or sums of money which such child or children would have been entitled to receive if he, she, or they had lived to the age of twenty-one years." And he appointed his wife and his son Edward executors of his will. The will was admitted to probate. The executors qualified as such, and filed an inventory, May 24, 1831. The $3,000 for the trust fund was paid to Mary Lammer; and on the seventh day of June, 1831, she loaned $3,000 to one Talbot, and took his bond and mortgage to secure the same, and they were paid June 1, 1833. At the latter date she loaned the same amount to one Smith, and took his bond and mortgage to secure the same, and they were paid February 3, 1836. About the day last named, she loaned Edward Lammer $5,000, and took from him a mortgage dated February 1, and acknowledged February 5, 1836, conditioned to pay that sum, with interest, on the first day of February, 1837. It appears from the recitals in the mortgage that a bond was also given, to which the mortgage was collateral. The real estate mentioned in this mortgage was covered by a prior purchase-money mortgage, given by Edward Lammer, which was foreclosed in 1837, and the real estate was sold upon such foreclosure for an amount which left nothing to apply upon the mortgage given to Mary Lammer.

Edward Lammer was a merchant in New York, and was burned out by the great fire which occurred December 16, 1835, and thereby became financially embarrassed, and unable to pay his debts. A few years thereafter he became solvent, and so continued to the time of his death, in July, 1884, when

he left an estate inventoried and valued at nearly $65,000. He was never married, and he left a will in which he bequeathed to his half-sister and brother, Clarissa and John, each $1,000, and gave the remainder of his estate to other relatives. Joseph Lammer died in 1840, and Mary Lammer died December 28, 1870. She always lived in Brooklyn, and Edward Lammer lived in the same city, and in New York; and during 20 years prior to his death he made a monthly allowance of $20 to Clarissa, which, while she took care of her sick mother, was increased to $26. After the death of Mary Lammer the mortgage given to her by Edward was found to be uncanceled upon the record. Clarissa was appointed administratrix of her mother's estate; and then she and her brother John A. commenced this action to enforce the trust, as to the $3,000, against the estate of Edward.

The trial judge found, as a matter of fact, that Edward had paid the amount of the mortgage to Mary Lammer in her life-time, and refused to find that the trust fund was included in the $5,000 loaned to him; and he dismissed the complaint.

P. V. R. Stanton, for appellants. Jesse Johnson, for respondents.

EARL, J. The finding of the trial court, affirmed by the general term, that Edward Lammer had paid to Mary Lammer the amount loaned to him by her, which was secured by his mortgage, was founded upon sufficient evidence, and concludes us. The loan was made 48 years before Edward's death, and 34 years before Mrs. Lammer's death, and during most of that time he possessed ample pecuniary ability to pay. She was not shown to possess much means, and presumably needed the money for the support of herself and infant children. She and Edward always resided near each other, and, during 20 years, he made a considerable allowance to his sister for the benefit of herself and mother, thus showing that he was not only disposed to be just, but liberal. The bond and mortgage were not in her possession at her death, were not then shown to be in existence, and were never, until shortly before the commencement of this action, by either of the plaintiffs, the youngest of whom at her death was 42 years old. Under such circumstances, the nonproduction of the bond and mortgage furnishes very satisfactory and conclusive evidence of their payment. Bergan v. Urbahn, 83 N. Y. 49.

But the statute of limitations furnishes an equally conclusive defense to this action. If it be assumed that the trust fund was loaned to Edward Lammer with notice of the trust, under such circumstances that the trust, within a proper time, could have been enforced against him or his estate, the lapse of time would still stand in plaintiffs' pathway. If this were an action to recover the debt evidenced by the bond and mortgage, it is conceded that it would have been barred. But the action is to establish and enforce a trust, and hence the claim is made that it is not barred. It is undoubtedly generally true that, as against a trustee of an actual, express, subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed, or repudiated the trust. But Edward Lammer was not the actual trustee of this fund, and he never acknowledged a trust as to the money loaned him. He could, at most, have been declared a trustee ex maleficio, or by implication or construction of law; and in such a case the statute begins to run from the time the wrong was committed by which the party became chargeable as trustee by implication. Wilmerding v. Russ, 33 Conn. 67; Askhurst's Appeal, 60 Pa. 290; McClane v. Shepherd, 21 N. J. Eq. 76; Decouche v. Savetier, 3 Johns. Ch. 190; Ward v. Smith, 3 Sandf. Ch. 592; Higgins v. Higgins, 14 Abb. (N. C.) 13; Clark v. Boorman, 18 Wali. 493; Perry, Trusts, § 865. We therefore see no reason to doubt that the judgment below was right, and it should be affirmed, with costs.

(All concur.)

(118 Ill. 553)

SPENCER v. BOARDMAN, Adm'r, etc.

(Supreme Court of Illinois. November 13, 1886.)

