Chandler v. Pomeroy

STATEMENT BY MR. JUSTICE BROWN.

This was a bill in equity filed September 1, 1888, by the appellant, Chandler, as executor and trustee under the last will and testament of George P. Pomeroy, deceased, against Josephine Pomeroy, Julia Pomeroy Morrison, her husband, William F. Morrison, and Alfred Mills, surviving executor of the last will and testament of George Pomeroy, father of the said George P. Pomeroy, to enforce a certain agreement of settlement between George P. Pomeroy and his sisters, devisees of the estate of George Pomeroy. The bill was subsequently dismissed as to the defendant William F. Morrison, and about the same time Eugene C. Pomeroy, son and heir at law of George P. Pomeroy, appeared by his guardian and asked to be made party complainant, if the court should deem it necessary of desirable, but no order appears to have been entered making him a party.

The case arose out of the following facts: George Pomeroy, of Madison, N. J., died June 24, 1880, leaving a will, dated July 22, 1875, and an estate valued by him a few months before his death at $893,000, consisting of personal property estimated to be worth $538,000, and lands in New Jersey, New York, and Missourivalued by him at $355,000. The personal estate, however, when inventoried, was appraised at $480,000. His family and heirs at law then consisted of his wife, Abba S., and four children, George P., Edward, Julia, and Josephine. His will was duly probated at Morristown, N.J., and letters testamentary issued to Edward Pomeroy and Alfred Mills, who were appointed in the will as his executors. Edward Pomeroy died March 6, 1887, whereby Mills became, and still is, sole executor.

The estate of George Pomeroy was disposed of under his will as follows:

(a) The executors were authorized to deliver to the New York Life Insurance & Trust Company securities to the amount of $50,000, to be held in trust for the benefit of his wife during her life, and upon her death to divide the securities and proceeds equally between the three younger children, Edward, Julia, and Josephine. His wife died in February, 1883.

(b) Securities to the amount of $30,000 were directed to be deposited with the same company, to be held in trust for the benefit of his son George P. during his life, and at his death such securities and the proceeds thereof were also to be divided among the three younger children. George P. Pomeroy subsequently married Harriet Cowles, of Cleveland, who died after giving birth to a son, Eugene C. Pomeroy. George P. Pomeroy himself died in November, 1887.

(c) The testator directed that no partition or sale of his real estate should be made until his executors should have sold real estate to the amount of, at least, $100,000; and further directed that the proceeds of the first of such sales should be deposited with the same company nutil the amount should reach $100,000, which should be held and invested for the benefit of his two daughters, Julia and Josephine, with instructions to collect and pay to each of them the interest on $50,000, and, in case of the death of either of them without issue, to pay such trust fund in equal shares to his son Edward and his other daughter, and the survivor, (if one of them be dead,) the issue of said Edward and of said other daughter representing their parents, respectively.

(d) The residue of the estate, aside from some immaterial legacies, was devised to his three younger children, Edward, Julia, and Josephine, in equal parts. It was provided that the homestead at Madison, N. J., should be kept up by the three younger children so long as they and the widow could live harmoniously together, etc.

As between the two executors, Edward Pomeroy took charge of the personal assets of the estate. As directed by the will, the trust fund of $50,000 for the benefit of the widow, and that of $30,000 for the benefit of George P., were established by placing with the New York Life Insurance & Trust Company the requisite securities.

George P. Pomeroy had been trained for public life, and was abroad most of the time, engaged in the foreign diplomatic service of the United States. During his absence a quarrel arose between Edward and his sisters, Julia and Josephine, in which the latter claimed that he had wasted their estate, and was indebted to them in the aggregate amount of $252,000. To recover this amount the sisters brought suit against Edward in one of courts of New York. In that suit they charged that Edward had speculated in stocks with the funds derived from the estate of his father, and had made large profits in which they should share, and had suffered losses with which they should not be charged. Prior to this suit, however, and in February, 1885, he turned over to each of them securities to the amount of $50,000, besides some small annual payments in cash.

That suit was still pending when Edward Pomeroy died, on March 6, 1887, leaving a will, in which, after making some small legacies to the amount of $6,500, he devised his entire estate to his brother, George, and made him sole executor. His will was duly admitted to probate, May 2, 1887. George P. Pomeroy declined to act as executor, and Frank R. Chandler, the plaintiff, was appointed administrator with the will annexed.

Shortly before Edward's death, namely, February 24, 1887, George P. Pomeroy, then living in Paris, executed a will leaying his entire estate to his infant son, Eugene, then about 7 years old; but in case he should die before reaching the age of 21 years, and without leaving issue him surviving, the estate was to go to Mrs. Martha E. Buckingham and her daughters, Mrs. Chandler, plaintiff's wife, and Rose A. Buckingham, and to the survivor of them, Mary E. Van Aulen, and Frank R. Chandler. Upon certain contingencies, Chandler was to become executor of this will.

