1. The court adheres to its ruling in
Bowen v. Chase,
94 U. S. 812,
touching the title to certain lands whereof Stephen Jumel was
sometime the owner, which were conveyed upon certain trusts to the
separate use of Eliza Brown Jumel, his wife, with a general power
of appointment during her lifetime, and of the several appointments
made thereunder to Mary Jumel Bownes by said Eliza, who survived
her husband, which ruling declares that the title to the property
situate in New York City passed on her death to said Mary in fee,
except a tract of sixty-five acres on Harlem Heights, in regard to
which no opinion was expressed.
2. Bowen, claiming to be the heir-at-law of said Eliza, brought
ejectment for all the lands against the heirs-at-law of said Mary
who were in possession of them, but offered no evidence that said
Stephen had transferred the title of said tract, or that said Eliza
had ever acquired any interest therein except her estate in dower.
The conveyances made by said Eliza to defeat her appointments in
favor of said Mary and restore the lands to their original trusts
were put in evidence. They recite that the said tract had been
originally conveyed upon the same trusts as the remaining lands.
The defendants then offered to prove declarations of said Stephen,
while residing on and having the seisin and control of said tract,
that his wife had sold all the property out of his hands, under a
power of attorney given not to dispossess him, but to do business
for him; that they had compromised a settlement by which the estate
owed him a support for life, and at his death and that of his wife
it was to go to their daughter, and he was satisfied.
Held
that such declarations being in harmony with the deeds that he had
executed or authorized, and against his interest in reference to
the property not conveyed, or not shown to have been conveyed, were
admissible.
3. After the evidence was closed, counsel on both sides agreed
that as to the title of said Mary there was no conflict of
testimony, and that it was a matter for the court to determine. The
court thereupon directed the jury to find specially that said
Eliza, "at the time of her death, had no estate or interest in the
lands claimed which was descendible to her heirs."
Held
that if the parties meant that the court should determine whether,
as a matter of fact, she had or had not such estate or interest,
the direction was in the nature of a finding made at heir request,
which this Court cannot review; that if the title was to be
determined as a matter of law, they must have intended that the
declarations of said Stephen were to be received as true, and if
so, the direction was proper.
The facts are stated in the opinion of the Court.
Page 98 U. S. 255
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This case was before us in an equity suit at the October Term,
1876, upon the same general state of facts which is embodied in the
present record.
Bowen v. Chase, 94 U. S.
812. The bill in that case was filed after the
commencement of this, for the purpose of enjoining this and all
other suits brought by the plaintiff in error for the property
involved in the controversy. The circuit court had decreed a
perpetual injunction in reference to the whole property. We
sustained that decree as to all the property in New York City
except a tract of sixty-five acres on Harlem Heights, as to which
it did not seem to us that an injunction was proper. Consequently
the present suit, which was on our docket at the time, on writ of
error, was continued for argument.
The case was tried by jury in the circuit court, in October
Term, 1872, and certain errors are alleged as to the admission and
rejection of testimony, and as to the charge of the court. In order
to understand their bearing, it is necessary to take a general view
of the facts of the case as they are spread upon the record in the
bill of exceptions.
The action is ejectment brought to recover possession of various
parcels of real estate in the City of New York,
viz.,
first, a certain tract of ninety-four acres, situated on Harlem
Heights, divided into lots numbered 6, 7, 9, 10, 11, 12, 13, 14,
and 15, according to a map of the estate of Leonard Parkinson, made
by Charles Loss in 1810; second, a lot of thirty-two acres at
Harlem Heights, known as the homestead, being part of lot numbered
8 on said map; third, two houses and lots on Seventh Avenue and
41st Street, the claim to which was abandoned by the plaintiff on
the trial; and, fourth, two lots at the corner of Broadway and
Liberty Streets.
