Opinion
11-13-1888
HAINES v. HAINES' EX'RS et al.
D. J. Pancoast, for complainant. M. R. Sooy, for defendant I. M. Haines. C. E. Hendrickson, for defendant A. M. Haines. C. E. Merritt, for defendant J. C. Haines.
Bill by Cor. Haines against the executors of Isaiah Haines, deceased, and others, for construction of the will and a settlement of the estate of said testator.
D. J. Pancoast, for complainant. M. R. Sooy, for defendant I. M. Haines. C. E. Hendrickson, for defendant A. M. Haines. C. E. Merritt, for defendant J. C. Haines.
BIRD, V. C. The testator died in 1883, leaving six of his children executors of his will. Their interests seem to have been, or at least they seem so to have understood it, so conflicting that they have not been able to unite in a settlement of the estate. Hence the filing of this bill, in the hope of adjusting all questions of difficulty, in one single proceeding, and also of completing the settlement of the estate. The points of difference will appear.
1. As to the construction of one of the clauses of the will, which is in these words, viz.: "I give and bequeath to my son Cor Haines the sum of four thousand dollars and twenty-three hundred dollars to be deducted out and interest from date to be deducted out of the twenty-three hundred, the balance to be paid by my executors in one year after my decease." The question is, how much did the testator intend should be deducted out of the legacy of $4,000? No help is afforded by punctuation marks. I cannot think the testator intended to take $2,300 from the $4,000, after first deducting interest from the $2,300, according to the literal import of the phrase. I reject that view. But the testator intended to deduct the $2,300, and also some interest. This, I think, cannot be controverted. The language employed shows that beyond controversy. But to say that the testator would direct the accruing interest upon a debt due to himself to be deducted out of the debt when he had directed that debt to be deducted from a legacy given to the debtor, is too absurd to admit of consideration in any case, unless it is written so that it unmistakably appears to have been the will of the testator. In this case, the reason why the sum of $2,300 was ordered to be deducted out was the fact that the legatee was indebted to his father, the testator, in that amount, on two notes and one receipt, admitted to be an evidence of money advanced by the father. One of these notes is dated February 20, 1867, and is for $1,000, payable in one year, with interest; one is dated July 20, 1870, for $700, payable in one year, but it is not said to be with interest upon the face of it; and the receipt is dated November 15, 1872, for $600, payable on demand, and no mention of interest. It is admitted that no part of these claims has ever been paid. It is also admitted that, from a legal point of view, the two notes are outlawed, whatever may be the strict legal status of the receipt, which says on its face, "Payable on demand." These sums, aggregating $2,300, it is conceded, are what the testator had in his mind when he was penning his will, with his own hand. As I have said, he intended to deduct interest as well as principal from the $4,000. It must have been interest accruing on the principal debt, which he had directed to be subtracted, and not to diminish that sum by deducting therefrom the yearly accruing interest, which at the date of the will had accumulated to about $2,300, so that at the time of the death of the testator, in 1883, the interest had exceeded the principal. But what interest did he intend to have deducted? Did he refer to the interest upon the notes and the receipt from their dates, respectively? I cannot reach that conclusion. While a great deal can be said in that direction, my mind does not yield to that view. The will says, "and interest from date to be deducted out." What date is referred to? I think the date of the will. He was then writing his will. That is the paper which he wasabout to date,—to execute. It was a single instrument. The notes and receipts were three. Had he intended that interest should be cast upon the notes from their respective dates he certainly would have used the plural, "dates," instead of the singular, "date." And how can "the date of the notes" be interpolated? What rules of construction will tolerate any such liberal use of judicial speculation? The testator has nowhere referred to the notes. In no part of his will does he advert to an anterior indebtedness of the son Cor. Taking the will as it stands, and independent of the previous transactions of the father and son, and the conclusion would be that the father intended, for some reason or other, to charge the son with $2,300 and interest from the date of the will. But when the light on the dealings between the parties is let in, the case is not so free from complications. Therefore, since I can find nothing in the will that assures me that the testator intended that interest should be calculated from the date of the notes, I do not feel justified by any rules of construction in writing those words in the will in order to reach that conclusion, especially since the word "date" may, and that, too, most reasonably, refer to the date of the will. This view enables me to dispose of the matter without any importations, which may be entirely foreign to the mind of the testator; and it allows all of the words employed by the author of the instrument to stand; and only requiring the words "twenty-three," where they are written last, to be changed to "forty," so that it will read, "and interest from date to be deducted out of the forty hundred." This construction does the least possible violence to the language of the testator, and the substitution of "forty" for "twenty-three," I think, is not outside of the rule that allows "or" to be read "and," or "and," "or."
