Swift v. Larrabee

Dutton, J. The late distinguished Judge Swift died in 1823, leaving six children, one of whom, the present petitioner, owing to physical incapacitjr, was unable to provide for himself. He made a will, by which, after making a suitable provision for his widow, he secured a home for the petitioner in the testator’s dwelling house, and gave him a legacy of three hundred dollars in money. Subject to these and some other small bequests, he gave the residue of his estate to be divided among the other five children, on condition that they should annually pay an equal part and proportion of such sum as might be necessary for the support of the petitioner “ in food, drink, clothing, firewood and medicine, in sickness and in health, during his natural life.” The will then provided that in case any dispute should arise respecting the amount of the support, the selectmen of the town of Windham for the time being should have power to decide and ascertain what should be annually paid for his support; and that if either of the five devisees should neglect to pay their portion of such necessary support, or such sum as the selectmen should determine as the amount to be paid annually, the said Henry should have full power to enter upon the land of such devisees neglecting, as should be set off to them as part of the estate, and to hold the same till the sum due for his necessary support should be paid. — 235 — It is obvious that Judge Swift regarded, the future welfare of this unfortunate son with much solicitude, and that he intended to provide, and supposed he had provided, for his comfortable support, secure against any contingency. He undoubtedly depended very much upon the fraternal regard of his other children, supposing that this would ordinarily be a sufficient guarantee that their brother would not be left to suffer ; but if a difference of opinion should happen to arise, the selectmen of the town might act as friendly mediators between them. It apparently did not occur to him that the petitioner would be obliged to treat with any body but near relatives. The facts of the case show how liable are the plans of parents designed to benefit their children to be frustrated. The children of Judge Swift, with the exception of / the petitioner, have all removed from the state, and he is left among strangers. They endeavored to relieve the shares of real estate which were distributed to them, from the embarrassing burden caused by the lien of the petitioner, by making it, so far as they could without his co-operation, a charge upon a portion only of the share of each. They then sold, not only what was thus attempted to be cleared of the incumbrance, but the residue also subject to the incumbrance, and the same is now held by over twenty different proprietors, most of them residing in this state but several of them elsewhere. After the lapse of about forty years the petitioner is found advanced in years and without any means of support except this provision in his father’s will. Up to the year 1861 the petitioner succeeded in maintaining his existence on the amount either furnished by agreement or by the award of the selectmen, although that amount, varying from $110 to $210 per year, seems sufficiently meager as an allowance to a son of a man of the position and means of Chief Justice Swift. No provision has in fact been made for the time since 1861, although the occupants of the particular pieces specially charged by the devisees have been willing to pay such an amount as the selectmen should award. The petitioner declined having the sum determined by them, as one of the three is an owner of some portion of the real éstate of Judge Swift and related to other owners, and another — 236 — is a nepliew by marriage of another owner. Under these circumstances the petitioner has applied to a court of chancery for aid to enable him to obtain the support provided for him in his father’s will. To this the respondents object, claiming that he has had opportunity to obtain it by the award of the selectmen. We think this objection can not be sustained, for several satisfactory reasons. In the first place, by the terms of the will the devisees under the will were to pay such sum as might be necessary for the support of the petitioner. If he and they could not agree, the selectmen of Windham might fix the amount. The obligation was on them to furnish the support at all events. They could in a certain contingency have the amount ascertained by the selectmen and then tender that sum. But this they have not done. It is no answer to this to say that lie- declined such an adjustment. If they had the right to have the action of the selectmen, on giving him proper notice they could have proceeded in the same manner as if he had given his assent. In the next place, it does not appear that he had an opportunity to meet all the parties in interest before the selectmen. The will speaks only of the devisees. If it is assumed that the owners of the property succeeded to their rights, the petitioner had the right to enter on all or any part of the land devised. But no application was made to the selectmen except by the owners of particular portions of the land, to which the devisees had attempted without the consent of the petitioner to limit the lien. It would seem to be no more than just, that if the owners of the rest of the land were to be bound by the award, they should have an opportunity to be heard, since he could not, in case of his failure to receive his support, be deprived in this way of his right to enter on any portion of the devised premises. But the principal question which has been discussed in this part of the case is, whether he was bound to abide by the action of the board of selectmen as it was then constituted. We think he was not. Judge Swift had not specified any individuals by name, as those by whom he wished the amount — 237 — of support to be ascertained. He doubtless supposed that any board of selectmen, elected by the town to take charge of its pecuniary interests, would be competent to make a reasonable estimate, and would be indifferent between the parties. But he undoubtedly did not anticipate a state of things in which they would have a personal interest in the question. We can not suppose that he would leave the interests of a son, for whom‘he made this special provision, for the very reason that he was not physically equal to his fellow men, to the determination of men who would not be qualified to sit as judges or jurors in any case, of however small importance, involving a question between him and the owners of the land. We think it stands upon the same ground as if