Young v. Young.

McCord abandoned all hope of his doing so, and took further advice of Mr. Gummere, and looked about for somebody else to do it, and finally employed Mr. Schenck, who filed a bill as soon as he reasonably could, under the circumstances, after his retainer.

I conclude, therefore, that the facts as alleged in the amendment are substantially proven, and that the laches of the complainants has been sufficiently excused; provided, of course, that the defendants have not in the meantime altered their position irretrievably and have lost no serious advantage by the death of witnesses.

Now, notwithstanding this proof and what I must accept as the decision of the chancellor, that the allegations of the amendment were sufficient to excuse the laches, a spirited and forcible argument was addressed to me, which, in effect, attacked the decision of the chancellor and denied the sufficiency of the facts to excuse the laches. This argument, however, has not created a doubt in my mind as to the correctness of the chancellor's decision.

The complainants never abandoned the idea of recovering the farm, and they never rested in their efforts in that direction. The sickness and death of Messrs. Sitgreaves, Vanatta and Dumont caused a delay for which they were not responsible. After their death they went to Mr. Gummere, and under his advice the abortive action at law was brought, which occupied about three years; and then, again, came his advice as to a suit in chancery, and they at once acted upon it by employing counsel to bring it. They seem to have been prompt to seek counsel, and equally prompt to act upon counsel's advice. The case was a difficult one, the facts not easily collated and presented to counsel; the advice they received was not always the same, but whatever it was they acted promptly upon it; they visited their counsel frequently and furnished them with written statements of the evidence, and seem to have been urging on the suits as fast as they could. I omitted in the proper place to say that at one time they placed their case in the hands of Mr. Buchanan, of Trenton, who held it for some time and then declined to prosecute it. They

Young v. Young.

are quite free of the charge of waiting to see whether the enforcement of the contract would or would not be profitable to them before bringing their suit, and it is against that sort of delay that the wholesome rule of promptness is principally directed, as was shown by Chancellor Zabriskie in Merritt v. Brown, 4 C. E. Gr. 286, 293. They were advised by Mr. Voorhees, while he had the matter in charge, that they had twenty years in which to bring their suit, and need not hurry. That advice, though probably erroneous as applied to the particular facts of this case, was, as I suppose, founded on the notion that Mrs. McCord's position was that of a person who had paid full consideration for her purchase, so that the title was vested in equity, and had made valuable improvements upon the strength of it, and that the person in possession under the legal title was, in equity, a mere trespasser and without merit, and not entitled to invoke the rule of promptness in coming to the court which prevails in the ordinary suit for specific performance. However, the complainants did not act upon that advice, but urged their suit to be brought without delay.

There was no allegation or proof that any considerable improvements had been put upon the farm by the defendants since the death of Henry Young, and no counter equity arises in favor of the defendants on that score. The matter of the death of witnesses I will refer to further on.

My conclusion upon the question of laches is that, if it be established by the proofs that Henry Young did encourage his son Jacob to make improvements upon this farm by a promise to him that he would give it to him at his death, as a proper share of his estate, and Jacob did make substantial and considerable improvements on the strength of it, then the equity of his heir-at-law to have the benefit of that promise has not been lost by the lapse of time, and that the delay in bringing the suit is accounted for by the circumstances before mentioned.

II. The next question is whether the promise was made, in effect, as alleged by the bill.

[Here follows a review of the evidence.]

Young v. Young.

I arrive at the conclusion that the promise was made substantially as alleged.

The consideration required by the law is found in the actual expenditure by the son of moneys on the strength of the father's promise, and the detriment which the son will suffer if the promise is not performed.

III. The next question is whether the improvements were made, and to such an extent and of such a character as would render it inequitable for the promisor to recede from his promise. [Here follows a statement of the evidence.]

I conclude, then, that Jacob did make additions and improvements on this property, under the promise of his father, to a considerable extent-probably not less than $1,500-without including either the vertical addition to the house or the new barn.

IV. The next question is whether any conduct on the part of the complainants, or either of them, in respect to any of the matters set up in defence, has the effect to bar the complainants' rights.