This property was all in possession of one Eliza B. Jumel, known
as Madame Jumel, widow of Stephen Jumel, at the time of her decease
in July, 1865, and has ever since been in the possession of the
defendants, Nelson Chase, and his children
Page 98 U. S. 256
by his wife Mary Jumel Bownes (or, as she was called, Mary
Jumel), an adopted daughter of Mr. and Madame Jumel, who died in
1843. Their claim to the property is based on a family settlement
made in 1828 whereby a life estate was secured to Madame Jumel,
with a remainder to Stephen Jumel for life, remainder in fee to the
said Mary Jumel Bownes, their adopted daughter. In 1867, the
present suit was brought for the recovery of the property by George
W. Bowen, the plaintiff in error, who claims to be an illegitimate
son of Madame Jumel, born in Providence in 1794, and as such her
heir-at-law under a statute of the State of New York passed in
1855, by which illegitimate children, in default of lawful issue,
are made capable of inheriting from their mother. He contends that
Madame Jumel died seised of a descendible estate in the property,
and that he, as lawful heir, is entitled to the possession of it.
The defendants on the trial contested both allegations,
viz., that the plaintiff was the son of Madame Jumel, and
that she died seised of a descendible estate. Other issues were
raised by the defense which it is unnecessary now to notice.
Much of the evidence taken at the trial related to the question
of the plaintiff's alleged relationship to Madame Jumel, and most
of the errors assigned relate to rulings on the admission and
rejection of testimony on that subject. As this branch of the case
becomes immaterial if it be shown (as found by the jury) that
Madame Jumel had no descendible estate in the property, we will
consider the latter question first.
The marriage of Stephen and Madame Jumel took place in New York
in April, 1804; and the adoption of Mary Jumel Bownes, who was a
niece of Madame Jumel, took place soon after, when the said Mary
was a mere child. Mr. Jumel was a French wine merchant of
considerable wealth, residing in New York, and after his marriage
with Madame Jumel they lived in much style for that day in the
lower part of the city.
It is conceded that the property in question all belonged to
Stephen Jumel. It is so stated in the briefs of both parties, and
the conveyances by which Stephen Jumel acquired the different
parcels were exhibited in proof on the trial. The tract called the
homestead was occupied as a country seat.
Page 98 U. S. 257
The tract of sixty-five acres, which is the only one now in
question, was an out-lot in the vicinity, partly covered with wood,
and was part of the ninety-four acre tract at Harlem Heights first
described in the complaint. This tract of sixty-five acres, with
another of thirty-nine acres, was conveyed to Stephen Jumel by one
Leonard B. Parkinson, by deed bearing date March 9, 1810, a
certified copy of which was put in evidence without objection.
It is not pretended that Stephen Jumel parted with the title to
any of the property until about the year 1825 or 1827. At or about
the latter period, arrangements were made by him, or under his
authority, out of which arises the controversy respecting the
extent of Madame Jumel's interest, and which formed the subject of
examination, and the ground of decision in the equity suit. The
defendants insist that they are equally decisive in this.
It appears from the evidence that in 1815 the family, consisting
of Mr. Jumel and his wife and their adopted daughter, went to
France. Madame Jumel returned in the spring of 1817, but her
husband and adopted daughter remained for some period longer, the
latter being placed at school. The daughter returned after three or
four years, and in 1821 she and Madame Jumel again went to France,
and remained there for several years. The documents in the case
show that Madame Jumel was still in Paris as late as the spring of
1826, residing with her husband in the Place Vendome. She returned
to this country in that or the following year. When in this
country, she usually resided at the family mansion or homestead on
Harlem Heights. Stephen Jumel returned in the summer of 1828, and
resided with his family at the mansion house until his death on the
22d of May, 1832.
The history of the property in question during this period, so
far as the documentary evidence shows, is substantially as
follows:
In January, 1815, before the family left for France, Mr. Jumel
conveyed the homestead on Harlem Heights, then consisting of
thirty-six acres, to a trustee for the life of Madame Jumel, to
hold the same in trust for himself during his own life, and after
his death for the benefit of Madame Jumel
Page 98 U. S. 258
during her life, and then to convey the property back to Mr.