2. As to the liability of Isaiah for rent for the farm which be occupied at the time of the testator's death, and for many years previous. It was not seriously contended but that he should pay rent; the resistance being to the amount claimed by the complainant for each year, and also to the number of years for which he should account. The very great preponderance of evidence fixes a fair rental value at $150 per year. I find no reason for the court to interfere with the judgment of those who were competent to judge of this matter. The argument that this accounting for rent must be limited to the period of six years from the time of filing the bill, and not from that period prior to the death of the testator, because of the statutory bar, is not well founded in a case like this one. Isaiah is one of the executors, and he accepted the trust, and from that moment he became chargeable with all the moneys in his hands, due to the estate, whether as a debt due from him or from any other source, as well as for moneys received afterwards. What would be the reply of the court to a trustee who, being indebted to the testator on a promissory note, but which should have run the statutory period be fore the settlement of his accounts, and he should at last plead in discharge thereof the act respecting limitations? He doubtless would be ordered to pay. Isaiah is entitled to a credit of $150 on February 28, 1878, and of $50 on March 28, 1879.
3. As to the insistment of Arthur M. Haines that he owes to the estate only $1,143.11 rather than $2,194.50, I conclude he is in error. Prior to his father's death he made a statement of an account between himself and his father, which he gave to his father, and which was found among the private papers of his father, after his death. Within a few days after the death of the testator his will was read, and on that occasion Arthur's attention was called to this statement, when he said it was correct, and that he believed that he owed the estate the amount of $2,194.50. After this statement, and after this admission, both of which were very clearly and understandingly made, Arthur seeks the benefit of the reduction to $1,143.11 by the words and figures following, which are found upon a small half sheet of note paper, among the private papers of the testator, viz.:
| Arthur M. Haines | Dr. | Cr. | |
| 405456 | By cash | 1911.45 | |
| 191145 | 1000 | ||
| 114311 | 2911.45 |
It is shown that these words and figures are in the handwriting of the testator, and nothing else appears upon the paper except a similar statement headed "J. M. Haines," and one, "J. W. Haines." Besides this, John W. Haines, a brother, and one of the devisees under the will, says that he is the J. W. Haines referred to on the paper, and that, in a settlement with his father, his lather allowed him $1,000, at which time he says he gave his father a note for $1,000. He said that he was uncertain whether he would call the $1,000 so allowed him a gift or not, but claimed that he had done some work to earn it. In speaking of the paper on which the above figures are, he says that his father spoke to him respecting it, and that he would allow him $1,000 over and above his claims against his father. For the balance due he gave his father a note, as above stated. To that extent the transaction between them was complete. But nothing further is shown. Whatever may have been the intention of the father with respect to Arthur, or whatever he may have meant to demonstrate by the figures so copied above, there is nothing to indicate, but the figures themselves, and the statement of John W., that his father told him he would give Arthur $1,000 also. It does not appear that Arthur was present, or that the father did anything else to manifest or carry out any such intentions. There was no consideration moving the father upon which a legal liability arises. The most that can be said of it is that the father expressed an intention to give Arthur $1,000, without anything to show that the gift was completed. These are the only questions which have been presented thus far. Should any difficulty be presented in framing a decree for an accounting in this court on other branches of this case, about which, at present, parties do not seem to differ, they may come before the court again with respect to those matters.