Opinion
06-30-1899
WELLS et al. v. FLITCRAFT et al.
Herbert A. Drake, for complainants. Frederick A. Rex, for defendants.
Bill by Mary W. Wells and another against T. Harvey Flitcraft and another. Heard on bill, answer, and proofs. Decree for complainants.
Herbert A. Drake, for complainants.
Frederick A. Rex, for defendants.
GREY, V. C. John W. Cheeseman died seised of two houses and lots on Henry street and of one on Fifth street, in Camden. He devised one Henry street house to his wife for life, and directed it to be sold after her death, and gave the other in fee to his son John. He directed the Fifth street house tobe sold on his decease, and gave to his wife the proceeds of sale during her life. He did not devise the fee in either the Henry street house, which he gave to his wife for life, or in the Fifth street house, to any one. The fee in those properties at his death descended to his heirs at law, subject to any sale which might be made under the directions of the will. The proceeds from these sales ordered to be made, he gave to his children, his grandchild, and an adopted child, in unequal shares. His will was proven in February, 1878. In June of 1878, the executors, under the power of sale in the will, sold the Fifth street house to the widow, Elizabeth G. Cheeseman, subject to a mortgage made by the testator in his lifetime to one Sheppard for $1,000. The whole purchase money of this sale, $2,200, was secured by a mortgage made by the widow. In this mortgage money the widow had a life enjoyment; the principal on her death going, as directed by the terms of the will, to legatees, who are here complainants. The testator in his lifetime had mortgaged the Henry street houses to one Murphy to secure the payment of $1,000. This mortgage remained unpaid at the date of March, 1892, and has not been paid since that date. Whether the defendants undertook to pay this mortgage, is one of the principal points in dispute in this case. In December, 1889, old Mrs. Cheeseman, who held title to the Fifth street house by deed from the executor under the power of sale in the will, conveyed that property to the defendant Mrs. Flitcraft, her granddaughter, referred to in the will as Elizabeth Fox. In March, 1892, Mrs. Elizabeth G. Cheeseman, the widow, had been living for some years with Mrs. Flitcraft; and about that date one or more written agreements were made between T. Harvey Flitcraft and his wife, the defendants, and Mrs. Cheeseman, and the children of the testator, in the nature of a family settlement, which have been lost. Precisely what these agreements were, is the very point in controversy in this case. The complainants insist that the lost paper was a written contract by which the defendants agreed, among other things, to support Mrs. Cheeseman for life, and also to pay the mortgage on the Henry street houses. The defendants, by their answer, admit that they contracted to support Mrs. Cheeseman, as part of their undertaking, in the transaction in question, and say that they have done and are doing this; but they deny that they agreed to pay the mortgage on the Henry street houses, by the lost paper, or in any other way. They also insist that the lost paper was a release made by the complainants to them, releasing the complainants' interest in the Fifth street house from the lien of the mortgage thereon made by Mrs. Cheeseman, in which they had a remainder interest. Whatever may have been the form in which the lost paper was framed, the proofs show that it expressed, in whole or in part, the agreement of the parties touching the Fifth street house; and, in my view, they show also that it contained an undertaking on the defendant's part to support Mrs. Cheeseman during the rest of her life. She was quite an old lady, though capable and active, and had for some years before 1892 lived with her granddaughter Mrs. Flitcraft, of whom she seems to be very fond. In addition to the support of Mrs. Cheeseman, there were also payments made by the Flitcrafts to some of the complainants to satisfy them for their interest in the Fifth street house mortgage made by Mrs. Cheeseman to the executors. Flitcraft paid off the Sheppard mortgage on that house, and has ever since 1892 supported Mrs. Cheeseman as one of his household, as he had for a number of years before that date. The strain of the case turns upon the claim of the complainants that the lost agreement obligated the Flitcrafts to pay off the Murphy mortgage of $1,000 on the two Henry street houses. The defendants explicitly deny, not only that the lost contract contained any such undertaking, but that they ever agreed to pay off that mortgage. The lost paper—whether Flitcraft's contract to support Mrs. Cheeseman, and to pay the Henry street mortgage, or the complainants' release of their interest in the Fifth street mortgage—came, it is admitted, to the hands of the defendant Flitcraft, and has been, by him or his counsel, lost. No fraud or purpose to destroy is charged. It is, in my view, quite possible that the paper in question expressed both a release of the complainants' interest in the Fifth street mortgage, and also whatever undertaking the defendants assumed for the benefits they thus derived. In 1897 the complainants notified Flitcraft and his wife that by the agreement they were bound to pay off the Murphy mortgage on the Henry street houses, insisting that they satisfy it. The refusal to acknowledge that the agreement obliged Flitcraft and wife to pay this Murphy mortgage on the Henry street houses was the moving cause of this suit. The prayer of the bill is for the discovery of the agreement and its terms, its deposit with the executors, or, if it cannot be found, then that it may, by decree, be declared and established to oblige the defendants to pay off the Henry street mortgage, and to maintain the widow, Elizabeth G. Cheeseman, during her life, in the family of Flitcraft. The complainants also allege that they have some interest in the Fifth street house, which they admit they are equitably bound to convey to Mrs. Flitcraft upon performance by her and her husband of the terms of the agreement obligatory upon them. The pleadings and proofs show, however, that whatever right the complainants had in the title to the Fifth street house and lot was as heirs at law of the fee. Their title to that land was extinguished by the exercise of the power of sale as alleged in the bill, and their estate was transferred to the mortgage given for the purchase money, the interestof which belonged to Mrs. Cheeseman for her life, and the principal to the legatees named in the will, payable on her death.