Jumel and his heirs. Nothing further seems to have been done in
this direction until Madame Jumel's last visit to France. Whilst
she was there, a second settlement was made of the homestead by a
deed dated in January, 1825, whereby it was conveyed to new
trustees for the separate use and benefit of Madame Jumel in fee.
About a year later, in January, 1826, Mr. Jumel conveyed the
Liberty Street property to a trustee for the benefit of his wife
during her life, subject to a mortgage of $6,000. On the 15th of
May, 1826, probably about the time of her leaving for this country,
he gave her a general power of attorney under and by virtue of
which several conveyances were subsequently made in his name. By
this power he made his wife his attorney to transact and manage his
affairs at New York or at any place in the State of New York, and
in his name and for his use and behalf to sell and convey all or
any part of his real estate, and to receive the moneys arising from
such sales, and give acquittances for the same.
By virtue of this power, various conveyances were made by Madame
Jumel in 1827, by which all the property before referred to, except
the sixty-five acres now in question, was conveyed in fee simple
absolute to Mary Jumel Bownes, the adopted daughter of Mr. and
Madame Jumel. These conveyances purport to be sales for valuable
consideration expressed therein. Two of them are dated on the
thirtieth day of July, 1827, one for the twenty-nine acre lot, No.
6, part of the ninety-four acre lot, and the other for the
thirty-nine acre lot, No. 5; and a third conveyance was executed
for the Liberty Street property on the 24th of November, 1827. A
fourth conveyance, of the homestead, thirty-six acres, was made on
the 1st of January, 1828. Where the property had been conveyed to
trustees, they joined in the conveyances.
After the first three conveyances had been made to her, Mary
Jumel Bownes, in December, 1827, conveyed the property therein
named to one Michael Werckmeister in trust, and in May, 1828, she
conveyed to him the homestead, also in trust. The trust declared in
each case was to the effect, first, that the trustee should, during
the lifetime of Madame Jumel,
Page 98 U. S. 259
receive the rents and profits and pay them over to her, or at
her option permit her to use, occupy, and enjoy the property and
receive the rents and profits thereof; secondly, that he should
lease, sell, convey, and dispose of the property as Madame Jumel
should by writing, executed in the presence of two credible
witnesses, order, direct, limit, or appoint, and in case of an
absolute sale, to pay to her the purchase money, or invest it as
she should order and direct; thirdly, upon her decease, to convey
to her heirs-at-law such of the property as should not have been
previously conveyed, and with respect to which no appointment
should have been made by Madame Jumel in her lifetime.
The above conveyances to Mary Jumel Bownes, and the deeds of
trust made by her to Werckmeister, were all executed before Mr.
Jumel's return to this country. On the 21st of November, 1828,
after his return, Madame Jumel executed the power of appointment
given to her in the trust deeds. By this instrument, after reciting
the trusts, she directed as follows:
"Now I, the said Eliza Brown Jumel, do hereby order, direct,
limit, and appoint that immediately after my decease, the said
Michael Werckmeister, or his heirs, convey all and singular the
said above-described premises to such person or persons and to such
uses and purposes as I, the said Eliza Brown Jumel, shall by my
last will and testament, under my hand and executed in the presence
of two or more witnesses, designate and appoint, and for want
thereof, then that he convey the same to my husband, Stephen Jumel,
in case he be living, for and during his natural life, subject to
an annuity to be charged thereon, during his said natural life, of
$600, payable to Mary Jumel Bownes, and after the death of my said
husband, or in case he shall not survive me, then, immediately
after my own death, to her, the said Mary Jumel Bownes, and her
heirs in fee."
Thus the matter stood until after Mr. Jumel's death, and after
the marriage of Madame Jumel to Aaron Burr, when in 1834, and again
in 1842, she made ineffectual attempts (in the equity case we held
them to be ineffectual) to defeat the appointment she had made in
favor of Mary Jumel Bownes (then the wife of Mr. Chase), and to
settle the property absolutely upon herself.