1. EVIDENCE-LOST CONTRACT-CONTENTS PROVED BY INSTRUCTIONS TO DRAUGHTSMAN. While instructions to an attorney or draughtsman of a contract by one party, prior to its signature, and at which the other party is not present, are not binding on such other party, yet when it has been shown that such a written contract was executed, and is now lost, the instructions of one of the parties to the draughtsman who drew up the contract are admissible to prove its contents.

2. WITNESS-TRANSACTIONS WITH DECEASED PERSON.

Where two parties joined in instructing a scrivener to draw certain contracts which were afterwards lost, and one of the parties afterwards died, held, that the instructions to the scrivener might be proved by his testimony, but the surviving party could not testify as to the transaction with the deceased. 1 Starr & C. St. par. 2, c. 51. 3. DOWER-BAR OF-ANTENUPTIAL CONTRACT-WIDOW'S AWARD.

An antenuptial contract will bar dower, and, in the absence of children interested in the statutory widow's award, the contract will bar the widow's award also. 4. COURTS-COUNTY COURT-PROBATE POWERS.

The county court, in matters of probate and administration, has a qualified equity jurisdiction to enforce its orders.

Appeal from Stark.

McKenzie & Calkins and A. P. Miller, for appellant. M. Shallenberger and C. C. Wilson, for appellee.

SHELDON, J. This was a cause originating in the county court of Stark county, on petition of Edwin R. Boardman, administrator of the estate of Isaac P. Spencer, deceased, to sell real estate to pay debts. Gertrude K. Spencer was the widow, the amount of the widow's award was $1,500, and she had received in property, at its appraised value, $1,330.75 of that award. The petition set out facts showing a deficiency of personal property to pay debts of about $10,000. It prayed the setting apart of the widow's dower and homestead, and the sale of the residue of the real estate to pay said deficiency. The heirs came in, and set up by answer that the widow was not entitled to homestead or dower or widow's award by reason of an antenuptial contract entered into by her. The county court, upon trial, found that the widow was entitled to homestead, but not to dower or widow's award, and ordered a sale. From the order of the county court, Gertrude K. Spencer, the widow, appealed to the circuit court, and in that court filed her answer, by leave of court, whereby she admitted the necessity of the sale to pay debts, admitted that she was entitled to dower and homestead, and requested that her dower interest be sold, and that a gross sum be allowed to her in lieu thereof. The circuit court affirmed substantially the order of the county court, and from the judgment of the circuit court the widow appeals to this court. No antenuptial contract was produced, and the question first to be considered is whether one was made as alleged.

Isaac P. Spencer, deceased, at the time of his marriage to appellant in July, 1876, was a widower 64 years of age, having children by his former marriage, who were all of age. Mr. North, an attorney, testifies that, a week or 10 days before this second marriage, Mr. Spencer came to him, informed him that he was about to contract a second marriage, and wished him to draw up an antenuptial contract. Mr. North did so, in accordance with directions from Spencer, and handed the writing to the latter, which he took away without signing. Mr. North testifies distinctly to the contents of this writing; that by it Spencer and his intended wife mutually agreed to join in any conveyances that might be necessary to convey the real estate of either of them, and she agreed to accept $2,000 in lieu of any dower interest in his property which he had, or might acquire, and in lieu of her homestead rights and widow's award; that the $2,000 was to be paid within one year after his death; that Spencer agreed to waive and release any claim or right in her

property which might result from the marriage. The witness Boardman, the administrator, testifies that, in a conversation with appellant, he told her the heirs claimed there was such a marriage contract as that above stated, and she said she did sign a paper; that she signed it just as she was going on the floor to be married; that she didn't read the paper, didn't know what was in it, and that it had been destroyed by mutual consent. Mr. Bogart, a notary public, testified that in January, 1881, he drew up, at the request of Mr. Spencer and his wife, a note and mortgage for $3,000 running from the former to the latter, due in six years after date, the mortgage securing the payment of the note on real estate; that the consideration of the note and mortgage was fully stated by Mr. and Mrs. Spencer to him; that it was stated an antenuptial contract had been executed between them whereby Mrs. Spencer was to receive $2,000 within a year after her husband's death, and that this $2,000 was to be in lieu of all her widow's rights in the estate of her husband; that the note and mortgage were given to secure the payment of this $2,000, and $1,000 additional. The witness states that he asked for the contract in order to draw the mortgage, and Mrs. Spencer said it was with her attorney, where she used to reside; that she didn't want to keep it in the house.

