Judges： Davies
Filed Date： 9/15/1867
Status： Precedential
Modified Date： 11/15/2024
John Mullanphy resided at St. Louis, in the state of Missouri, and made and published there his last will, dated the 27th February 1830, to which were added three codicils, the last being dated the 23d November 1831. The said John Mullanphy died at St. Jjouis, on the 29th August 1833, seised of certain real estate, located in the city of New York. He left him surviving, Elizabeth' Mullanphy, his widow; a son, Bryan Mullanphy; and six daughters, namely, Octavia, then the wife of Dennis Delaney; Eliza, wife of James *Clemens, Jr.; Jane, wife of Charles Cham- ’ ’ ’ bers; Catharine, wife of Richard Graham; Ann Biddle, widow of Thomas Biddle; and Mary, after-wards the wife of General William S. Harney.
On the 7th day of August 1840, a bill was filed in the court of chancery of the state of New York, for the partition or sale of certain lands whereof the said John Mullanphy died seised, including the lands purchased by the appellant at the sale hereafter mentioned; and in said bill, Elizabeth Mullanphy, Bryan Mullanphy, Dennis Delaney and Octavia his wife, and James Clemens, Jr., and Eliza his wife, were the complainants; and Charles Chambers and Jane his wife, Richard Graham and Catharine his wife, Ann Biddle, William S. Harney and Mary his wife, John O. Fallon, one of the executors named in the will of said John Mullanphy (Thomas Biddle, one of the other executors, having died before the said testator, and George Collier, the other and third executor, having renounced said executorship, and declined to act as such, or as a trustee under said will), and Ellen Chambers, John Chambers, Owen Chambers, Margaret Chambers, Jane Chambers, Jr., Eliza Chambers, Ann Chambers, Mary Chambers, Thomas Chambers and Bartholomew Chambers, all children of the said Jane Chambers, were the defendants.
The said bill was verified the 10th July 1840, and
That said paper writings, so admitted to probate in the state of Missouri, were not, by virtue of the proofs there taken, and of the final decision there had, to be regarded as proved, within and according to the laws of the state of New York, so as to disinherit the right heirs-at-law of the said John Mullanphy, or to bar their claims, as such heirs, to their shares in the said lands, and if the same be set up for that purpose, the same ought to be first duly proved and established according to the laws and usages of the state of New York. That comP^nan^s were advised and ^believed, that even should the said paper writings be admitted to probate in this state, the same contain divers bequests, devises, directions and provisions, contrary to the laws of New York, which, or some of which, under the said alleged will and codicils, are void. That the complainants did not admit that the said paper writings were legal or competent evidence of the last will and testament and two first codicils of the said John Mullanphy, deceased, or that they were rightfully and properly admitted to probate in Missouri.
That the defendant John O. Fallon alone qualified as the executor of the 'said alleged will, but that he expressly refused, and still refuses, to assume upon himself the trusts therein contained, or any of them, and that George Collier, therein named as the other executor, expressly renounced and refused to qualify or act, either as an executor or trustee, under the said alleged will; that the said alleged trusts were without any trustee; and that the title to the said trust-estate,
That the defendants, Charles Chambers and Jane his wife, had, at the time of the death of the said John Mullanphy, eight children living, that is to say, Ellen Chambers, John Chambers, Owen Chambers, Margaret Chambers, Jane Chambers, Jr., Eliza Chambers, Ann Chambers and Mary Chambers; and that, since the death of the said John Mullanphy, the said Charles Chambers and Jane his wife, had two other children, that is to say, Thomas Chambers and Bartholomew Chambers, all of which ten children were living, unmarried, and all of whom were infants, excepting Ellen Chambers, who was of full age.
The following proceedings were had in said chancery suit: On the 25th day of August 1840, an order was made and entered in said suit, that all the defendants therein severally appear and answer the said bill by the 26th day of December then next ensuing, or that the said bill be taken as confessed by them; and that, within twenty days from the date of the said order, the complainants cause a copy thereof to be published, for three months at least, once in each week, ^successively, in the state paper, and in the New York Commercial Advertiser, a paper printed in ■the city and county of New York, in which such premises are situated, and which order contained a description of the premises affected by said suit. The order was published accordingly. On the 30th day of December 1840, an order was made.and entered in said suit, by which the said bill was taken as confessed by all the defendants.
