19 Barb. 631 | N.Y. Sup. Ct. | 1855
The plaintiff is the grandson and the defendant the son of John Hunter deceased, late of Hunter’s Island in the county of’Westchester. Both of them are named as executors in the will of the deceased, and the object of the action is to establish the right of the plaintiff, and compel the delivery to him of certain choses in action or securities for the payment of money, formerly the property of the defendant’s testator, but alleged in the complaint to have been assigned over and given by him to the plaintiff.
I can perceive no force in the defendant’s objection to the plaintiff’s right to maintain the action. At the common law,
. The referee who took the testimony received as evidence, under the defendant’s objection, the declarations of the defendant’s testator, that he intended to give, and had given, the securities in question to the plaintiff. In this he was right. The plead
The principal question' is upon the right of property in the two written securities mentioned in the complaint. The first is a contract for the sale of certain lands in the county of Ulster, made between John Hunter deceased, of the one part, and Hep? ry Wilbur and others, of the other part, upon which there was due, and to grow due to John Hunter, the sum of $8000, and the second is a bond and mortgage made "by Ezra Fitch and Dennis W. Skeel, upon lands in Saugerties, Ulster county, to secure the payment of $15,000, with the interest, to John Hunter. For the contract with Wilbur and others, the plaintiff produced and proved a deed of assignment from John Hunter to himself, in the usual form, and under seal, for the consideration of one dollar, and dated the 29th day of April, 1852, For the bond and mortgage of Fitch & Skeel, he also produced and proved.a similar deed of assignment, dated August 21st, 1852. Both deeds were witnessed by Mary Mills, a lady who resided in the family of the testator, and Mrs. Ann M. Hunter, the mother of the plaintiff. It is not claimed that the plaintiff purchased the securities, in the ordinary sense of the ternii^or that he paid or parted with any valuable consideration for them. His title, if any, must be maintained as a gift. It is evident that it is not one of that class known as donatio causa mortis, because the essential conditions of such a gift are wanting. It was not made in the last illness of the donor, and in contemplation.and expectation of death, and to take effect in that event. He was indeed a man far advanced in life, but he was in the enjoyment of his usual good health. He had already made his will, .in which he
The proof of the actual delivery of the securities in question is to be found principally in the testimony of Mary Mills, one of the subscribing witnesses to the deeds of assignment. It appears that on the 19th of April, 1852, John Hunter, sen. drew up with his own hand, and executed, two deeds of assignment to the plaintiff, one for. the Wilbur contract, and one for the Eitch & Skeel bond and mortgage, which were witnessed by Mary Mills, and then laid away by him, amongst his papers. At this time the plaintiff was absent in Charleston. There is no evidence that the deeds were then delivered to the plaintiff, or to any other person for his use. In August following (about the 21st,) the testator being at his residence at Hunter’s Island with Mrs. Ann M. Hunter and Mary Mills, went up stairs and brought down certain papers into the library, and said to Mrs. Hunter that he had been collecting together John’s income; that one of the assignments was imperfect—the one dollar consideration being omittech • He desired her to draw a new assignment, which she
“ Bonds assigned and to be assigned to John Hunter, junior.
Bobert B. Hunter’s bond and mortgage, Williamsburgh, $8,800.
Bond and mortgage, Saugerties, $15,000.
George North’s bond and mortgage, $9000.
Henry Wilbur and others bond and mortgage, Napanock, #8000.”
On the outside of the wrapper, he wrote as follows, “ 22 Aug. ’52. Memorandum of bonds and mortgages, assigned to my grandson, and contracts for his use. Jno. Hunter.”
He then exhibited the indorsements to Mary Mills, the witness, and said to her, “ See this, Mary; I want you to recollect particularly what is going on.” He then delivered the papers into the hands of Mrs. Ann M. Hunter, and said to her, “ These are John’s papers. Put them away for John. There is no doubt now that they are his.” Mrs. Hunter took the papers and put them by themselves in a pigeon-hole in a family safe, where the plaintiff, John Hunter, sen., and the defendant each had papers. At this time and at the time of John Hunter sen.’s death (which occurred on the 12th of September following,) the plaintiff and the defendant were at Newport. The deeds of assignment, together with the bond and mortgage and the contract in dispute, were found by the defendant after the death of the donor enclosed in the same wrapper and in the same place where Mrs. Hunter placed them.
The evidence of the testator’s declarations after the papers were given to Mrs. Hunter, and that in regard to the subsequent modification of his will, I do not deem it worth while to notice, because it affects the question of the delivery remotely, if at all. It will be seen that the subject of the gift is definite
The plaintiff is therefore entitled to a decree or judgment establishing his right to the securities, and for their delivery over
Brown, Justice.]