Opinion
09-01-1897
SCHWEITZER v. BONN'S EX'RS.
Garrick & Ewald, for petitioner. George G. Tennant, pro se.
Petition by Maria M. S. Schweitzer, one of the complainants in a bill filed by her and others against the executors of John H. Bonn, deceased, to open certain decrees made in said cause to permit her to amend her bill by setting up that by the law of France she is entitled to one-half the fund in controversy and to permit her to prove the same. Dismissed.
For former proceedings in the cause, see 31 Atl. 24.
Garrick & Ewald, for petitioner.
George G. Tennant, pro se.
PITNEY, V. C. The bill was filed by the petitioner, Maria M. S. Schweitzer, widow, and two infant children by a former marriage, of Emile Schweitzer, deceased, a resident and citizen of France, against the executors of John H. Bonn, late of Hudson county, to recover the estate of the deceased in the hands of Bonn as his administrator, and also to settle the rights of the complainants inter sese to the fund when recovered. The bill sets out a will made by the deceased, as follows: "This is my last will and testament. I, the undersigned, Emile Schweitzer, gentleman of independent means, residing at Dax, declare this to be my last will and testament, to wit: I bequeath to my second wife, Maria Martha Seglias, the sum of twenty thousand francs. I name Mr. Jules Cazalis, contractor and proprietor, of Dax, as guardian of my two children. My children shall be in the custody of my second wife until they arrive at their majority, providing she does not remarry, in which case she shall not have the twenty thousand francs. I annul any other will.Dax, the 24th of February, 1887. Emile Schweitzer." Litigation took place upon this bill with the representatives of Bonn, resulting in a considerable increase over the amount charged to him by the orphans' court, as reported in Schweitzer v. Bonn, 31 Atl. 24. The estate recovered was about $30,000, and was paid into court in installments,—some before decree, and some afterwards. The widow, by her bill, expressly claimed the 20,000 francs mentioned in the will, without any limitations being imposed thereon, but did not set up the community law of France, or make any claim under it. The infants were represented in the bill by Mr. Cazalis, the guardian mentioned in the will, as their next friend; and he, as their next friend, joined with the widow in a prayer that the several rights of the widow and the infant children in the fund might be determined by this court. The decree against Bonn's executors was signed March 18, 1895, and expressly reserved for further consideration the disposition of the fund. It appeared in the progress of the cause that the claim on behalf of the widow and children was brought to this country through Messrs. Coudert Bros., of New York and Paris,—highly intelligent, capable, and reliable Franco-American lawyers,—and was by them placed in the hands of Messrs. Babbitt & Lawrence, of Jersey City; that, by the consent of the widow, letters of administration were issued to Mr. Bonn; that a copy of the will of Mr. Schweitzer, and the probate thereof in the French court, were produced and filed in the Hudson county surrogate's office; that Mr. Bonn, after accounting in the orphans' court as administrator, employed as counsel in the matter Messrs. Babbitt & Lawrence, who filed a bill, by Mr. Bonn, as administrator, for instructions as to the disposition of the fund; that, before any proceedings were had under that bill, Mr. Bonn died, and a French advocate came to this country from France, by direct employment of Mrs. Schweitzer, who investigated the affairs of Mr. Bonn, and discovered that the estate of Schweitzer in Mr. Bonn's hands had been improperly undervalued by Mr. Bonn, and the other facts which led to the filing of the bill herein under his direct instructions. In the meantime, and before the decree of March, 1895, part of the fund was paid into court by Bonn's executors. The first payment was $5,000, before April, 1894, and another payment of $7,000 was made in June, 1894. In April, 1894, Mr. Tennant, of the Jersey City bar, was appointed by the ordinary guardian of the infants; and two orders were made to pay portions of the money in court over to the guardian, reserving enough to pay the widow's legacy. These orders were made on the motion of the counsel of the complainants. Up to this time Messrs. Babbitt & Lawrence, at first, and afterwards Messrs. Collins & Corbin, had acted for the complainants—mother and stepchildren—generally. No one had appeared especially for either as against the other. On the 17th of February, 1896, and before the whole amount ascertained by the decree of March. 1895, to be due from the estate of Bonn had been paid into court, Mr. Tennant filed his petition, as guardian of the infants, acting as solicitor for himself, in which he set out the proceedings in the cause up to that time, claimed to be entitled to the whole fund recovered, except 20,000 francs, and prayed that it might be so decreed by the court, and that a decree might be made declaring such right, and that the fund, except the 20,000 francs, be paid over to him as guardian. A copy of this petition, and the notice of motion based thereon, was given to both Messrs. Babbitt & Lawrence and Messrs. Collins & Corbin; and the latter appeared thereto, without answer, and an orderly hearing was had on witnesses sworn in open court. Upon the hearing on this petition a French lawyer from the office of Coudert Bros, was called as a witness by Mrs. Schweitzer's counsel, was sworn, and gave evidence in open court, translating the will of Schweitzer, and the documents constituting the probate thereof, stating the law of France regulating its execution and probate, and showing that it was properly proven; but no mention was made by him, or proof given, of the French law of community. Another witness was called on that hearing, who swore that he had recently seen the stepmother and two children in Switzerland, and generally gave proof of their ages, and that they were the children of the decedent named in the bill. Upon that petition and hearing an order was made April 17, 1896, that all the moneys recovered be paid over to Mr. Tennant, the guardian of the children, except the sum of $3,860, the equivalent in money or account of 20,000 francs bequeathed to the widow, "which sum of $3,860 shall be held until the further order of the court, subject to the rights therein of Mrs. M. M. S. Schweitzer under the terms of the will of Emile Schweitzer, her deceased husband."