On the 31st day of December 1840, an order was made and entered in the said suit, referring it to David Codwise, Esq., one of the masters in chancery, to take proof of the complainant’s title and interest in the said
On the 29th day of April 1841, a decree was made and entered in the said suit, by which it was ordered, adjudged, declared, determined and decreed, in substance, that the said report be, and the same was thereby, ratified, approved and confirmed. It was also decreed, that the seven children of John Mullanphy, deceased, above named, were each seised and entitled to the one equal undivided seventh part of the said lands described in the said bill, with the appurtenances, subject to the dower and rights therein of the complainant, Elizabeth Mullanphy. That the defendants, John O. Fallon, Ellen Chambers, John Chambers, Owen Chambers, Margaret Chambers, Jane Chambers, Jr., Eliza Chambers, Ann Chambers, Mary Chambers, Thomas Chambers and Bartholomew Chambers, were not, nor were any or either of them, seised of, or entitled to, any share or interest in the said *lands, or any part thereof, as tenants in common, or otherwise. That the said lands described in the said bill should be sold at public auction, and that the proceeds thereof be divided among the several parties entitled thereto, according to the provisions of the said decree,
Afterwards, and on the 11th day of June 1847, a bill of revivor and supplement was filed in said suit, in which bill (which was verified on the 26th day of May 1847), James Clemens, Jr., and Eliza his wife, were the
On the 26th day of May 1848, an order was made and entered in said suit, appointing the clerk of the city and county of New York, guardian ad litem .of infant defendants, Ann B. Harney, Eliza Harney and John Harney. Pending the proceedings on the said bill of revivor, the defendant Octavia Delaney intermarried with Henry Boyce; and on the 22d day of October 1849, an order was made and entered in said suit, that the same stand and proceed against the said Boyce and wife, and that the plaintiffs amend their proceedings, by adding the names of the said Henry Boyce and Octavia his -wife.
On the 4th of May 1850, an order was made and entered in the said suit, referring it to Aaron Vanderpoel, Esq., to take proof of the several matters set forth in the said bill of revivor; and by his report, dated January 1851, the said referee reported that the said several matters were true as therein stated. On the 1st day of April 1851, a decree was made and entered in said suit, by which it was ordered, adjudged and decreed, that the said report stand confirmed; that a portion of the said premises be sold, and that a portion thereof, including the lands affected by this proceeding, be partitioned among the heirs of the said John Mullanphy.
By an order made and entered on the 16th day of August 1851, Aaron Vanderpoel, Daniel P. Ingraham and John Cochrane, Esq’s, were appointed commissioners to make partition of said lands. By tlie report of the said commissioners, dated the 22d day of November 1851, it appears, that the said commissioners made actual partition of the said premises among the several
On the - day of November 1851, a judgment was made and entered in said action, by which it was ordered, adjudged and decreed, among other things, in substance: That the said report of the said commissioners in partition, and all things therein contained, should be ratified and confirmed; and the said partition so made by the said commissioners should be final and absolute as to all and singular the parties to said suit, and to those claiming, or to claim, from, through or under them, subsequent to the commencement thereof; and that each of the parties to said suit, to whom shares or portions of said premises had been by said commissioners set apart in severalty, should have, hold and possess such shares or portions, free, clear and discharged from all claim, right, estate or interest therein from any other or others of such parties.
The said Bryan Mullanphy, one of the complainants therein, died on the 15th day of June 1851, after the entry of the interlocutory judgment or décree in said suit, settling and determining the interests of the seven children of the said John Mullanphy, deceased, of, in and to said premises, to be that each of them was entitled to an undivided seventh part therein, and, as we may infer from the papers used on this motion, unmarried, and without issue. He left a last will and
This action was commenced on the 29th day of October 1863, for a partition of the lands set off and partitioned to James Clemens, Jr., and Eliza his wife, in the suit commenced in the court of chancery on the 7th day of August 1840, and which was partitioned and set off to the said James Clemens, Jr., and Eliza his wife, in the right of said Eliza. The said Eliza having, in the mean while, died intestate, and leaving her surviving, her said husband, James Clemens, Jr., and three sons, namely, James B. Clemens, Bryan M. Clemens and Jeremiah M. Clemens, and two daughters, namely, Helen J. Clemens and Alice B. Clemens, her sole heirs-at-law. This action was instituted by the said James B. Clemens, as plaintiff, making all other persons interested in the real estate of said Eliza Clemens, deceased, parties defendant thereto. On the 6th of June 1864, a judgment was duly entered in said action, wherein and whereby it was ordered, adjudged and decreed, that the premises described in the complaint therein, should be
The said purchaser subsequently refused to complete said sale, alleging and claiming that said referee’s deed would *not convey to him a good and perfect title to the said premises so purchased by him. The supreme court at special term made an order compelling and directing said purchaser to complete his title, and, on appeal, the said order was affirmed by the general term, and the purchaser now appeals to this court.