The action of Mrs. Huldah B. Young in putting in the sworn claim, as administratrix, for all these improvements, against the estate of Henry; the bringing suit thereon; the omission of this farm from the list of the lands of which Jacob died seized, on the application to the orphans court for leave to sell lands to pay debts, relied upon by the defendants-cannot operate as a bar to the equity of Mrs. McCord, who is the heir-at-law, and I doubt if they can at all affect Mrs. Young's right. It seems to me that the fact that they were defeated in their attempt to recover compensation for the improvements put upon this farm, not on the merits, but by the interposition of the statute of limitations, strengthens rather than weakens their equitable standing in their present attempt. It shows that they have no remedy at law and that the expense of the improvements put upon the farm by Jacob Young must be forever lost to his heir-at-law, unless a remedy in this court is found for her; and the fact that they were so defeated is due entirely to the plea interposed by the defendants therein, as executors of their father's estate. It

Young v. Young.

was in their power to permit the question of the amount of the value of these improvements to be ascertained by judicial proceeding and then to pay it. Instead of that, they set up the technical defence of the statute of limitations, which enabled them, at law, to retain the premises without paying for the improvements.

With regard to the rights of the creditors of Jacob Young, it is certain that the complainants sought, by defending the title in the action of ejectment, to have the property established as the property of Jacob Young, and if they had succeeded, of course his creditors would have taken it. The creditors had, presumably, notice of that suit, and were at liberty to watch it and to learn all the facts which were developed thereby, and they were at liberty themselves to institute proceedings, as they might be advised, to have that farm declared to be the property of Jacob Young. No act done or omitted on the part of Dorothea McCord has obstructed them in their rights in that behalf. Besides, it does not concern the defendants whether the creditors' rights have been ignored or not.

The demand and receipt by Dorothea of her legacy for $3,000was, however, an explicit determination by her to take under the will of her grandfather, and, if she did that, she could not, at the same time, claim this farm, because thereby she disturbed the provisions of the will; and the serious question is whether that determination by her is to be treated as a final election by her between her claim to the farm, under her father's equitable title and her claim to the legacy under her grandfather's will, so that she shall not be permitted to retract it, return the money, with interest, and take the farm instead.

The authorities seem to concur in holding that, in order to make the enforcement of one demand, which is inconsistent with another, a final and binding election to take that and not the other, the party must either be shown to have acted advisedly, with a proper knowledge of all the circumstances, and with a consciousness of the effect of the act relied upon, or the party adversely interested must have so changed his position in reli

Young v. Young.

ance upon such action that it would be inequitable to permit the party who has the choice to recede from his former action.

Chancellor Vroom, in English v. English, 2 Gr. Ch. 509, uses this language: "What acts of acceptance or acquiescence are sufficient to constitute an election cannot be designated with sufficient precision to justify a general rule. Each case, as it occurs, must be governed by its own peculiar circumstances. The general questions are, whether the parties acting or acquiescing were cognizant of their rights; whether they intended to make an election; whether they can restore the individuals affected by their claim to the same situation as if the acts had never been performed, or whether these inquiries are precluded by lapse of time."

In the same direction is what was said by Chancellor Runyon in Macknett v. Macknett, 2 Stew. Eq. 57, 58. He there cites with approbation the case of Wake v. Wake, 1 Ves., Jr., 335, which he states as follows: "A widow, after having received a legacy, and for three years an annuity, between which legacy and annuity and her dower she was bound to elect, filed her bill for her dower. It was held by Buller, J., sitting for the lord chancellor, that the receipt of the annuity for three years, and the legacy, did not prevent her right of election, she being presumed not to have acted with full knowledge, which would bind her. The point is,' said he, whether she had full knowledge of the circumstances of the testator and of her own rights. she had acted with full knowledge she should not afterwards deny it, but after three years only I cannot say she is not entitled.''

If

In Anderson's Appeal, 36 Pa. St. 476, a widow had accepted several payments on account of interest on a fund left to her by her husband's will, and was allowed, notwithstanding that, to recede and claim her dower upon a return of the money she had received. Judge Reed says (at p. 496): "An election by matter in pais can only be determined by plain and unequivocal acts, under a full knowledge of all the circumstances and of the party's rights."

And see 2 Jarm. Wills (R. & T. ed.) 40, and note 19 of Mr.