On appeal from Superior Court, Chancery Division.
For affirmance -- Justices Heher, Wachenfeld, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt, and Justices Case and Oliphant. The opinion of the court was delivered by Wachenfeld, J. Case, J. (dissenting). I am authorized by the Chief Justice and Mr. Justice Oliphant to state that they join in this dissenting opinion.
[4 NJ Page 184] Thomas S. Sands married his second wife, Emma A., in 1916 and died in July, 1938, leaving a
last will and testament wherein, after directing all his debts and funeral expenses be paid, he gave the rest, residue and remainder of his estate to his son, William M. Sands, and daughter, Elizabeth S. Hughes, in equal shares upon condition they "shall provide a home and maintenance for my wife, Emma A. Sands, for and during her natural life, if she shall so long remain my widow. In the event of her remarriage, this obligation on the part of my said son and daughter shall cease. The provisions heretofore made for my said wife, Emma A. Sands, shall be received and accepted by her in lieu of dower in my real estate." The will was dated June 28, 1937.
Shortly after the will was probated, Emma A. Sands executed several instruments at the request of the executors releasing her right of dower in and to the real estate owned by the decedent at the time of his death and accepted in lieu thereof the benefits stipulated in the will.
During the latter part of her life, Emma A. Sands alleged she was ill and had to expend various sums of money for medical expenses for which no reimbursement was made. In April, 1948, she brought suit in the Court of Chancery against the defendants, William M. Sands and Frederick W. Hughes, as executors under the will of Thomas S. Sands, against William M. Sands individually, and against Elizabeth Hughes, charging the defendants failed to furnish proper maintenance in accordance with her needs and necessities, causing her to expend substantial amounts of money for her maintenance; that she had become ill and was under the care of a physician and despite requests and demands the defendants refused to take care of such needs and had not properly maintained her in accordance with the terms of the will of her husband.
The cause was referred to Vice-Chancellor Jayne and, after a pretrial conference, it was set for hearing on December 15, 1948. On October 30, 1948, Emma A. Sands wrote a letter to Judge Jayne, so designated by the new Constitution, and to counsel in which she said she did not realize what it really meant when the suit was started and asked that it be discontinued "as I have always been satisfied with the support
that I have received from those in charge." As a result of this letter, an order of dismissal was filed December 1, 1948.
Emma A. Sands did not remarry. She died January 6, 1949, leaving a will executed June 29, 1937, which gave her estate to a son of an earlier marriage, Norman R. Stryker, and appointed him sole executor. On March 28, 1949, the son, as executor, filed his complaint setting forth the facts herein narrated and alleging he had expended the sum of $650 on account of the funeral expenses for the burial of Emma A. Sands and asking, amongst other things, that the defendants, William M. Sands and Elizabeth S Hughes, be required to pay to him the medical expenses and funeral bills.
In a pretrial order it was stipulated the cause be decided upon the admitted facts therein contained. The court entered judgment for the defendants, holding the plaintiff's right to maintain the action as executor of the estate of Emma A. Sands rose no higher than that of the decedent in her lifetime and that the nature and extent of the maintenance to be furnished depended upon the intention of the testator as expressed in his will and the funeral expenses were not comprehended or included therein. Appeal was taken to the Appellate Division and certified here.
The disclaimer written by the testatrix, inferentially at least, indicates the litigation instituted in her lifetime was stimulated and coerced. She expressed a lack of knowledge as to its true import and a complete satisfaction with the support and maintenance received, being fully cognizant of the refusal of the executors of her husband's estate to pay the medical expenses allegedly incurred.
This conclusion was never changed during her lifetime but upon her death the claim she had waived and which she had directed in writing be discontinued and withdrawn was again made. She was satisfied but her contentment did not, together with her estate, descend to her heir, who shortly after her death demanded what she in her lifetime in effect had forgiven. The anxiety of the plaintiff to reverse the determination of his testatrix and selfishly acquire for himself what she never wanted is in part indicated by his premature
institution of suit on March 28, 1949, long before he was qualified as executor, which did not occur until April 26, 1949.
This was the factual background which the court leaned on heavily in disposing of the demand for medical expenses, holding the representative's right to maintain a particular action is no greater than the right possessed by the decedent.
The testatrix in her lifetime expressed full satisfaction with the support she received and abandoned her claim for medical expenses after mature thought and consideration. The estate of the testatrix represented by the plaintiff is bound by the act of the testatrix. Her act is his act and her waiver of any of her rights is his waiver. Levy v. N.Y. Life Ins. Co., 238 App. Div. 711, 265 N.Y. Supp. 377 (1933); affirmed, 266 N.Y. 570, 195 N.E. 204 (1935). By her letter she acquiesced in the defendants' contention that they had supplied adequate support to her and should not be held liable for the alleged medical expenses which were the basis of her original action and a part of the plaintiff's claim here. In a somewhat similar situation, the court, in Topkis v. Delaware Hardware Co., 23 Del. Ch. 125, 2 A.2d 114 (1938), held:
"If Louis Topkis were living and were the complainant in this bill and were admitted to have acquiesced in what the amendment of 1924 accomplished, he would not be heard after all these years to ask a court of equity to take from the individual defendants what he had freely bestowed and to undo transactions which, if he did not suggest, he was aware of and acquiesced in. His executor's rights can rise no higher than his."
So, here, the waiver and acquiescence of the plaintiff's testatrix should be, as it was, taken into consideration by a court of equity before it takes from these defendants money the plaintiff's testatrix did not think she was entitled to and to which she affirmatively disavowed any claim. We think there was justification for denying a recovery in this regard and are content with the disposition made by the court below.
This, too, disposes of the question raised as to the court's right to receive and consider the contents of the letter referred to. The pretrial order recited that the earlier suit
was dismissed as a result of the letter, fairly presupposing that the court would consider its contents, which would seem necessary in order intelligently to pass upon the facts involved. Any statements made by the testatrix which would be evidential against her were she still living and the plaintiff in this suit are equally evidential against her executor. Brice v. Atlantic Coast Electric Ry. Co., 102 N.J.L. 288 (Sup. Ct. 1926); Stiles v. Newschwander, 139 N.J. Eq. 1 (Ch. 1946). Why the truth or the motivating reason for the testatrix' change of attitude should be kept secret from a court striving for essential justice is beyond our comprehension. Material facts are not to be withheld and justice is not to close her eyes while the evidence is being offered and received. Careful scrutiny and full material ...