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Foster v. Medela

Decided: October 2, 1950.


Jacobs, Bigelow and Wm. J. Brennan, Jr. The opinion of the court was delivered by Brennan, Wm. J., Jr., J.A.D.


The final judgment before us was entered by Judge Rogers of the Chancery Division on conclusions of the late Vice-Chancellor Woodruff filed after final hearing before the latter on an amended and supplemental bill of complaint in the former Court of Chancery.

When Garrison C. Foster in 1926 sold his 40-acre farm in Evesham Township, Burlington County, to the defendants, his daughter and son-in-law, the entire consideration was a $4,000 purchase money mortgage taken in the names of himself and his wife, Mary Foster. His wife died in October, 1935. The mortgage was cancelled of record February 11, 1943. He was named administrator of his wife's estate on May 11, 1945. On September 28, 1945, he, individually and as administrator, filed his amended and supplemental bill of complaint to set aside the cancellation of the mortgage alleging that it was effected by the fraud of defendants upon him for a grossly inadequate consideration and stripped him of

virtually all his assets at a time when he was almost 86 years of age and under the influence of and dependent upon defendants, and was without independent advice.

The Vice-Chancellor found that the cancellation was valid as to the individual one-half interest of the plaintiff, which finding plaintiff appeals, but ineffective as to Mary Foster's one-half interest because the plaintiff at the time of the cancellation was not clothed with any authority to bind her estate.


Defendants had lived rent free on the farm for several years before plaintiff sold it to them in 1926. They ran the place as a poultry farm. They contracted a feed bill to Kirby Brothers, feed merchants, which by 1931 amounted to almost $4,000 and by 1943 had been reduced only to $3,100. Kirby Brothers held their notes for this debt, which notes and their renewals, the plaintiff, starting apparently in 1931 and continuing to 1942, endorsed for defendants' accommodation. On October 14, 1931, plaintiff and his wife assigned the $4,000 mortgage to Burlington County National Bank in Medford, nominee for Kirby Brothers, as security for the notes and plaintiff's obligation as endorser thereon. The original mortgage was delivered to the bank at that time, but for some reason not revealed by the record plaintiff retained the bond.

Plaintiff came to the farm to live with defendants shortly after his wife's death in 1935 and remained there until he left in the spring of 1944. This was the period of his 76th to 87th years. He apparently enjoyed good health, drove his own car and except for odd jobs about the place devoted his time to his own pursuits and came and went as he pleased and on his own. The relationship appears to have been amicable; at least there is no evidence of unpleasantness or strain until the happening of the events which gave rise to this suit.

Plaintiff was obviously fond of both his daughter and his son-in-law. "I have always helped them out ever since I've

been there. Everything I could do I always done for them." He apparently had no independent means of much value while he lived with them. He owned and still had at the time of final hearing a few acres of unimproved land of little worth, and at some time, not clearly specified, had realized a substantial sum from the sale of another farm. He testified that this money had been spent several years before 1943; this is probably true because his daughter testified that while he lived with them she and her husband gave him not only a home but also bought his clothes and supplied him with small sums he required for spending money.

Late in 1942 defendants decided to rebuild a burned-down brooder house. The daughter testified that she approached her father and told him of this and told him further that she and her husband wanted first "to have a settlement on the place," because they did not want to increase their investment in the farm while both the mortgage and the Kirby Brothers debt were outstanding. She told him she had $500 of her own and that, while she felt she owed him nothing after the years she had supported him, she would give him that sum if he would cancel the mortgage. She said plaintiff ...

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