The question which lies at the foundation of the title to the premises which the appellant purchased at the sale, pursuant to the judgment in this action, is, did John Mullanphy die intestate as to the real estate possessed by him situated within this state? If he thus died intestate, so that such real estate descended to his heirs-at-law, it will not be difficult to demonstrate, that the referee’s deed will convey a good title to the premises purchased by the appellant.
It certainly cannot be of any moment, how the fact of intestacy may be established. Whatever road we take to arrive at that result, the effect is the same, and the consequence produced is identical. The facts disclosed in the motion papers show that there are three modes or processes by'and through which that result may be reached: 1. By an adjudication of a competent court, having jurisdiction of the subject-matter and the parties, adjusting and settling the same: 2. By the circumstance, that if a will has been made and executed
We have seen, that a suit was instituted in the court of chancery in this state, on the 7th of August 1840, in which all the children and heirs-at-law of the said John Mullanphy *were made parties, either as complainants or defendants. In addition thereto, the children of Mrs. Chambers, one of the daughters of John Mullanphy, were also made parties defendants, and also, in addition, John O. Fallon, the sole surviving executor named in the alleged will of the said John Mullanphy. The complaint therein alleged, in substance, that the said John Mullanphy, as to the real estate whereof he died seised, situated within the state of New York, had died intestate, and that the same, upon his death, descended to his said son Bryan, and to his six daughters named, parties to said suit; that they were his sole heirs-at-law, and as such, were severally seised of the said land, as tenants in common, each to one undivided seventh of the said lands. Now, all the parties interested in that question were before the court, or brought before it, during the progress of the action, and before final judgment.
1. There were present in court the son and the six daughters of John Mullanphy, and the husbands of such of the daughters as were married.
It is claimed on the part of the appellants, that nine of these children being infants, the court acquired no jurisdiction over them, as no guardian ad litem was appointed to appear for them to protect their interest. The 2d section of the act of 21st April 1831 (Laws of 1831, ch. 200), which was in force when the partition suit was commenced, in August 1840, authorized the court of chancery, on the publication of an order requiring non-resident defendants, whether minors or of full age, to appear and answer in a partition suit, to make a decree or order for taking the bill of complaint as confessed against all said non-resident defendants. It has been supposed, that the act of 25th April 1833 (Laws of 1833, ch. 227) repealed the act of 1831, and this seems to have been the opinion of the Chancellor in Minor v. Betts (1 Paige 596). A careful reading of this act shows that its object was to authorize the Chancellor to appoint an officer of the court guardian ad litem for minors, in a partition suit, for whom no suitable or disinterested *person shall voluntarily signify his consent in writing to act as such guardian. It does not in terms repeal the act of 1831. And as it does not conflict with the provisions of the latter act, both may be assumed to stand, and both are published by the learned author of the statutes at large, as existing statutes at this day. (See Edmonds’s Statutes at Large, vol. 4, pp. 612-13.)
But the youngest of these children must have attained full age, more than six years since, and this long acquiescence by them in this decree, would now preclude any attempt on their part to set it aside, for any irregularity of the kind now pointed out. It will be assumed, that if the children of Mrs. Chambers were needful parties to the original partition suit, they were properly made such, and the judgment or decree therein effectually
3. If there was any valid will of John Mullanphy in existence, and any legal and valid trusts were created by it, then John O. Fallon (if a trustee under the will) was a proper and necessary party to that suit, as representing those interests. By the alleged will of John Mullanphy, he appointed John O. Fallon, Thomas Biddle and George Collier, the executors of his will. Although he assumed to create trusts, by the terms of his will, and evidently intended to name trustees, yet, it appears, that, in fact, he did not name any, but left the space for their names blank. There were, therefore, no trustees in this will. But if it be assumed, that the testator intended, that his executors named should be the trustees under the will, and act as such, then, as Biddle had died before the testator, and Collier had distinctly and unequivocally renounced in writing, and declined to act as executor or trustee, and it also appearing that letters testamentary had been issued by the court in St. Louis to Fallon alone, and that he alone had taken upon himself the burden of administration of the estate of said John Mullanphy, under said alleged will, the principles settled by this court in Mead v. Mitchell (17 N. Y. 210) are pertinent to the question as to the effect of Fallon being a party in the chancery suit. It was there held, that under our statutes, an actual ^partition or sale, under a judgment in partition, is effectual to bar the future contingent interests of persons not in esse, though no notice is published to bring in unknown parties, and though such future owners may take as purchasers under a deed or will, and not as claimants under any of the parties to the action. And also that, independent of the statute, contingent remaindermen, or persons taking under an executory devise, who may thereafter come into being, are bound by the judgment, as being virtu
4. Upon the death of Ann Biddle, one of the daughters and heirs-at-law of John Mullanphy, her interest in the premises sought to be partitioned in the chancery suit passed, by her will, to the trustee named therein, Louis G. Picot, in trust for Mrs.- Harney for life; and after her death, to the use of all and every of her child or children. It was proper to do as was done, therefore, to bring in, by a bill of revivor, as parties defendants, Picot, the trustee under the will of Mrs. Biddle, and the children of Mrs. Harney, for whom, they being minors, a guardian ad litem was appointed. These minors were regularly and properly before the court.