Objection is taken to the admission of Mr. North's testimony as being to a transaction with Spencer alone, in the absence of appellant, and should not affect her. In connection with the subsequent testimony which appears, we regard it as admissible. We do not feel prepared to say that the court below was not warranted in finding from the evidence that the antenuptial contract was made as alleged, and that it was still in force. The evidence tending to show the contract was in the possession of appellant, parol evidence of its contents was properly admitted, it being stipulated that notice was given to produce the contract; and, besides, the answer of the heirs satisfied appellant that the contract was relied upon in resistance of her claim, and that evidence of it would be given. There is objection to the exclusion of testimony of appellant which was offered as to what occurred betweer her husband, Mr. Bogart, and herself, concerning the execution of the $3,000 mortgage, and what was said about the antenuptial contract, on the ground that Bogart was an agent of Mrs. Spencer, and that she, under the statute, might testify to the same conversation or transaction of the deceased that his agent testified to. Bogart was not the agent of the deceased; he was but a scrivener employed by the deceased to draw the mortgage, and take its acknowledgment. The point is made that the court improperly granted the relief it did upon answer; that there should have been a cross-petition filed. We perceive no error in this regard. The question presented under the petition and answers was the amount of the indebtedness, and how much real estate was required to be sold; the widow making claim she should be paid a sum in gross for dower, and there was substantially but a determination of that question. The order finds that the widow was not entitled to award, that she wrongfully received the $1,330.75 part thereof, and that that amount should be applied towards the payment of appellant's $3,000 note and mortgage; and she was restrained by the order from transferring the note so as to prevent the $1,330.75 being applied as a credit.

It is urged that the widow's award was wrongfully taken away. As respects dower, this court has, in a number of cases, decided that it will be barred by such an antenuptial contract. Phelps v. Phelps, 72 Ill. 545; Jordan v. Clark, 81 Ill. 465; McGee v. McGee, 91 Ill. 548; McMahill v. McMahill, 105 Ill. 596. And in McMahill v. McMahill we held that the widow's award was equally waived and barred by such an antenuptial contract. There were here no children of the second marriage. Under the authority of the case last cited, the order was correct in declaring the widow's award to be waived and barred by the antenuptial contract.

It is said the order granted relief beyond the power of the court in its restraining part. The order in this respect was no more than was necessary to make effective the adjudication which had been made that the $1,330.75 should be applied as a credit upon the note. Somewhat of equitable jurisdiction we have held the county court to possess in the making settlement of the estates of decedents, and we regard this restraining order as well enough made in this case.

The judgment of the circuit court will be affirmed.

BRADISH v. Grant.

(Supreme Court of Illinois November 13, 1886.1

1. JUDGMENT-RES ADJUDICATA-DECREE DISMISSING AMENDED BILL.

A decree in terms dismissing an amended bill for want of equity dismisses the original bill as amended; and such decree is therefore conclusive as to the claim made by plaintiff in the original bill.

2. SAME SCOPE OF DECREE SETTLING TITLE-ADVERSE POSSESSION PRIOR THERETO. Adverse possession cannot be shown by a defendant from a period anterior to the date of a decree, in a suit between himself and plaintiff, establishing title to the premises in dispute in plaintiff.

3. TRIAL-RIGHT TO ADDRESS JURY AND TO INSTRUCTIONS-NO QUESTION OF FACT. Where, in an action of ejectment, the only evidence was the record in two cases establishing title to the premises sued for 'n plaintiff's grantor, and a deed from the latter to plaintiff, held that, as the only question in the case was as to the legal effect of the documents, the refusal of the court to give any instructions asked by defendant's attorney, and the denial to him of the privilege of arguing the case to the jury, was not ground for reversal.

Appeal from superior court, Cook county.

Ejectment. Judgment for plaintiff. Defendant appeals.

Cunningham & Keily, for appellant. Jesse B. Barton, for appellee.

SHELDON, J. This was an action of ejectment, brought by George R. Grant against William Bradish, to recover the possession of the west 40 feet of the lots 7 and 8, in block 60, in Russell, Martha & Roberts' addition to Chicago. The plea alone of not guilty was filed, whereby under section 22, c. 45, Rev. St. 1874, the plaintiff had but to prove title in himself to maintain his action. This he did by the introduction in evidence of the decree and bill of complaint in a chancery suit brought to the May term, 1875, of the circuit court of Cook county, under the "Burnt Record" act, to establish title in said lots, wherein one Daniel T. Elston was complainant, and Fernando Jones, Bradish, the defendant here, and others, were defendants; also a decree and bill in a subsequent suit in chancery in that court wherein Bradish was complainant, and Grant, the plaintiff here, with others, was defendant; and a deed for said lots 7 and 8 from Fernando Jones to Grant, dated March 8, 1878. By the decree first named it was found that the title to said lots 7 and 8 was in Fernando Jones in fee-simple absolute at the time of the filing of the bill in that case; stating how he derived title, setting forth a chain of title to him from the United States. By section 10 of the act under which the proceeding was had, the court is given power, in case of the destruction of the records of any county by fire or otherwise, to inquire into the condition of any title to or interest in any land in the county, and make all such decrees as may be necessary to determine and establish said title or interest against all persons. Section 15 provides that it shall be competent for the court to determine and decree in whom the title in any or all of the lands described in the petition in the case is vested, whether in the petitioner, or in any other of the parties before the court. The decree found that all the parties were properly before the court, and that the court had jurisdiction of the subject-matter, and of the parties to the proceeding. Bradish being a