no selectmen had been appointed, or as if for some other reason it had become impossible to have the estimate made in the manner provided for in the will. In such cases it has been the uniform practice of courts of chancery to entertain jurisdiction, to accomplish that which has failed without the fault of the parties, and where full justice will be done by supplying the deficiency. It has been strongly urged in the next place, that the petitioner has adequate remedy at law, and therefore this petition ought to be dismissed. At first sight this point presents a graver question than the other. The will provides that if either of the devisees, naming them, “ shall fail and neglect to pay their part and proportion of such necessary support, or such sum as said selectmen shall determine,” the petitioner shall have the right “ to enter upon the land of such of my children neglecting, as shall be set off to them as part of my estate, and to hold and possess the same till the sum due for his necessary support shall be paid.” This right to enter and obtain his support in that way, it is insisted is an adequate remedy. We think it is not. It has been repeatedly held by this court, following a series of decisions in courts of chancery elsewhere, that to oust such a court of jurisdiction, there must not only be a remedy at law, but an obvious, adequate and complete remedy. Chipman v. City of Hartford, 21 Conn., 488; Middletown Bank v. Russ, 3 id., — 238 — 135; New London Bank v. Lee, 11 id., 112; Weymouth v. Boyer, 1 Ves. Jr.; 416. The petitioner was entitled to his money, and not merely to the occupation of land, requiring his labor and care. Why can a mortgagee bring a petition to foreclose ? He has the right to enter on the mortgaged premises, and occupy them till he gets his pay. His remedy at law is more obvious and adequate than that of the petitioner. But he is held to be entitled to the aid of a court of chancery, because he is entitled to have his debt paid, or have an indefeasible title to the mortgaged premises. The mortgage is given, not as an eqivalent for the money, but merely to secure the fulfillment of the obligation entered into by the mortgagor. The analogy between such a case and the present one is striking. But the petitioner has still stronger claims than are usually presented by a mortgagee. In the case of a mortgage, the amount to which the mortgagee is entitled is generally fixed by the parties. But in the present case, since the will took effect, a large number of individuals, without any action on the part of the petitioner, have become interested in the amount to which he is entitled. He on the other hand has had greater difficulties interposed to his entry upon and enjoyment of the property. The will evidently proceeds on the ground that the devisees were to retain the possession of the property. If any one of them failed to pay, the petitioner could enter on his portion, and one entry would be enough for the whole portion. But the share of this devisee may now be divided among and occupied by half a dozen individuals. To ascertain how much the land of any one of them is to be charged with, it is necessary to know how much the share of each devisee would be, and that would depend on the amount of the whole support. The owners of the land have equitable rights between themselves, which would ultimately require the interposition of a court of equity, and an objection to this petition does not come from them with a very good grace. The petitioner, in order to enjoy his full rights at law, would be obliged to bring a large number of actions of ejectment, rendering his remedy by that mode not only very doubtful — 239 — and expensive, but extremely vexatious to the respondents. Such a state of things, we think, calls especially for the aid of a court of chancery. We do not hold that the necessity of a party to bring, or the liability of a party to be made defendant in, a multitude of suits, though all depending on a single question of law or fact, gives any claim to equitable interference. The true rule on that subject is clearly stated by Seymour, J., in the case of Dodd v. City of Hartford, 25 Conn., 238. But in the present case, owing to unforeseen circumstances, a large number of persons have a common interest in having the amount of support settled. The decision of this question in a proceeding against one, will not bind the rest. If suits are brought against each, the amount which any one ought to pay, in justice and equity would depend on what the others would be bound to pay. In the case of Beach v. Hotchkiss, 2 Conn., 425, where the defendant admitted that he had money which belonged to himself and two other persons, but where the amount was not agreed upon, the court refused to entertain an action at law in favor of one of the other parties, upon the ground that a proceeding in chancery was the only mode in which such a question could with propriety be settled, where all the parties in interest could be heard and all would be bound by the decree. So in the state of New York, in what is called “ the omnibus bill,” ( The New York & New Haven R. R. Co. v. Schuyler and others, 17 N. York, 592,) where the New York and New Haven Railroad Company brought a petition to a court of chancery, making parties all who held genuine stock and all who held stock which was claimed by the company to be spurious, the Court of Appeals sustained the jurisdiction of a court of chancery, and also overruled an objection to the multifariousness of the petition, on the ground that all the real and pretended stockholders had a common interest in having the question, as to how much stock should be pronounced good as against the company, decided; and that in a suit between any one stockholder and the company, turning upon this question, all the others would have an interest in the decision, and yet could have no opportunity to be heard and would not be bound. Comstock, J., remarks, — 240 — “ The number of parties and the multiplicity of actual or threatened suits will sometimes justify a resort to a court of equity when the subject is not at all of an equitable character and there is no other element of equity jurisdiction. But in such cases there must be such a unity of interest on one side or the other as to bring the litigation within the ordinary rules of equity pleading.” We have no occasion to bring the present case within this rule of equity jurisdiction, as we have seen that it can be supported by plain equitable principles. There is manifest error in the judgment of the superior court dismissing the bill, and the judgment is reversed. In this opinion the other judges-concurred.