Opinion
10-17-1901
HARRISON v. PATTERSON et al.
Samuel A. Besson, for complainant. Abel I. Smith, for defendants.
Bill by Bradney G. Harrison against John M. Patterson, executor of Samuel Fisher, and James Fisher. Decree for defendants.
Samuel A. Besson, for complainant. Abel I. Smith, for defendants.
PITNEY, V. C. The bill is filed by the assignee of a person claiming to be an equitable creditor against the executor and devisee of the debtor to recover certain moneys alleged to be held in trust by the testator for the assignor. The complainant's assignor was the wife of the testator, and the allegation is that just before and during coverture she advanced certain moneys to him, which he accepted and agreed to hold in trust for her.
Several defenses of a technical character were interposed, which may be properly dealt with before considering the merits.
The bar of a decree by the orphans' court of Hudson county, where the testator lived and died, and where his will was probated, limiting creditors, is set up. A sufficient answer to this defense, as it seems to me, is that the whole of the estate of the decedent is still in the executor's hands, and that the sole devisee is a party defendant. At the time of the filing of the bill he was an infant, and the executor of the testator was his guardian by testamentary appointment. The suit is in effect one against both the executor and the legatee and devisee, and is not covered by the decretive bar of the orphans' court.
The next matter set up by the defendant is that, although the action is based upon a contractual transaction between husband and wife, yet, as the action is by an assignee of the wife against the executor and devisee of the husband, the reason for the rule which required such action to be brought in equity no longer exists, and hence the rule Itself does not apply, and the remedy is at law. I am unable to adopt that view. The contract itself is absolutely void at law, and that invalidity is the basis of the jurisdiction of this court. That invalidity is not cured by the death of the husband. The action is still founded upon a contract which courts of law hold to be absolutely void. The case of Gould v. Gould, 35 N. J. Eq. 37, affirmed on appeal, Id. p. 502, supports this conclusion. There the bill was filed by the wife of a deceased member of a partnership firm against the survivors to recover moneys loaned by the feme, the wife, in her husband's lifetime. There, as here, the contract had been made with the husband as one of the mercantile firm, and it was clear that for that reason no action at law would lie upon it in the husband's lifetime. At his death the right of action survived against the surviving partners. But it was not even doubted that a bill in equity would lie.
The next defense is the statute of limitations. The question whether the statute applies at all, and, if it does apply, how far it reaches, is necessarily involved in the details of the transactions between the husband and wife, as shown by the proofs, and its consideration will come in later.
The complainant's case, as produced, is based almost entirely on the evidence of the assignor, the wife of the testator, and strenuous objection was made to the admission of her evidence as to conversations and transactions with the husband. It was argued that the assignment was without consideration and a mere sham, contrived to enable the assignor to be sworn in her own favor in the face of the spirit of the statuteon that subject. It appears clearly enough that the widow assigned her claim against her husband's estate to her son-in-law, and took from him his promissory note for the amount thereof, which he is entirely unable to pay unless he succeeds in this suit. Clearly, he does not expect to pay it unless he does succeed, and then only to the extent of his success. But still the witness holds his promissory note, and, so far as appears, if she could sue upon it she could recover against him. This is a situation of affairs that often comes before the courts in neighboring states, and it has always been held that the appearance of such facts did not defeat the action, nor the competency of the evidence of the assignor. Of course, it goes strongly against the reliability of the evidence. The latest utterances of the judges in this state seem to establish the principle that the competency of the witness to speak of transactions with the deceased depends entirely upon the situation of the record. I am constrained, therefore, to hold the action well brought, and the assignor a competent witness to speak of all facts bearing upon the case, including her transactions with her deceased husband.