In the spring of 1896, after the decree of April 17, 1896. just recited, Mrs. Schweitzer and her two stepchildren came to this country. Messrs. Blair & Crouse were substituted as solicitors for her, and on July 14, 1896, presented a petition, signed and verified by her, setting out the will of her husband, and a brief resume of the proceedings in the cause, including the order directing all moneys except $3,860 to be paid to the guardian of the children, and declaring that she had not married, and therefore was entitled to have the fund of $3,860 paid to her without limitation. No mention was made of the community law of France, or any claim under it. This petition came on for hearing on October 3, 1896. when, after hearing counsel for Mrs. Schweitzer, and Mr. Tennant on behalf of the children, an order was made appointing Mr. Tennant special trustee of the fund of $3,860, and directing it to be paid to him and invested, and the interest paid by him to Mrs. Schweitzer during her widowhood,and, further, that she be paid, either out of the funds in court, or out of the funds in his hands as guardian of the infants, the sum of $1,651.75 for interest on the sum of $3,860 after one year from her husband's death; and the final disposition of the fund of $3,860 was reserved. The decree provided that Mrs. Schweitzer, upon receipt of the arrears of interest, should execute to Tennant, the guardian, "a release releasing and discharging him from all claims beyond the payment of the income to be derived from the principal sum." On the 24th of November, 1896, Mrs. Schweitzer presented a further petition for a modification of the decree made on the 3d of October in respect to that part of the order requiring her to execute a release in the terms mentioned; and on that day (November 24th) an order was made thereon modifying the decree in that respect. This was done upon the ground that the release required might be construed as barring her personal representatives from claiming the fund after her death if she should continue to live single until her death. On the following day (November 25, 1896), Mrs. Schweitzer presented, another petition, setting out a resume of the proceedings in the cause up to that time, and then, for the first time, setting up the community taw of France, and claiming that under it she was entitled to one-half of all the estate of which her husband died possessed, which consisted wholly of the fund in Bonn's hands; claiming that her rights in that behalf had never been passed upon by the court, and praying that they might now be declared, and the guardian of the infants ordered to pay one-half of the fund to her. No action having been had upon this petition, the widow on the 22d of March, 1897, filed another petition, by different solicitors, of which notice was given to Mr. Tennant, in which she again recites the proceedings, and sets forth as an excuse for not having previously advanced her rights under the law of community that the suit as originally constituted was simply one to recover the estate (this was inaccurate, as the bill especially set out the will, and prayed that the rights of the complainants to the fund might be determined inter sese), and that she had never had any interview with her counsel, Mr. Collins, prior to the making of the decree of the 18th of March, 1895, or prior to the decree of April 17, 1896, and that her counsel on the making of the last-named decree was not aware of her right or claim to have the estate; that she, with her children, arrived in this country on the 22d of April, 1896, and found Mr. Collins about to leave for a vacation in Europe, and was recommended by him to Mr. Crouse; and that she employed Mr. Crouse. No excuse was offered for not presenting and proving her whole claim, either in the original bill, or in the petition filed by Mr. Crouse to recover the 20,000 francs. The petition proceeds to state that under the laws of France the petitioner is entitled to the whole income of the estate during the minority of the children, and also to one-half of the whole absolutely; and she asks relief against the decretal order of April 17, 1896, and that she may amend the bill of complaint in such a manner as may be necessary in order to present her right under the community law.