Page 98 U. S. 260
The effect of the different conveyances, including the
appointment by Madame Jumel, as determined by us in the equity
case, and as we still hold, was to create an estate to the use of
Madame Jumel for life, with a power of appointment by deed or will,
and with remainder on failure of such appointment to the use of
Stephen Jumel for life, with a final remainder to Mary Jumel Bownes
in fee. We further held that whilst, by the terms and legal effect
of this settlement, Madame Jumel had power to revoke her
appointment in favor of Mary Jumel Bownes for the purpose of making
a
bona fide sale of the property, she could not revoke it
for the purpose of substituting another voluntary appointment.
It is evident that the arrangement as finally settled had the
approbation of Mr. Jumel. The deeds executed in 1827 may have
caused him some anxiety, and may have hastened his return to New
York, but the appointment made by Mrs. Jumel after his return
evidently had his sanction and approbation. He seems from the
testimony to have had a sincere attachment to his adopted daughter.
The terms on which the family lived during the latter years of his
life, as well as after that time, are shown in the testimony of the
defendant, Nelson Chase. He says:
"I knew Stephen Jumel; was living at his house, and was one of
his family when he died. He left no child or relation, to my
knowledge, in this country. He was a Frenchman. I married one of
his family. I married Mary Jumel Bownes, who was a niece of
Madame's; was married on the 15th of January, 1832, at Judge
Crippen's residence, in Worcester, Otsego County. My first
knowledge of Madame Jumel was while I was studying law with Judge
Crippen, in July, 1831. Madame came to Worcester, where I was, to
see Judge Crippen, bringing with her a young lady, whom she
introduced as her niece. My acquaintance with the young lady
continued some time, and until Madame Jumel said to me, I perceive
there is a friendship between you and my niece Miss Mary; she
added, if I and Mary could agree, she would be happy to have me for
a son-in-law; that if we got married she would expect us to come
and live with herself and her husband on their place; she said that
Mary was her adopted daughter, and was to be her heir. Mr. Jumel
died May 22,
Page 98 U. S. 261
1832. This lady whom I married died May 5, 1843. Two children of
the marriage are living: one daughter, Mrs. Eliza Jumel Perry, was
born at the mansion March 25, 1836; one son, William Inglis Chase,
was born Aug. 17, 1840. I and my family, and my daughter and her
family, and my son and his family, all live in the Jumel mansion,
and we have all lived there ever since Madame Jumel's death. My
wife returned to the mansion in February next after our marriage,
and I followed in the next month, and from that time until the
death of Mr. and Madame Jumel I and mine substantially lived with
them as one family."
We have been thus explicit in setting forth the history of the
Jumel family and of the property in dispute as exhibited by the
evidence in the case because of its bearing upon certain evidence
about to be noticed, and upon the final disposition of the cause by
the court and jury.
On the trial, the defendants contended that although no deeds or
conveyances for that purpose could be found, yet that in fact the
sixty-five acre tract had passed through the same course of
settlement as the rest of the property had done. To show this, they
offered to prove by one John Caryl, who had lived in service with
the family for several years, a certain statement and declaration
made by Stephen Jumel to the witness in the fall or winter of 1828,
whilst Madame Jumel and her daughter were on a visit to the South.
They put to the witness this question:
"At that time, did Mr. Jumel make any statement to you as to the
ownership of the property whilst he was thus residing on the
premises and you were there working on them under him?"
The question was objected to by the plaintiff's counsel, but the
objection was overruled and an exception taken.
The witness testified as follows:
"After Madame Jumel and Mary went south, and while I was living
on the place with Mr. Jumel, he stated to me that he had given
Madame a power of attorney, not for the purpose that she should
dispossess him or disinherit him, but in order that she should do
business for him. He said that she sold all the property out of his
hands under the power of attorney, and he had nothing left he could
call his own; but he said that they
Page 98 U. S. 262
had had a compromise or settlement by which the estate owed him
a support as long as he lived, and in the end, at his decease and
Madame's, it was to go to Mary, and with that he was satisfied. In
the first place, when he said the property had been sold from under
him, I said, 'Mr. Jumel, I knew that fact. It was done in 1827,
last year.' He then made other remarks, which I have stated. On
another occasion, either Christmas Day, 1828, or New Year's, 1829,
he stated to my father in my hearing that the property was sold out
of his hands, but that Madame had made a settlement, or something
to that effect, whereby they were to enjoy the property while they
lived, and that in the end it was to go to Mary, and with that he
was satisfied."