5. Mrs. Delaney having married Henry Boyce, he was, therefore, properly made a party defendant.
Thereupon, on the 29th day of April 1841, a decree was made, adjudging and determining, in substance and effect, that the said John Mullanphy had died intestate as to the said real estate whereof partition was sought in said suit, and that the seven children named of the said John Mullanphy were each seised and entitled to the one equal undivided seventh part of the said lands described in the said bill. And on the 1st day of April 1851, a decree was also made and entered in said suit, upon said bill of revivor and supplement, by which it was also ordered and adjudged that the matters stated in said bill of revivor were true. And on the-day of November 1851, a final judgment was entered in said action, whereby it was adjudged and decreed, that the report of the commissioners in partition, and all things therein Contained, be ratified and confirmed ; and that the said partition, so made by the said commissioners, be final and absolute, as to all and singular the parties to that suit, and as to those claiming from, through or
It is difficult to perceive any substantial reason, why this adjudication of the rights of all parties under this will, if it be assumed to be the last will and testament of John Mullanphy, should not be final and conclusive. It is confidently believed, that none is suggested; and a careful examination of the facts presented, and the principles of law applicable thereto, leave a firm conviction upon the mind, that none exist. All persons interested in being were parties to the suit, and the proper person to represent those not in esse was also a party. In Blakely v. Calder (15 N. Y. 617), the court held, that a judgment in partition is binding upon the parties, if the court had jurisdiction of them and of the subject-matter of the action; and also that the supreme court is one of general jurisdiction in law and equity, and has jurisdiction of all actions for partition; that it was its province to decide whether it was a proper one in which to award a partition or a sale, and if its decision was erroneous, the remedy was by an appeal. As no one but the parties to the action could call in question the purchaser’s title, and as they were bound by the judgment, it was held in the case, that there was no reason why the sale, in that case should not be consummated, by compelling the purchaser to take the title.
So, in the case at bar, all persons interested in the real estate of John Mullanphy, were parties to the action in the court of chancery, and are bound by the judgment therein. It is thoroughly well settled, that matters which have been once determined by judicial authority,
But it is urged on the part of the appellants, upon this argument, that it does not distinctly appear, by the judgment in the chancery suit, that the court adjudged that John Mullanphy died intestate, or that the will alleged was void. It was not essential to create an estoppel, that these matters should have been adjudicated in precise terms. It is sufficient, that the substance was so decided, and, as already observed, it was thus disposed of by the judgment, in declaring that the real estate, whereof the said John Mullanphy died seised, descended to his seven children, and that each was seised and entitled to the one equal undivided seventh part of the said lands. It is laid down, as well settled, that the estoppel extends, beyond what appears on the face of the judgment, to every allegation which, having been made on one side and denied on the other, was at issue and.determined in the course of the proceedings. (2 Smith’s Leading Cases, p. 787; Outram v. Morewood, 3 East 346, 855; Stewart v. Hughes, 31 Penn. St. 381.)