When Edward died his brother George was in Europe. Plaintiff Chandler was his business agentin America, and had had general charge of his affairs for some years. Very soon after Edward's death Chandler entered into negotiations with the sisters for the purpose of bringing about a settlement of the controversy, if possible, between them and their brother George P. Pomeroy, and in connection with this certain cable messages passed between George and his sisters in reference to the proposed settlement, which was embodied in an agreement bearing date April 13, 1887, but actually executed May 2d.

This agreement was executed at Morristown, N. J., and was signed, sealed, and acknowledged by George P. Pomeroy, Julia P. Morrison, and William F. Morrison, her husband, and Josephine Pomeroy. After reciting, in substance, that Edward, at the time of his death, was indebted to the three other children, or some one or more of them, to an unknown amount; that the parties desired to settle the estate of their father and their brother Edward without litigation, and to adjust the claims of the parties against Edward's estate, suppressing and terminating the suits brought against him and pending when he died; and that they desired to vacate the provisions of their father's will in order to be equally charged with, and equally to share in, the estates of both George Pomeroy and Edward Pomeroy, and to settle said estates and determine the value of the shares of each of said heirs,-they agreed, in substance, as follows:

(1) The remainder of the estate of George Pomeroy, the father, was to be equally divided among his three living children, Julia, Josephine, and George P.

(2) This division to be made as of the date of the death of the father.

(3) To arrive at the interest to which each should be entitled at the date of the agreement, each was to be charged with the amount he or she had received, with 6 per cent. interest from the date of receipt to the date of the document, payable annually.

(4) The estate of Edward was to be divided and distributed equally between George P. and his two sisters, after payment of his just debts and the specified legacies of $6,500.

(5) In case it should be found that the personal property of said George or said Edward could not be equally distributed in kind, then so much as might be necessary to be sold and the proceeds divided.

(6) The real estate of said George and of said Edward, wherever situated, and by whomsoever held, to be conveyed by good and sufficient deeds so that each of the three parties should hold an undivided third thereof as a tenant in common with the others.

(7) In the division of the said estate, the proceeds or revenue to be derived from the trust fund for the benefit of George P., Julia, and Josephine, created by the will of their father, to be treated as a joint fund and divided equally between them, and, so far as it lay in their power, the parties agreed that the said trust fund should be considered and be the joint fund of the parties.

The bill set forth these facts in substance, and prayed for a decree declaring the settlement valid; that Julia and Josephine render an account of the property received from both estates under such agreement; and that there be a reference to a master to take such account; that the $30,000 trust fund in favor of George P. Pomeroy be delivered to him with its earnings and income; and that the surviving executor, Mills, be directed to proceed and complete the execution of the will, and to pay over to the plaintiff property equivalent to the trust fund of $100,000 in favor of Julia and Josephine; and for a receiver.

The answer of Josephine and Julia denied that, in any of the proceedings preceding the execution of the settlement, any suggestion or mention was made that the several trust funds provided for in the will, the $30,000 for the benefit of George P., or the two funds of $50,000 each for the benefit of the defendants Julia and Josephine, should be included therein; and that nothing was at any time said which led them to suppose that said trust funds were to be included in the proposed settlement; nor was any mention made of any landed estate or of any accounting for moneys received by these defendants or Edward since the death of their father; and that the agreement was signed without consulting counsel, upon the advice of plaintiff that they should not do so. They denied that the minds of the parties met, and averred that they never were a ware that the settlement included these trust funds until after the execution of the settlement, and upon the evening of the same day, when they were informed by plaintiff of its terms, when they at once repudiated that portion of the agreement, and have always refused to recognize it as binding upon them, so far as it proposes to cover the trust funds.

A supplemental bill was subsequently filed praying for an injunction against the prosecution of a certain suit brought by Josephine in New Jersey for a partition of, or sale and partition of, the proceeds of the lands of George Pomeroy; and also of another suit brought by the sisters in Missouri for a partition of the lands of which George Pomeroy died seised. Upon the filing of this supplemental bill an injunction was granted, which is still in force.

Upon the final hearing in the circuit court upon pleadings and proofs the original bill was dismissed for want of equity. 46 Fed. Rep. 533. From this decree the plaintiff appealed to this court.

C. C. Bonney, for appellant.

''Geo. W. Smith and John Maynard Harlan'', for appellees.

[Argument of Counsel from pages 324-326 intentionally omitted]

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.