One of the errors assigned by the plaintiff is the admission of
this testimony. As it has an important bearing upon what followed
in the disposition of the cause, it is necessary to examine the
question raised by this exception. The plaintiff contends that the
declarations of Stephen Jumel at that time were not competent
evidence in the cause: that they were not against his interest;
that he was not in possession of the property; that they were not
contemporaneous with the acts to which they refer; and, if
otherwise admissible, they could only be used as evidence against
himself, or his privies in blood or estate. But what were the clear
facts of the case as they then stood upon the evidence? The entire
property in question had originally belonged to Stephen Jumel. By
himself or by his family, his servants in charge, or his tenants,
he had the undisputed possession of the whole of it, at least down
to 1825. Their possession was his possession. They had no pretense
of possession except through or under him. The homestead had been
conveyed by him in 1815 to trustees for the benefit of himself for
life, and after his death for the benefit of his wife for life. Her
interest in it was subordinate to his. In 1825 he made another
conveyance of the homestead to trustees for the separate use of his
wife in fee. She never had any possession even of this parcel,
except through and under him by a voluntary conveyance on his part.
In 1826, he conveyed the Liberty Street property to trustees for
the separate use of his wife for life, remainder to himself and his
heirs
Page 98 U. S. 263
in fee. All the rest of the property remained in his actual or
constructive possession until the conveyances made by virtue of his
power of attorney in 1827. These conveyances were all voluntary on
his part, and whatever he may have thought or believed, he retained
the power of defeating them at any time by a sale to a
bona
fide purchaser. He returned home in 1828, and resided with his
family on the property which he had thus voluntarily subjected to
their use. One tract, the sixty-five acre lot now in question, so
far as any evidence had yet appeared in the cause, still remained
absolutely in him. It stood as it had always stood, in his
possession, seisin, and control. Surely as to this tract, if not as
to the others, he was in a position in which his declarations were
admissible. It is unnecessary to refer to authorities on this
subject. They are discussed in 1 Greenl.Evid., sec. 109, and in 2
Taylor, Evid., sec. 617. Declarations contrary to the tenor of the
deeds or documents which he had executed or authorized would not be
admissible, it is true, but declarations in entire harmony
therewith, and against his interest in reference to property not
conveyed, or not shown to have been conveyed, were clearly
admissible. The statement testified to by Caryl was of this sort,
and according to this statement, the entire property had been
settled so as to go to his adopted daughter in the end. There was
no conflict of evidence on this subject. On the contrary, the
conveyances which Madame Jumel procured to be made, after Mr.
Jumel's death, to Hamilton and Philleppon, for the purpose of
defeating her own appointment made in 1828, recited the fact that
the sixty-five acre tract, as well as the others, had been conveyed
by Mary Jumel Bownes to Werckmeister upon the same trusts as those
were. The plaintiff put these deeds in evidence, and they
corroborate Mr. Jumel's statement. The recitals in those deeds
cannot be used against the defendants, it is true; but as far as
they go, they are corroborations, on the plaintiff's part, of the
statement referred to.
We think the evidence was admissible, and that there was no
error in receiving it.
This evidence serves to explain what took place at the close of
the trial in giving the case to the jury.
Page 98 U. S. 264
After the evidence was closed, the bill of exceptions proceeds
to state what occurred, as follows:
"The plaintiff made no claim for the lands on Seventh Avenue
mentioned in the declaration. As to all the other lands mentioned
in the declaration, the defendant's counsel insisted that, on the
undisputed facts in evidence, the defendant as a matter of law was
entitled to a verdict even if the jury should believe that the
plaintiff was the heir-at-law of Eliza B. Jumel. The counsel on
both sides agreed that on this branch of the defense there was no
conflict of evidence, and that it was a matter for the court to
determine."