Coming now to the case itself: The bill sets up that the assignor on the date of her marriage with Fisher, the deceased, October 1, 1882, was the widow of one Albrecht; that her maiden name was Koenig, and that she was residing in the city of Hoboken; that she had received about $3,000 of life insurance money as the beneficiary of her deceased husband, and that she also had in the Bowery Savings Bank, on deposit, about $300, and had two daughters, aged about 14 and 12 years, respectively; that her husband, Fisher, was then keeping a very small house-furnishing store in the city of Hoboken, and was a widower with one son, a lad, the defendant James Fisher; and that she married Fisher on the 1st day of October, 1882, and that both before and after her marriage to him he solicited her to deliver to him her money for safe-keeping and custody; and that, trusting in him, and believing that her money would be more safely kept by him than by her, she turned over to him the possession of various sums of money. Then follows an enumeration of the different sums, with their dates:
1881. June 13.................... $ 50 00
1882. Sept. 30 .................... 25 00
Oct. 23 .................... 300 00
Nov. 2.................... 100 00
1883. Jan. 30 .................... 25 00
Dec. 17 .................... 3,000 00
1885. Jan. 6.................... 24 00
1886. Jan. 19.................... 645 82
1888. Mar. 10.................... 122 65
1889. Jan. 14.................... 250 00
1889. Mar. 26 .................... 5 00
Dec. 30 .................... 25 00
1891. April 4 .................... 30 00
1892. July 10.................... 25 00
1893. June 16.................... 11 43
Making a total of.............. $4,638 90
The bill further alleges that in December, 1883, upon the receipt of the large advance of $3,000 made in that month, Fisher enlarged his store and restocked it with a large stock of goods, and opened a bank account in the First National Bank of Hoboken, and continued to carry on his business and increased his style of living, until April 21, 1896, when he was suddenly killed by being thrown from his wagon. The bill sets out his will, in which he devised and bequeathed to the defendant James Fisher, the son of his first wife, a house and lot in the township of Weehawken, and his bonds and mortgages, and all his wearing apparel, and all his clothing and jewelry, and all his money in bank; gave his horses and carriages to the daughter of the assignor, Freda, and also gave the stock of goods and fixtures to his son James, and nothing to the assignor, except his household furniture; and appointed Patterson, the defendant, his executor. The will was proven before the surrogate of the county of Hudson on May 4, 1896; and the bill sets out the order limiting creditors, the inventory showing the personal property of the deceased to be worth over $10,000, the assignment by Mrs. Fisher to the complainant of all the money which had been handed to her husband and held in trust by him for her, and that the executor refused to pay over the amount. The prayer is that the executor may be decreed to pay him. After the attestation clause of the will is a testamentary paper in the handwriting of Mr. Fisher, in which he says: "That the $5,000 that I leave, life insurance, go to my wife, Caroline T. Fisher, to be used for the maintenance house and children until either one is married; then the balance to go to her till death." The executor and the devisee answer separately,—the devisee by a guardian specially appointed,—and deny all the allegations of the bill, except that the executor admits that he has enough money in his hands to pay the complainant's claim.
The proofs show that the complainant's maiden name was Koenig. She was born in Saxony, Germany, and lived there till she was about 34 years old. She then (1866) came to this country, and here married her first husband, Albrecht, and has ever since lived in Hoboken. From her signatures shown in the case, she seems to be a woman of some education, but she speaks the English language with some difficulty. Her account of herself is: That her father was a tailor and small shopkeeper, and a man of some means, in the town of Altenburg. That when she was about 15 years old she obtained employment in the royal palace at Dresden as waiting maid for the king's sister, a princess of the royal family, and that she lived there about 15 years, receiving during that time as wages about 25 thalers a month (a thaler is equal to 71.4 cents). That she was called home by the death of her mother to keep house for her father,which she did for four years, and then, in the midsummer of 1866, came to this country. That while living in the palace she saved her wages and tips and fees which she received for extra work, and sent her money as fast as received to her father to deposit in bank, and that when she was ready to come to this country she drew these savings, and that her father added enough to make up the gross sum of 8,000 thalers, equal to about $5,700 of American money. That this money was handed to her by her father in German bank notes and gold and silver coin. That she carried it in a chamois bag on her person to this country. That she married in November, 1806, and she and her husband settled in Hoboken. That he was a basket maker by trade. That they commenced living on a cheap scale in one or two rooms. That he worked at his trade, and opened a little shop, and that she worked at menial service in a club, and, between them, made their living and more. That she bore the two children above mentioned. That they