Page v. Whidden

59 N.H. 507

Opinion

Allen, J.

It is a general rule in equity, that all who are interested in the subject-matter of the cause should be made parties to prevent multiplicity of suits. Bell v. Woodward, 48 N. H. 437, 446; Brown v. Simons, 45 N. H. 211; Chase v. Searles, 45 N. H. 511; Eastman v. Bank, 58 N. H. 421. Nor is it any objection that separate decrees may be necessary to settle the rights of the different parties, provided they all have a common centre of interest. Abbot v. Johnson, 32 N. H. 9, 31. And if the court has jurisdiction of any substantial or essential part of the complaint, the bill may be sustained. Winnipissiogee Lake Co. v. Worster, 29 N. H. 433, 445.

The claim of J. G. Berry’s estate against the estate of Whidden was one for equitable jurisdiction (G. L., c. 198, s. 22), and the plaintiff Page, administrator, and the defendant Whidden, executrix, representatives respectively of those estates, were properly parties to the bill. The determination of the administrator’s claim involves the question of the right of the other plaintiffs to one half of the land claimed, and they are properly joined as plaintiffs with Page. The widow and the heirs of Whidden, whose claims and interests are adverse both to those of Page and the heirs of Berry, are properly joined with Whidden’s executrix as defendants. The settlement of the right to the real estate includes the settlement of the claim for compensation. The connection of the claims of the different parties, and the convenience of adjusting them in one suit, render it equitable and just that the claims and parties be not sev ered in litigation; and peculiarly so when, as in this case, the facts do not make it appear that any injustice can be done by a joinder of all the parties. Eastman v. Bank, supra.

As to the estate of William Berry, J. G. Berry and Whidden stood towards each other in a relation like that of mortgageor and mortgagee, with the mortgagee in possession and the mortgageor proceeding to redeem; excepting that Whidden was not to account for rents and profits of the estate while in possession. The return of J. G. Berry to Newington, with an intention to come there and live when he should have adjusted his business affairs at the West, his arrangement with Whidden to meet the conditions in the will necessary to entitle him to one half of the estate, and the payment of a large sum of money for that purpose without apparent objection by anybody at that time, were so far a performance of the conditions, that, on the payment of any balance when ascertained, Whidden’s title would be defeated and terminate, and Berry would be entitled to the possession. On the performance of the conditions, he was entitled to one half of all the residue of the estate, personal as well as real. Whidden having consumed or disposed of the personal estate, and charged himself with it in his administration account, he could not make Berry possessed of the personal estate, and equity applied the balance found due on the settlement of his account in payment of the sum required of Berry to fulfil the conditions of the will. In the same way, Whidden should account for the proceeds of land which he had actually sold and precluded Berry from receiving, and for damages received from land actually taken. One half of these sums, with the amount paid by Berry, exceeded the sum required to entitle him to the possession of one half the estate. His delay in prosecuting his claim to the estate, and his neglect to take possession, cannot bar the equitable rights of the heirs. Time was not of the essence of the devise under which the rights of the plaintiffs are asserted. No time was named within which the devisee must perform the conditions to entitle him to the property, nor was any to be inferred; and in the arrangement with Whidden no time was specified, nor could any be inferred from the circumstances, within which Berry should come into the estate. Ewins v. Gordon, 49 N. H. 444, 459. There was no such delay or negligence in asserting the right as to make its enforcement now a hardship or injustice on the defendants, who have enjoyed for many years, without the payment of interest, both the consideration and the property for which the consideration was paid, and, so far as appears, without having added anything to the value of the estate.

The amount received by Whidden being in excess of that required to be paid by Berry, his administrator has a claim against the estate of Whidden for the sum of such excess. The claim not having been presented within three years after the grant of administration on Whidden’s estate, the plaintiff’s sole remedy was in equity. G. L., e. 198, s. 22. It was not necessary to exhibit the claim to the executrix within two years. Webster v. Webster, 58 N. H. 247. The court found no culpable negligence on the part of the plaintiff or his intestate in not sooner prosecuting the claim; and negligence both in fact and degree being matter depending upon evidence, the finding is not subject to revision here. Justice required the‘allowance of the claim.

The evidence of one of the defendants that money had been paid by Whidden to Berry, and which was excluded because the plaintiff administrator did not elect to testify, was, in substance, material on the state of the accounts between the parties, and competent, and ordinarily would have been admissible. The general purpose of the statutes, permitting parties to be witnesses, was to enlarge and not contract the field of testimony, and an exception narrowing the former boundaries would have been contrary to the spirit of the enlarging statutes. Moore v. Taylor, 44 N. H. 370, 375; Clements v. Marston, 52 N. H. 31; Stewart v. Harriman, 56 N. H. 25; Day v. Day, 56 N. H. 316, 318. At common law, the general rule, both in law and in equity, excluding parties from testifying, had exceptions, and among them were cases of accounting, where the accounting party was required to furnish an account on oath and submit to an examination of the items, and cases where, from their nature, the facts were solely within the knowledge of the parties. In such eases, parties, became witnesses on leave of court granted for that purpose. 3 Gr. Ev., ss. 335, 338; Hollister v. Barkley, 11 N. H. 501, 506; Society v. Society, 14 N. H. 315, 325. The admission of a. party to testify was not a matter of right in any case, but within the discretion of the coux-t; and when the discretion was-exercised by masters in chancery in equity proceedings, the discretion was subject to revision by the chancellor. The practice of allowing parties to be examined and testify for themselves was resorted to with great caution, and never txnless under the peculiar circumstances of the case justice could not be attaixxed without it. It was permitted in no case where, from the position of the parties, an unfair advantage would be given by it to one party over the other. 3 Gr. Ev. 338. And when the fact in question occurred in the presence only of the plaintiff and a deceased partner of the defexxdant, the examinatioxx of the parties was held improper as calculated to give the plaintiff an unfair advantage. The exclusion of the defendaxxt from testifying ixi this case was a. proper exei-cise of discretion. The facts being wholly within the knowledge of the deceased and the defendant party, and the plaintiff not electing to testify, the evidence was inadmissible if the-statute exception applied (Chandler v. Davis, 47 N. H. 462), and under the common-law rule, not narrowed by the statute exception, there was no error in excluding it on the ground that its admission would give the defendant an unfair advantage.

The plaintiff heirs are entitled to a decree for the possession of one half the land, and the administrator to a decree for the payment of his claim.

Exceptions overruled.

Bingham, J., did not sit: the others concurred.