Opinion
12-31-1887
TRUAX v. WHITE et al.
A. C. Hartshorns, for complainant. Frederick Parker, for defendant White.
Bill to foreclose a mortgage.
Truax, administrator of William White, deceased, filed this bill to foreclose a mortgage given by Atlantic White to complainant's intestate, making Jane White, wife of deceased, party.
A. C. Hartshorns, for complainant. Frederick Parker, for defendant White.
BIRD, V. C. Atlantic White, being indebted to William White in the sum of $916.25, gave his bond, and also a mortgage upon certain real estate, to secure its payment to William White. After the death of William White, the complainant obtained letters of administration upon his estate, and filed a bill to foreclose the said mortgage, and also to have declared null and void another mortgage which was given by said Atlantic White upon the same property to the widow of William White purporting to secure the same money. Mrs. White, the widow, claims that this $916.25 was hers. She says that her husband contracted to loan this money to his brother, Atlantic White, and obtained permission from her so to do; Atlantic wanting just that sum of money to pay his proportion of the purchase money of the lands so mortgaged. She says that her husband, William, came to her and told her that he had promised Atlantic that he would furnish him with that amount of money in case he bought this land, and asked her if this money could be used for that purpose, to which she consented. She says that afterwards she gave this money to Atlantic White herself, and informed him that it was hers. It appears that the money was handed to Atlantic before the papers were executed, or the bond and mortgage given as security therefor. However, when the bond and mortgage were executed by Atlantic, they were drawn to William, and by him taken to his home in Brooklyn, where they remained until after his death, which occurred in a few months thereafter. Mrs. White insists that when he brought the bond and mortgage home they were wrapped in paper; that he handed them to her, saying, "There is the bond and mortgage for the money," or something to that effect, and that she placed them in a drawer where her husband kept his papers; but that she did not know that they were drawn in her husband's name until after his death, when a brother of hers, upon the inspection of them, informed her of that fact. This important fact being known, Atlantic was immediately sent for. He went from near Asbury Park to Brooklyn, and was there prevailed upon to consent to execute a second bondand mortgage for a like sum. They proceeded to Freehold, in the county of Monmouth, and there procured a bond and mortgage to be drawn, which was executed by Atlantic and recorded, the first bond and mortgage being then surrendered to Atlantic. I am to determine, under the testimony, whether Mrs. White is entitled to this bond and mortgage as against the administrator of her husband, William, who obtained possession of the first bond and mortgage, made an inventory thereof, and caused it to be recorded. Mrs. White has been sworn. Much of what she has said has been objected to as illegal, because it pertains to conversations and transactions by and between herself and her deceased husband, of whose estate the complainant is administrator. To her testimony respecting these conversations and these transactions the statute seems to be an effectual bar. With so much of her testimony out of the case, the inquiry seems to be comparatively limited. Whose money was the $916.25. She declares that she received this amount of money from her father; that her father, in making division of his estate in his life-time, gave her so much of it, and at the same time a gold watch, in all making the gift about $1,000. This money, it appears from her own statements, she kept between the ticks of a bed on which she and her husband slept, which fact she says was unknown to her husband. This is a remarkable statement, when it is admitted by her that she kept a bank-account in her own name, and that all of the moneys which her husband earned over and above expenses were given to her and deposited by her in the savings institution where all their moneys were kept, as I have said, in her name. To me, it seems quite incredible, if she received an amount of money from her father equal to $900, that she went to the precaution of making deposits of all the small sums from time to time that her husband received by way of earnings and gave to her for that purpose, and would not deposit that large amount also. But what is equally characteristic and striking in the case is that no one else is called to support the defendant, Mrs. Jane White, with respect to her declarations in this particular, except her brother, who only speaks of her father having about this amount of money which he understood was for Mrs. White.
But supposing that she had $916.25, is the proof at all clear that the money loaned by her husband was that same money? The burden is on Mrs. White. Taking so much of her testimony as is not excluded by the statute, it would appear that she had $916.25, and that she carried just that amount from Brooklyn to Asbury Park in a stocking, and then gave it to Atlantic White, saying to him that that was the money her father had given to her. But Atlantic says she did not see him alone, and pay him the money. He says that the next day after Jane came to his house, her husband came, and that he brought a satchel out of the room which he and his wife occupied, and that he paid him the money. He further says that when his brother paid him this money, Jane said nothing about its being her money. Abigail White, a sister of William and of Atlantic, says that Jane had the satchel, and said to her that she wished her husband would come and take care of the money, for she didn't want to be bothered with it. In addition to this William took the bond and mortgage in his own name, and carried them to his house, and handed them to his wife, who immediately placed them in his drawer, where he kept his private papers, among such papers, without examining them or inquiring of him about them. There they remained until after her husband's death without inspection of them by her, or without her making any demand for them. I am aware that Abigail and Atlantic are interested as the next of kin of William, as Jane is as claimant of the whole fund; but after giving due consideration to this fact, and all the other facts above adverted to, I cannot conclude that Jane has discharged the burden resting on her as such claimant.
I think the bill was properly filed by the complainant; that he is entitled to the relief prayed for; the said mortgage given by Atlantic to Jane being null and void. I will so advise, with costs.