The burden of proof is, of course, on those who rely upon the estoppel, and they must show that the matter now in controversy has been already heard and deter
The well-established rule is clearly and well stated by Judge Hogeboom, in Harris v. Harris (ubi supra). He says: “ The general rulo on this subject is well known to be, that a former judgment of the same court, or of a court of competent jurisdiction, directly upon the point in issue, is, as a plea, a bar, or as evidence, conclusive, between the same parties, or others claiming under them, upon the same matter, directly in question, in a subsequent action or proceeding.” And he adds: “Such judgment or adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties, might have been litigating and have had decided as incident to, or essentially connected with, the subject-matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and. of defence.” (Citing Bruen v. Howe, 2 Barb. 586; Embury v. Conner, 3 N. Y. 511; Hare v. Baker, 5 Id. 357; Davis v. Talbot, 12 Id. 184; Hayes v. Reese, 34 Barb. 156.) This court said, in Embury v. Conner (supra), that an allegation on record, upon which issue has been once taken and found, and a judgment has been rendered, is, between the parlies taking it, and their privies, conclusive, according to the finding thereof, so as to estop the parties, respectively, from again liti- ‘
All the heirs of John Mullanphy are, therefore, for ever estopped, by the judgment in the chancery suit, from setting up or claiming that the said John Mullanphy did not die intestate, and that, upon his death, the real estate whereof he died seised, situate within the state of New York, did not descend to his seven children as his heirs-at-law, in equal portions or shares. Such being the settled law, Mrs. Clemens, *and those claiming under her, are estopped from setting up any other or greater estate or interests in the said real estate of the said John Mullanphy, than that partitioned and set off to her by the proceedings and judgment in the said chancery suit, and each of the other heirs are, in like manner and to the same extent, estopped from setting up or asserting any such claim. It follows, that Mrs. Clemens, by the judgment of a court of competent jurisdiction, in a suit in which all persons interested in the subject-matter of the litigation were parties, was declared entitled to hold in severalty in fee, the portion of the said real estate so partitioned and set off to her, and each of the other heirs of John Mullanphy, to hold, in the same way, the portions partitioned and set off to them, respectively; and their rights, as thus declared, are res adjudicata. Mrs. Clemens had, therefore, a good title to her portion, free and clear of all and every claim of each and all the other heirs of the said John Mullanphy. The regularity and validity of the judgment in the chancery suit are assumed, and that such suit did not abate by the death of Bryan Mullanphy, one of the complainants therein, before the final judgment.
By an amendment of the Code, passed the 10th July 1851, its provisions were made applicable to suits then pending, as to all subsequent proceedings therein. And by § 121, as then passed, it was provided, that no action
This clearly appears by the report of the case of Boyce v. City of St. Louis (29 Barb. 650). That action was commenced by Octavia Boyce, a sister of Bryan Mullanphy, for a partition of the lands partitioned and set off to him in the chancery suit, and of which he died seised, leaving him surviving, his five sisters, of whom the plaintiff was one. The parties to that action, other than *the city of St. Louis, were the four surviving sisters of the said Bryan Mullanphy, deceased, and their husbands, and the surviving children of a deceased sister of said Bryan Mullanphy. The city'of St. Louis was made a party defendant,, as claiming one equal undivided third part of the real property sought to be partitioned, under the said alleged last will and testament of the said Bryan Mullanphy. The city of St. Louis, in her answer, set up such last will and testament, and a devise and bequest to it of one-third part of the testator’s property, real and personal; the substance of this will has already been stated. The supreme court held the will to be void, upon two grounds: First, that a foreign corporation, not authorized by its charter to take and hold real estate, cannot take by devise land lying within this state. Second, that the city of St. Louis had not capacity to take real estate for the charitable purpose and intent specified in this will. It might also have been added, that the devise was void, as being in contravention of the provisions of the revised statutes, which had abolished all uses and trusts in real estate within this state, except as authorized and modified
We must therefore hold, that Bryan Mullanphy died intestate, as to his real estate situated within the state of New York; and, consequently, upon his death, the chancery suit did not abate, as all his interest in the subject-matter of the litigation therein went to and became vested in his five sisters, then parties to that suit. The cause of action, therefore, survived and continued in the other parties to that action.
*It is also very apparent, if this adjudication made in the chancery suit was not interposed, from the facts appearing in these motion papers, that the alleged will of John Mullanphy could never be established in this state as a lost or destroyed will. (Harris v. Harris, 36 Barb. 88-95; Schultz v. Schultz, 35 N. Y. 653.)
It is unnecessary to proceed with the discussion of the question, whether, if the said alleged will of John Mullanphy were proved and established as his last will and testament, the said will contains a valid disposition of his real estate within this state, or is wholly void. As already observed, this question has, in effect, been decided in the chancery suit, when all proper parties were beforé the court, and it would be as unseemly, as it would be unjust to them, in their absence, and without a hearing on their part, to open that discussion, and proceed again to adjudicate that question. It must be
There is no allegation that the proceedings in the present action for the partition and sale of the said real éstate of Mrs. Clemens have not, in all respects, been regular, nor that all proper persons have not been made parties thereto.
We are of the opinion, that the appellant acquired a good title to the nine lots of land purchased by him at the sale, pursuant to the judgment in the last-mentioned action; and the order of the supreme court, compelling him to complete his purchase, should be affirmed, with ten dollars costs.
Judgment affirmed.