throve in a small way. That the 8,000 thalers was changed into American money,—paper and gold,—and kept in the same bag. So far as appears, she retained it undiminished during her married life with Albrecht, which lasted from 1866 to 1876. At least, no mention is made by her of any use which was made of any of it. That after her first husband's death she continued the business, raising her two children. That during her widowhood and before her marriage to Fisher she made a journey to Germany with her two children, and visited her parents and relatives there, being absent from this country for several months, and on her return she became acquainted with Fisher by his boarding with her in her house. That all this time this large sum of 8,000 thalers was preserved, as I understand the evidence, intact and undiminished, in the same leather bag, and kept, as she says, in a piece of furniture which had drawers in the bottom and a desk and bookcase with glass doors above, and that it was so continued to be kept after she married Fisher until the 17th of December, 1883, when she advanced him out of it $3,000. She swears that she also advanced him the several small sums of money mentioned in the statement above given, at the dates mentioned. She says that about a fortnight before marrying him, namely, middle of September, 1882, she sold out her little shop, and received $300 for it. Instead of receiving $3,000, proceeds of insurance on her first husband's life, as stated in the bill, she actually received only $265. In the beginning of the year 1888 she received between $700 and $800 from the estate of her deceased father, in two or three payments. This is the widow's account of the source of the moneys which she claims she advanced to her husband. It will be seen that the statement in the bill of the source of the large payment of $3,000, namely, proceeds of Insurance on her first husband's life, was entirely erroneous. It was explained by counsel that the error arose out of misapprehension of the witness' statement of the case, and was due to her imperfect use of the English language. Giving this explanation its due weight, I cannot but think that it is remarkable that counsel should not have been furnished at the start with the fact that she had gained this large sum of money from her earnings as lady's maid, and had brought it with her to this country. Taking the amount which she appears to have saved from ?her own labors here in this country, the amount of her first husband's life insurance, the amount which she received from the sale of her little store, and what she received from her father's estate, she shows sources of moneys Sufficient to make up the sum of 1,600 and odd dollars, the amount of her claim over and above the item of $3,000. Just here I will notice another fact of much significance. She opened a bank account on the 10th of July, 1880, with the Bowery Savings Bank of New York City, which is produced. On the day just named, which, it is perceived, is two years and three months before she married Fisher, she deposited in that bank $150; on October 1st of the same year she deposited $10; October 4, 1881, $21; and on October 6th, $7. In 1882, February 13th, she deposited $26. On September 20th, five days before she was married, she deposited $100. In 1888 (about the time she received the moneys from her father's estate) she deposited $250. Against these moneys she drew from time to time as follows: 1881, June 13th, $50; 1882, September 30 (just before her marriage), $25; 1882, November 2d (one month after she married), $100; 1883, July 30th, $25; 1885, January 6th, $24; 1889, January 14th, $250. In March, 1885, $5: December 30th. same year, $25; April 4, 1891, $30; July 10, 1892, $25. As I have said, she swears to loaning Mr. Fisher, before and after she married him, the various sums of money set out in the bill; and, throwing out of consideration numerous contradictions and inconsistencies in her evidence with regard to the advance of the smaller sums, and the source from which they came, I should feel disposed to credit her statements, were it not for the item of $3,000. She does not give any account with regard to what became of the balance of the sum of $5,700 after taking out the $3,000 which she says she advanced to her husband. Without relying on the improbability of her having saved so much money in her position in the royal house of Saxony, I find her story of the history of that sum of money from the time she arrived in this country in 1866 up to the time that she married her second husband In 1882, a period of 16 years, so highly improbable as to be well-nigh incredible. It appears pretty clearly from her own evldencethat she did not become possessed of the piece of furniture in which she swears she all the while kept the money until some considerable time after she arrived in this country; for her account of the purchase of house furniture and the mode of life of her and her first husband when they first arrived in this country almost excludes the idea that she could have owned any such article for several years, at least. Then, too, she had a sister all the while living in this country; and, so far as appears, she never heard of this large sum, or of any sum. Then no attempt was made to explain where it was deposited during the time she was in Europe with her children during her widowhood, nor is there any satisfactory reason given why the whole or some part of it was not deposited in bank, and why she should feel disposed to deposit in bank the various small sums of money which are found in her