Opinion
12-20-1901
ELY v. ELY.
John M. Dickinson and E. R. Walker, for complainant. James Buchanan, for defendant.
Original bill by J. Addison Ely against Stephen D., Ely. Judgment for complainant.
John M. Dickinson and E. R. Walker, for complainant.
James Buchanan, for defendant.
REED, V. C. Joseph J. Ely, the father of the parties to this suit, died September 13, 1895, testate; the complainant and defendant being named as executors in his will. For many years before his death Mr. Ely bad made his home with the family of his son Addison, the complainant. After his death Addison presented a bill to his coexecutor for board, lodging, washing for his father, and for feed, care, and stable rent for his father's horse, and for storage for his furniture and wagon. The wife of Addison also presented a bill for her care of her father-in-law, for nursing, dressing his wounds, etc. These claims were excepted to by Stephen D. Ely, the coexecutor, and the claimant was directed to bring suit. The claim of Mrs. Ely was assigned to her husband, and he brought this suit to recover from the estate the amount of both these claims. The claim is thus made by one executor personally against the other, as executor. At law one executor cannot sue the other. His remedy is necessarily equitable. In Ransom's Ex'rs v. Geer, 30 N. J. Eq. 249, an executor was permitted to sue in this court his coexecutor, from whom a debt was alleged to be personally due to the estate; and in Petty v. Young, 43 N. J. Eq. 654, 12 Atl. 392, the court of appeals retained a suit brought by two administrators against a third, to have canceled a note held personally by the latter against the estate, and established the amount of the note as a debt against the estate. The jurisdiction of this court, therefore, to pass upon the claims set up by J. Addison Ely, is clear.
The services for which compensation is sought were rendered by one to another of the same family, and were presumptively voluntary. The right to recover compensation depends upon some testimony which refutes that presumption, and proves that these services were, by an understanding of the parties or by a special agreement, to be paid for. The testimony offered for this purpose is entirely verbal. There is not a scrap of writing produced to exhibit the intention of the deceased father to pay for these services. The case is one of a numerous and embarrassing class, where the court has to sift the testimony of witnesses interested by the strongest possible interest to make a case, where the only other person who knows the truth is dead. It was necessary, to support the complainant's case, for him to prove —First, an express or implied promise to pay for the services; secondly, to prove that the promises were made on or before the time the services were rendered, so as to create a consideration for the promises; and, third, to prove that the payment was to be made at so late a day as to evade the provisions of the statute of limitations.
The point in complainant's testimony is that the deceased told him and his wife, at the time he came to live with them, and at different times down to the date of his death, that they were to hand in a satisfactory bill after he was dead for their services to him. The promise sworn to was not that they should be simply paid, for that would have left a large portion of the claim barred, nor that he would remember them in his will, for he did remember them, but that a satisfactory bill should be paid out of his estate after his death.
Now, the principal witness is the wife of the complainant. In respect to what occurred when Mr. Ely first came to board with them, she says: "He said: 'Now, I have got no home where I can go to stay, and have all of the comforts I have been used to. I would like to come and live with you and Addison, if you are willing to have me. I shall come if you think you can get along with me.' I told him I was willing, provided Addison said so." She again says that at different times the deceased said: "You shall be paid handsomely;" "You shall be paid when I am dead;" "No court will ever censure a child for being kind to a parent." It is perceived that so far no time is fixed when the latter conversations were had, nor is the manner of payment mentioned. On cross-examination she says, for the first time, that in his conversation with Addison, when he first came, he said: "When I am through, we must hand in a satisfactory board bill, and we should be paid for it out of the estate for taking care of him." Thus, on cross-examination, you will perceive she says that the bill was to be paid after his death, out of the estate. The complainant says that, when his father came tolive with him, "he said he wanted to come and live with me, and he would pay me board. He said he would pay it in a lump. He didn't say at that date whether he would pay it after his death, or in what way he would pay it. But in former years he did say that he would pay it all in a lump, after his death." The latter remark is unintelligible, if he is speaking of the conversation with his father, when his father first came to the house, because nothing appears to indicate that there had been any talk between them about this matter previous to that date. Addison's wife testifies to another conversation, which took place in August, 1805, shortly before Mr. J. J. Ely's death. The testator had, through Dr. Johnson, sent for Stephen and his two children to come and see him. While Stephen was there, Mrs. Addison Ely says that the following conversation took place. Stephen said: "Dad, when you are dead and gone, Addison will hand in a board bill. You have been so long with him, he will hand in a board bill for you and the horse." To this the testator replied: "Stephen, don't bring the subject of that board bill up again, for I told Addison to bring in a satisfactory board bill, for I never paid him or his family one cent of board for all the time that I have been with him." He said: "I had no place to go to for safety, and the rest of my children would do nothing for me, and I wish when I am through for them to have it all in one lump; it would do them more good in that way." Grace, the daughter of Addison, who was then about 10 years old, testifies that she was present at this conversation, and to the language used by the testator, which is strikingly similar to that testified to by her mother. John S. Ely, a son of the complainant, says that he heard his grandfather say, about three months before he died, while Addison was washing and dressing him: "Addison, you won't have to do this much longer, and I want you to hand in a satisfactory board bill when I am through." This witness also says that he often heard his grandfather make similar remarks. Addison also swears to the same remarks upon the same occasion. John E. Allen, an apparently disinterested witness, says that in his office, a year or two years before the death of Joseph J. Ely, he heard a conversation between him and his sons Stephen and Addison. Addison was complaining to his father for bestowing upon Stephen more favors than he had bestowed upon him, while he (Addison) had been keeping him all the years during which his father had paid no board. To this remark of Addison's the father replied: "Now, Addison, there is time to attend to that matter yet; it will all be attended to." These are, in substance, the declarations of the deceased, sworn to by the complainant and his witnesses. For the defense, Stephen recalls a time, in 1895, when he was sent for by his father; but he denies that his father, in any conversation with him on that day, said anything at all about Addison's putting in a claim for board. His boys say the same; but it is not clear that they were, and I think they were not, present during the entire interview. The defendants also urge the improbability, in view of the character and prompt billpaying habits of the deceased, that he would allow a bill for board to stand all these years, if he had agreed to pay board. They urge, also, that the relations between the deceased and his son's family, his habit of furnishing supplies for their table, of paying money for their children's schooling, discredit the testimony as to his declarations that Addison or his wife should receive other compensation.
