73 N.J. Eq. 544 | New York Court of Chancery | 1908
It is urged in behalf of defendant that as no administrator of the estate of Dr. Buchanan has yet been appointed, this court should not, at the instance of the next of kin, exercise jurisdiction over any personal property’which may have belonged to him at his decease. While it is true that personal property of a' deceased intestate must pass to a personal representative and be distributed under order of court to the next of kin of deceased, it is not true that the next of kin are without interest in the protection of the property before an administrator is appointed. Where, as in this case, it is alleged by the next of kin that the personal property of a deceased intestate is being misappropriated by a stranger, it is the peculiar province of this court to protect the property and preserve its present status until an administrator shall have been appointed. To await the appointment of an administrator and an application by him to this court for the protection of the property, might, in many cases, result in the loss of the property. This court may, in such cases, ap
At the hearing complainants called defendant as their witness and examined her at great length. It is now urged, in behalf of defendant, that complainants are, in consequence, bound by her testimony so far as it is responsive to the questions asked. That is not the effect of calling an adverse-party as a witness. By making defendant their own witness complainants were precluded from impeaching her credibility. That is, they could not offer evidence for the purpose of showing that she was unworthy of belief as a witness. But they were not precluded from introducing evidence to establish facts the contrary of facts to which defendant testified while testifying as complainants’ witness. Such evidence would tend to discredit, and might entirely discredit and wholly destroy, the force of the evidence given by defendant and in that manner affect her credibility; but the rule of evidence which denies to parties the right to impeach their own witnesses does not prevent impeachment in that manner. The rule against impeachment denies the right to impeach the general reputation of the witness for truth, but does not deny the right to show that the whole or any part of the testimony of the witness is untrue. 1 Greenl. Evid. §§ 442, 443; Skellinger v. Howell, 8 N. J. Law (3 Halst.) 310; Ingersoll v. English, 66 N. J. Law (37 Vr.) 463; Thorp v. Leibrecht, 56 N. J. Eq. (11 Dick.) 499. Nor does the fact that complainants assert the credibility of defendant in offering her as their witness in any way require the court to accept the testimony as true as against complainants. As is stated by Vice-Chancellor Van Fleet, in Daggers v. Van Dyck, 37 N. J. Eq. (10 Stew.) 130, 132, and in Second National Bank v. O’Rourke, 40 N. J. Eq. (13 Stew.) 92, 94, evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself — such as the common experience and observation of mankind can approve as probable under the circumstances. In
The value of the property, real and personal, which the evidence discloses to be now held by defendant, is not definitely shown, but it may be said to be about $15,000 or $20,000. Defendant claims that this property belongs to her. To account for the possession and ownership of this property, defendant relates the history of her life, which may be briefly outlined as follows: Until a young lady, she lived with Rece and Ann Hurffi, at Roadstown, New Jersey, believing them to be her parents. Mrs. Iiurff then disclosed to her that she was not her mother. Later, she went to live with Dr. Stitts, at Salem. While living there she learned that her real father was Dr. John' Buchanan. In 1885, she went to New York City and there established the business of a manufacturing chemist and engaged m compounding and selling proprietary medicines under the business name of Buchanan & Company. Shortly thereafter she sent fox Dx. Buchanan, who was then in Philadelphia, and in destitute circumstances, to come and make his home with her. From that time until his death Dr. Buchanan was supported by her in her home, first, in New York City and later in Brooklyn. At his death, January 20th, 1905, Dr. Buchanan had no property and was buried by defendant at her own expense. In her answer defendant accounts for the property which she has by the statement that it represents, in part, the profits from the business conducted by her under the name of Buchanan & Company, and in part, earnings by her as an artist,and as an authoress. In her testimony she claims an additional source of revenue. She states that a heavily veiled woman would call upon her from time to time and present her money; that this woman claimed to be her mother and refused to permit defendant, at any time, to see her face or to know her name. The aggregate amount of the gifts received from this unknown woman is estimated by defendant at about $10,000. Defendant claims that the money so given to
It is manifest that, if defendant’s testimony is true, Dr. Buchanan died’ without property, and the property now controlled by defendant belongs to her. I am, however, unable to believe her statements. While the general story of her life may be within the bounds of possibilities, so many of her statements conflict and’ so many are otherwise manifestly untrue that it seems impossible to rely upon the most material parts of her testimony. The evidence offered in behalf of complainants entirely satisfies me that defendant is not the illegitimate daughter of Dr. Buchanan, but that she is the daughter of Mr. and Mrs. Beee Hurff. Daniel Hurff testifies that he was the second of nine children of 'Bece and Ann Hurff, and that defendant had always been
The evidence offered in behalf of defendant clearly establishes the fact of defendant’s activity in the management of the business of Buchanan & Company. She appears, to have had practically the entire charge of the.business. . She handled’the cash and deposited it in bank to the account of Buchanan & Company and dr.ew all checks against that account... Places where the business was at times conducted were rented by herv The ex-pressman who shipped the products.of the business testifies that he transacted all of his business with defendant. The evidence
It'is earnestly urged in behalf of defendant that fraud is not to be presumed, but that it must be established by proofs. The rule is as stated by counsel, but positive and express proof of fraud is not required. Fraud may be deduced from circumstances and conditions which afford strong presumptions of its existence. It is not impossible for courts of equity to relieve against fraud which is established by presumptive evidence only. 1 Story Eq. Jur. § 190; 3 Greenl. Evid. § 254; Torrey v. Buck,
I will advise a decree enjoining defendant from making any disposition of the property in her possession and under her control other than its-surrender, to an administrator,of the estate of Dr. John Buchanan, when an administrator shall have be.en appointed.