bank book, and leave this large sum lying idle. Then, again, neither of her own children ever heard of this money. Neither of the drawers, in one of which she says she kept it, was locked. They were used for the storage of ordinary household articles, and were accessible to, and their contents frequently handled by, both her daughters. Her oldest daughter—not the wife of the complainant—immediately upon her mother's marriage, went, with her younger sister, into the employ of Fisher in his store; and the oldest daughter was soon advanced to the position of cashier, made many of her stepfather's purchases of goods, and handled all the money taken in the store; and she swears that for the first year or so, and until December 17, 1883, no bank account was kept by him; that the money that she received in the store for the day was lolled up and carried home and kept in the house till morning, and then brought back to the store, and the bills for goods purchased were paid out of it in currency; that the sales increased so rapidly and the business became so flourishing that she herself suggested that a bank account be opened, and that she herself on the day the bank account was opened took the money from the store and made the first deposit, being $744.70, and that this sum was the proceeds of sales at the store; that she never heard of her mother having this large sum of money, or of her loaning that or any money to Mr. Fisher; that, as far as she knows, it never went into the business. She further swears that she never heard of a written receipt presently to be mentioned. I have said that, but for the interpolation into the case of the large sum of $3,000, I should feel disposed to credit Mrs. Fisher's statement. That disposition is increased by another piece of evidence. She swears that her husband gave her a receipt for these moneys, signed by himself, giving the day, date, and amount of each item, up to December 17, 1883, the date of the loan of $3,000, and that she also signed it, and a neighbor, Mr. Katencamp, who has since died, signed it as witness; that the subsequent advances were entered upon it by her husband as they were made; that she kept that paper in her house, in the same desk, until some time in the year 1885, when the house was one day robbed, and it was then suggested by Mr. Fisher that it would be safer to place it in the fireproof safe kept in the store, and that she placed it there, and saw it from time to time until some time before his death; and that when the safe was opened after his death the paper was not found, and she expressed great surprise. This expression of surprise was apparently genuine, as testified to by other persons who were present at the time. The complainant put on the witness stand one person, a Mr. Haskell, who swears that he saw that paper, and he is apparently a respectable witness. He said it appeared to be a receipt for moneys, and that it was signed by Mr. and Mrs. Fisher and Mr. Katencamp, the witness. He at first said that he saw the figures "$3,000" in it, but upon cross-examination it turned out that he only heard Mrs. Fisher say that among the sums in it was $3,000. The testimony of the witnesses was taken before a master, and I did not have the advantage of seeing this witness, and yet there is nothing in his direct or. cross-examination to impeach his character. He was a friend of the family, and a frequent visitor. Then we have the unwitnessed addition to the will, by which the testator gave his wife the proceeds of his life insurance policy of $5,000. This indicates that he felt under some obligation to her. It was explained by counsel, though not proven, that he surrendered this policy in his lifetime, and obtained a sum of money for it. Then, on the other hand, there is the circumstance that neither of the daughters ever saw or heard of either the large sum of money or of this important paper. And why should Mrs. Fisher show such a paper to Mr. Haskell, the witness, and not to her daughters? Then, again, the elder daughter swears that she cared for the cash in the store and carried the key of the safe, and was familiar with its contents, up to about a year before her stepfather died, when she was succeeded by his son Tames, who had arrived at an age sufficient to enable him to work in the store. Now during that last year it is the theory of the complainant that the paper may have been abstracted, and James Fisher was not put on the stand to tell what, if anything, he knew about it But taking the whole case together, I am bound ever to bear in mind the danger of relying upon the evidence of the widow, and the duty of the court to scrutinize it closely, and to always Inquire whether or not it is in itself inherently probable, or the contrary. Now, from this standpoint, I am forced to the conclusion that the evidence of this woman withregard to the large sum of money which she brought from Germany, and which she sweats she kept under the circumstances above stated so long in the house, is, as I before observed, so nearly absolutely incredible as to compel me to treat it as discrediting her as a witness; and, of course, if she is discredited as to that item, it throws such a discredit upon her whole evidence as to those items concerning which the mind would be disposed otherwise to credit her as to render it highly improper and dangerous to found any decree upon her evidence, standing as it does in this case substantially alone. This renders a consideration of the effect of the statute of limitations unnecessary.
I will advise that the bill be dismissed, with costs.