Mr. Justice Collins states in an affidavit annexed to the petition now under consideration that he did not at any time while acting as counsel in this cause know that Mrs. Schweitzer made any claim to any greater estate in, or part of, the estate than the 20,000 francs given by the will; but he does not state that he himself did not know of the community law of France, and that it was or might be open to Mrs. Schweitzer to make such claim. It was admitted by counsel for Mrs. Schweitzer that the previous orders directing this money to be paid to the guardian of the infants (made either upon her application, or in the presence of her counsel) were a bar to the present application, and the court is asked to modify those orders in such a manner as that they shall not stand in the way of the present application, and counsel for the widow offers to submit to terms in that respect Those decrees were made according to the allegation and prayer of the bill, and the proofs before the court. There was neither allegation nor proof of the French community law. That, of course, could not be taken notice of by the court, but was a matter of fact to be proven by evidence offered in court in the same manner as any other matter of fact should be proven. Mrs. Schweitzer does not swear that she was at any time ignorant of her rights in that behalf, and she makes no excuse whatever for not instructing her lawyers to claim her full rights until after her right to the immediate possession of the 20,000 francs had been dealt with. There is no allegation, and no room to suspect, that she has at any time been misled by any mistaken advice from any of her lawyers, who were all men of the highest character for capacity and integrity. The only inference to be drawn from her conduct in this respect is that she hoped and expected to succeed in first getting absolutely the 20,000 francs, with nine years' interest upon it, and then in claiming and getting one-half of the whole estate. She therefore occupies the position of a person who brings a suit to establish an interest in a certain subject-matter, and consciously refrains from putting forward a claim which she has therein, and from proving the essential fact upon which that claim rests, namely, the law of a foreign state, until after final judgment has been rendered in the suit Now, it is quite impossible to read the will without concluding that the husband and father had no thought that his wife could or would make the claim that she now does against his children. His name indicates German origin. The widow is a Swiss. The marriage took placein Switzerland in 1884. She states in her affidavit that her husband was a resident of France, and made her acquaintance in 1884, while visiting Switzerland, and that afterwards he bought a residence at Dax, in France, and lived there two or three years, until he died; that there was no marriage contract; and the absence of any is a necessary part of the petitioner's ease. The neglect to have a marriage contract indicates that the husband was unaware of the community law when he married; for the will, which was a holograph, and written a few days before he died, indicated that he had not lost his affection for his children, or become unduly subject to the influence of his wife. Be that as it may, it is quite clear that the testator did not intend that his wife should have anything more than the use of the 20,000 francs during her widowhood. But, although the decedent may have been unaware of the existence and effect of the French community law, yet the petitioner, if also unaware of it before his death, would naturally have her attention called to it in connection with the legal proceedings following that event. And, as I have already observed, there is nothing on the face of the petition and affidavits to indicate that she has been acting in ignorance of her rights. The question, then, is whether, having, with full knowledge of her rights, twice failed to assert them at the proper time, or to prove the essential fact upon which they are based, and having, by her bill, asked that her rights should be ascertained, and having stood by while they were adjudicated upon, and the subject of the adjudication awarded to others, she shall now be relieved.
The suit, as originally framed and conducted, must be treated, in part, as a suit by the stepmother, the petitioner, against her infant stepchildren to settle their respective rights to this fund. It is impossible to avoid this view. The petitioner was an adult, and entirely capable of looking after her own interests. The children were represented by their next friend, absent from the country. As infants, they were and are entitled to receive the especial care of the court. In this contest the petitioner was not, under the circumstances above stated, at any disadvantage, to say the least. Admitting (contrary to the apparent fact with regard to the proceedings upon Mr. Tennant's petition of February 17, 1896, resulting in the decree of April 17, 1896) that previous to her arrival in this country she had not been especially represented by counsel in direct antagonism to her stepchildren, yet she was in fact represented by counsel, and her counsel did not fail to protect her rights to the extent of her instructions to them. If the community law was overlooked, or not invoked in her behalf, it certainly was not the fault of the counsel employed. And the authorities are clear that if, in point of fact, they had been instructed by her to prove and enforce the community law, and, acting in good faith, had concluded that her position in that respect could not be maintained, their judgment in that behalf, though erroneous, would bind the petitioner. This was distinctly ruled in the case of Perrine v. White, 36 N. J. Eq. 1, and page 632 on appeal. In this case the presumption is that the advancement by the widow of her claim under the will was inserted in the bill by Messrs. Babbitt & Lawrence by her express instructions; and Messrs. Collins & Corbin, who succeeded Messrs. Babbitt & Lawrence as solicitors, and responded to the petition of Mr. Tennant of February 17, 1896, were not without ground for the conclusion that the demand by their client for the 20,000 francs was inconsistent with her claim under the community right, and was, in equity, an abandonment thereof. The case is clearly distinguishable from Day v. Allaire, 31 N. J. Eq. 303, where the solicitor retained refused to take testimony and abandoned the case. There was fraud and absolute neglect on his part, which distinguishes it from this case. But whatever excuse there may have been for her failure through her counsel to advance her rights under the community law, in connection with the petition of February 17, 1896, resulting in the decree of April 17, i896, and prior to her personal arrival in this country in April, 1896, there can be none for such failure since that time. She knew her rights thoroughly when she employed other counsel to present her petition of July 14, 1896, and must be charged with, and suffer the consequences of, her failure then to assert them. I can find no authority for the position that a party having two separate and distinct rights in the subject-matter, who deliberately chooses to assert one of them in a suit at law or in equity without mentioning the other, after having her claim in that respect rejected by the court, can afterwards resort to the claim which was omitted in the first suit. It seems to me that the petitioner stands in the same position as if she had come in personally, when the motion was made in 1896 on behalf of her children to have the whole fund, except 20,000 francs, paid over to them, and had defended the motion simply to the extent of asking to have that 20,000 francs paid to her absolutely. In such case, having failed to set up her defense when she had her day in court, she is barred from setting it up afterwards. The authorities on this subject are clear. Carpenter v. Muchmore, 15 N. J. Eq. 123; Miller v. Hild, 11 N. J. Eq. 25; Brinkerhoff v. Franklin, 21 N. J. Eq. 335. I will advise that the petition be dismissed, with costs.