Frisby v. Parkhurst

Grason, j., delivered the opinion of the court : This case has arisen out of the conflicting claims of the creditors of Elizabeth Frisby and John J. Frisby, respectively, to the proceeds of the sales of the property mentioned in the proceedings in the cause, and this is the second time this case has been before this court upon appeal. The first appeal was from an order of the court below, continuing the injunction till the final hearing. The order was affirmed by this court, and the cause remanded for further proceedings. A supplemental or amended answer was filed, further evidence was taken and, upon final hearing, a decree was passed decreeing, among other things, that the property, in the proceedings mentioned, was the property of Elizabeth Frisby, and, as such, was held to the payment of the debts due to the complainant and others, her creditors, at the time of her death.

From this decree the defendants appealed. It has been urged that the decision upon the former appeal has settled the questions which the present appeal presents for the consideration of the court, and is conclusive upon the parties and the court. It is perfectly clear that, if the same questions are presented upon this appeal as upon the former, and upon the same state of facts, the former decision must stand as the law of this case and the parties and this court must be bound by it. The *question presented by the record, upon that appeal, was whether Mrs. Frisby had made an election to take the property in question under the will of Mrs. Edwards or that of her father Mr. Edwards, and though the question whether or not there was an agreement between Mrs. Frisby and Mrs. Edwards, was not directly presented by the pleadings, it came up incidentally, and its existence and binding force were forcibly urged by the counsel for the appellees.

The court decided that no election had been made, and that there was no sufficient proof of an agreement between Mrs. Frisby and Mrs. Edwards, and the order continuing the injunction till final hearing was affirmed, and the case went back for further proceedings. The evidence of such an agreement, as contained in the record of the former appeal, was, owing to the language used by the witness, uncertain, ambiguous and liable to misconstruction. Is there any uncertainty, ambiguity or insufficiency in the evidence, as presented ⁶⁷ by the record in this case ? Is the state of the facts the same in this, as in the former appeal ?

We think not. Mr. Ricaud was again examined and his attention called to his former evidence, and he has clearly, distinctly and unequivocally sworn that there was' an agreement between Mrs. Edwards and Mrs. Frisby, by which the former who was possessed of a large real and personal estate in her own right, as well as of a life estate in certain property devised to her by 'her husband, with a reversion to Mrs. Frisby in fee, was permitted to devise to John J. • Frisby, “ Oxford and Mount Pleasant,” and “ Lot No. 17,” (the property so devised by her husband,) in consideration that she (Mrs. Edwards) would devise to her daughter, Mrs. Frisby, a life estate in the whole property, including as well the property which Mrs. Edwards held in her own right, as' the property so devised to her for life, by (her late husband, with the right to Mrs. Frisby to give the first named property to her children, other than John J. Frisby, in such shares and proportions, and for such estate or estates as she by her last will and testament might determine. Mr. Ricaud *further proves that both of the above named ladies, and be thinks all the other members of the .family were present, when he drew Mrs. Edwards’ will ; that he received instructions from both of the said ladies — that it was drawn and executed in pursuance of the said agreement, and that both before and after its execution, Mrs. Frisby stated to Mrs. Edwards that she would' stand to and carry out the provisions of itbe said will. The will having been drawn and executed in pursuance of the agreement, shows clearly and distinctly what the agreement was.

The state of facts, thus presented, is very different from the proof upon the former appeal, and it is admitted by the counsel for the appellees that the evidence must be the same to make the decision upon the former appeal binding upon this. This view of the case is also sanctioned by State v. Reigart, 1 Gill, 27 . The facts of