On the main point here in dispute, in which the complainants insist that the defendants by the lost agreement undertook to pay off the mortgage on the Henry street houses, there is a flat denial by the defendants that they ever contracted to pay that mortgage, and also that the lost paper contained any such agreement. The burden of proving that there was such an undertaking, and that the lost agreement contained it, rests upon the complainants, who assert it. The proofs submitted by the complainants are directly contradicted by those of the defendants, both as to the making of any such agreement, and also that it was set forth in the lost paper. On the part of the complainants, those witnesses who are most positive of the fact are the most interested to establish it, and, from their manner on the stand, and statements on cross-examination, are the least worthy of belief. Those who are disinterested are hesitant, doubtful, and indefinite in their statement of the fact. The defendants' witnesses on this point seemed to present the more satisfactory proof that the Flitcrafts did not agree to pay the mortgage on the Henry street houses, and that the lost paper did not contain any such terms. One incident seemed to give some support to an inference that there was such an undertaking, and that was that Flitcraft paid the interest on that mortgage since the agreement in March, 1892. Flitcraft is no party to this bond and mortgage, and is under no obligation to pay it, unless by the agreement in question. His wife's interest in one of the houses, to the extent of one-eighth of the net proceeds of its sale, after Mrs. Cheeseman's death, was too small to be any inducement. But whatever inference might have been drawn from this payment was fairly rebutted by proof that Mrs. Cheeseman and her son John Cheeseman, who owned the Henry street houses, were both extremely poor; that Mrs. Cheeseman did in fact pay the interest up to April, 1892, a period shortly after the date of the agreement; and that the payments made since that time by Flitcraft were voluntarily paid by him, simply because of his affection and respect for old Mrs. Cheeseman, who lived in his house and was a member of his family for many years. Of the existence of this relation and feeling between the parties there is no dispute whatever. The mere proof of the payment of interest, when explained in this way, is not sufficient to warrant the violent conclusion that it was paid because Flitcraft, a stranger to the mortgage, had made an agreement to pay it.
The complainants have, however, shown that they surrendered their rights in the mortgage on the Fifth street house in consideration of the payments made to them, and of Flitcraft's agreement to support their mother, Mrs. Cheeseman, during the rest of her life. They have, in my view, failed to sustain, by the weight of the proofs, their claim that Flitcraft agreed to pay off the mortgage on the Henry street houses. But they have exhibited ground for equitable relief in this respect. They purchased and paid for the support of their mother during her life. The lost agreement has, in my judgment, been shown to contain a term which was the evidence of that contract. It is yet executory in its nature, and is continuing in its character, and may at any time require its enforcement, not by one suit, but by as many successive suits as may from time to time, during Mrs. Cheeseman's life, be necessary to secure her a living. This agreement was lost by the defendant or his counsel. The complainants had a right to the security of the defendant's written undertaking to support their mother, and to the cheap and convenient means of proof of the defendant's contract which the production of his written agreement would afford them. The defendant Flitcraft, in his answer, admits that he had agreed to support Mrs. Cheeseman during her life; but when on the stand, giving his testimony in this cause, he seemed to throw doubt on that undertaking. He, by his negligence or by accident, has lost his written contract containing this undertaking, and he has now thrown doubt upon the fact of its existence. In view of the continuing and executory nature of the contract, I think the complainants are, under the peculiar circumstances of this case, entitled to a decree declaring and establishing the agreement on the part of the defendants to support Mrs. Cheeseman during the rest of her life, but they are not entitled to a declaration that the defendant agreed to pay the mortgage on the Henry street houses. The other stipulations alleged to have been contained in the lost agreement have either been actually executed by the defendants preceding this suit, or have been shown not to have been entered into by them. There should be a decree for complainants in accordance with the views above expressed, with costs.