I think it probable that the testator, during the period of his residence with Addison's family, more than once used language indicating that they should be compensated for the care, trouble, and expense entailed by his presence. But I doubt whether the language he used did more, or was intended to do more, than indicate that he would, because of these services, remember them more favorably than the rest of his children in his will. Nearly all his expressions, as sworn to by the witnesses, such as, "You will be paid when I am dead;" "No court will censure a child for being kind to a parent;" that they "should be paid in a lump after his death"; and that "it would do more good if received all at once,"—are entirely consistent with the notion that Addison was to be paid by being remembered in the testator's will.
In the will made in 1893 he leaves Addison $2,000, and a wood lot (leaving Stephen another wood lot), and, after some gifts to others, directs that the residue shall be divided between Addison and Stephen. In the codicil of August, 1895, a month before his death, he transfers the gift of the second wood lot from Stephen to Addison. The complainant's case must rest upon the insistence that the testator more than once told Addison to send in a satisfactory bill after his death. Whether the testator did say this, or used expressions amounting to this, is to my mind very doubtful. The reproductions of verbal expressions after so long a period, especially when the interest of the witness is to make those expressions bear a certain meaning, are to be regarded with vigilant scrutiny.
There is, however, this to be said, namely, that, if it had been the intention of the testator to pay for his board and for these services by a legacy, it seems to me he would have said so in his will. The testator was a lawyer as well as an intelligent business man; and I think most men, under the circumstances, apprehending, as he did, that his will would probably be litigated, would have made it clear that the legacy was given for services which he had received, and so set at rest any question as to its purpose.
I conclude, therefore, that, while it is reasonably clear that the testator had by his language at different times led the complainant to believe he was to be paid for his services after testator's death, it is not clear that those services were to be paid by a legacy. Therefore a debt arose. But the legacy left to Addison cannot be regarded as satisfaction for the debt, in whole or in part. A promise to pay for services, some of which lie in the future, is not without consideration. It follows, therefore, that the complainant is entitled to compensation. What amount shall be awarded?
The complainant claims for board from 1872 to September, 1895. It appears that up to 1878 Addison was living upon his father's farm. In 1878 the title to the farm was put in Addison's name, but upon what terms as to payment does not appear. While the testator may have established his domicile there in 1872, it is quite apparent that he did not become a boarder there at that time. The testator, in 1869, had moved from this farm to the Cranbury Neck farm, which his first wife had received by. Inheritance. He lived on the Cranbury Neck farm until the spring of 1877, when, his wife having died, he, with Stephen and Miss Robinson, moved into Hightstown. During this time he undoubtedly visited at Addison's,—sometimes remaining there for days,—but he did not live at Addison's. He did not make his home there until about the first of 1880. He remarried in 1886, and was away from Addison's about one year, and then, after the death of his second wife, returned. So he was living at Addison's about 15 years. He did not live there as a stranger, but as one of the family, interested in his son and his grandchildren. Addison seems to have had the liberty of using the testator's horse, when not used by the testator, and he did use the animal. Hardly a week passed in which the testator did not buy groceries and butchers' supplies, which were used in the family. He paid some of the school bills for his grandchild. His stay at Addison's seems to have been interrupted by visits elsewhere.
Regarding all the conditions, I think $1,500 is a reasonable compensation for the board of himself and horse during these 15 years, and this includes the services rendered by the family of Addison.
I do not think any promise was made by the testator to pay Addison's wife separately for the special care which she took of him, by which (with Addison's concurrence) she acquired a right to sue. Whether, if she had a separate claim suable at law, this court would entertain jurisdiction of it, it having been manifestly voluntarily assigned to the husband for the purpose of bringing suit in this court, is a question not necessary to decide.
I will advise a decree for the complainant of $1,500.