The presiding judge then proceeded to charge the said jury, and
after giving them directions as to the other issues in the cause,
on the subject in question he directed them to find specially "that
Eliza B. Jumel, at the time of her death, had no estate or interest
in the lands claimed, which was descendible to her heirs." To this
charge the plaintiff excepted, and it is assigned for error
here.
Now if we lay out of view the declarations of Mr. Jumel above
referred to, there was not a particle of evidence in the case to
show, as against the defendants, that the sixty-five acre lot had
ever been conveyed by Mr. Jumel, or that Madame Jumel had ever
acquired any interest therein, except her estate in dower as his
widow. There is no evidence of any adverse possession by her under
any other claim of title than that which she asserted to the rest
of the property. If, therefore, the declarations of Mr. Jumel are
to be laid out of view entirely, the charge of the judge was
clearly right.
The evidence, however, was admitted, and went to the court and
the jury together with the other evidence in the case respecting
Madame Jumel's title to the land in question, and both parties
agreed that on this branch of the defense there was no conflict of
evidence and that it was a matter for the court to determine. Now
they either meant to leave it to the judge, on the whole evidence
in the case, including the declarations of Mr. Jumel as well as the
conveyances which were produced, to determine the matter as a
question of fact, whether Madame Jumel, at the time of her death,
had or had not any descendible interest in the property, or they
meant to leave it to him as a question of law, whether upon the
whole evidence as it
Page 98 U. S. 265
stood (in which they admitted there was no conflict) she had any
such descendible interest. If they meant the former, the judge did
determine the question in the only manner in which, by the New York
practice, he could do so -- by directing the jury to find that she
had not such interest. In this view of the case, the decision of
the judge, though given by way of a peremptory direction to the
jury, was in the nature of a finding of fact made at the request of
the parties, which we cannot review, any more than we could review
the finding of a jury on a question of fact fairly submitted to
them.
But if the parties meant to leave the question to the
determination of the judge as matter of law, assuming that the
declarations of Mr. Jumel were to be received as true (which must
have been what they intended when they agreed that there was no
conflict in the evidence on that branch of the defense), then we
are still of opinion that the decision was right. If it was true,
as stated by Jumel, that, under the power of attorney made by him,
his wife had sold all the property, but that they had had a
compromise or settlement, by which the estate owed him a support as
long as he lived, and in the end, at his decease and Madame's, it
was to go to Mary -- if that statement was true, how could the
judge have decided otherwise than he did? That language in a will,
or any other document, could never be construed to give Madame
Jumel a descendible interest. It is in exact conformity with the
known facts of the case as evinced by the documents themselves, so
far as the documents go.
But there is another aspect of the case as to what the parties
meant in their conference with the court, which leads to the same
conclusion. It is to be remembered that at the trial of the cause,
the entire property was in controversy, and as to most of the
parcels there was no question as to the deeds and conveyances which
had passed. The parties undoubtedly desired the opinion of the
court upon the legal effect of these conveyances, and it is quite
apparent (though not expressly so stated) that when both sides made
the concession or agreement referred to, and requested the court to
determine the question, they assumed, or intended to assume, that
all the property had been limited upon the like trusts and
appointment. If this was so, the decision called for from the
judge
Page 98 U. S. 266
was really as to the effect of the trust deed executed to
Werckmeister, and of the several appointments made thereunder by
Madame Jumel. As in this view of the matter the decision was in
conformity with the views of this Court in the former case, we hold
it to be correct.
In every aspect, therefore, in which this branch of the case may
be viewed, we think that no error was committed by the court
below.
The disposal of this question determines the cause. The other
errors assigned become entirely immaterial, if Madame Jumel had no
descendible interest in the property for the plaintiff to
inherit.
Judgment affirmed.