249 A.D. 336 | N.Y. App. Div. | 1937
Lead Opinion
Appeal from a decree of the Surrogate’s Court disallowing the claim of each claimant and from an order denying a motion for a new trial.
Frank H. Barker, a resident of St.Lawrence county, died intestate; administrators of his estate were appointed; the claimants Cook Academy and Keuka College each presented a claim for $3,000 against the estate. These were rejected by the administrators and a trial and determination thereof had upon the judicial settlement of the administrators’ accounts. (Surr. Ct. Act, § 211.) The basis of each claim was a non-negotiable note. These were identical in form except the name of the payee.
“ Endowment Note
“ $3000.00
“ Canton, New York, September 18, 1919.
“ For value received and as a subscription to the Endowment Fund of Cook Academy [Keuka College] located in the State of New York, we Frank H. Barker and Alice M. Barker of St. Lawrence County, New York, do promise to pay to the Trustees of said Cook Academy [Keuka College] the sum of Three Thousand Dollars. Said sum to be paid out of our estate Twelve months after our death, with interest from the date of our death at the rate of five per cent per annum if not paid when due.
“ Without relief from valuation or appraisement laws, and to be used as part of the endowment fund of said institution, the principal to be maintained forever, and the interest only to be used for current expenses.
“Attest: Myron W. Haynes
“ FRANK H. BARKER
“ Signed
“ ALICE M. BARKER.”
In Matter of Taylor (251 N. Y. 257) executors paid two notes upon the assumption that the words “for value received ” implied consideration. The surrogate decided that the evidence offered by the objectors did not overcome the presumption of consideration arising from the words and that the payment of the notes by the representatives of the estate placed the burden upon the objectors to prove illegality of payment. (Surr. Ct. Act, § 210.) This was affirmed by the Appellate Division (225 App. Div. 711), but reversed by the Court of Appeals, the opinion in that court stating as a final conclusion (p. 264): “ The appellant [objector] should have an opportunity to offer evidence of lack of consideration to rebut the presumption arising from the words ' for value received.’ ” Evidence of that character had been excluded. The opinion also discusses the inference generally to be drawn from the words “ value received ” in a note which upon its face indicates that it is a charitable subscription. “ The instrument is equivocal in form. The inference of consideration from the recital of value received is in these circumstances slight. Possibly it may be effectually repelled by evidence of the circumstances surrounding the giving of the note. (Dodge v. Pond, supra.)
I believe that upon the record presented the surrogate was justified, under the authorities, in rejecting the notes. Their form disclosing them to be charitable subscriptions, there was no inference of consideration to be drawn from the words “ for value
Upon the motion made by appellants for “ leave to reopen the proceedings herein for the purpose of presenting other and additional proof of their respective claims,” affidavits were presented, one by the attorney for the claimants, another by Loomis, a member of the faculty and treasurer of Keuka College, and a third by Cate, headmaster of Cook Academy. These state concerning the trial, after offering the notes in evidence, “ that claimants thereupon rested and relied upon the recitation in said notes that they had been given 1 for value received,’ ” also “ That while claimants were prepared with other evidence of consideration and with evidence which deponent believes is sufficient to bring these notes within the cases in which similar notes to charitable institutions have been enforced by the courts of this State, counsel for the claimants wished to rely upon the presumption which they believed was raised by the use of the words ‘ for value received ’ in these notes, and not submit other evidence of consideration until after a ruling upon that legal proposition,” and further, “ That these notes were delivered to the Baptist Missionary Convention of the State of New York under the trust agreement made with it by the claimants, and these notes thus were accepted by the respective claimants upon the conditions implied in them, and by this publicity and by this acceptance undertook to commence performance on their part of the obligations imposed upon them by the notes to perpetuate in memorial form the names of the makers and did so do in so far as they were able and required prior to the actual receipt of the moneys promised.” From appellants’ brief, but not from the record, information is gained that on the back of the Cook Academy note it is written, “ The amount given within is given as a memorial to Frank H. Barker, to be held forever and administered in his name. The interest may be used to aid worthy young men who are preparing for a Christian service. Where there are no young men in the school needing such aid, the interest may be used for the general work of the school,” and that a like writing appears on the back of the Keuka College note except that the name Alice M. Barker is substituted for that of her husband and the aid is to be given to young women. There is no suggestion, either in the brief or in the record, as to the manner in which these writings or indorsements came to be placed upon the back of the notes, and it does not appear that the statements are signed by any person. It is possible that in view of the holding in Allegheny College v. Nat. Chautauqua County Bank (246 N. Y. 369) this evidence might change the result. The power of the surrogate as to this
The decree and order should be affirmed, with costs.
McNamee, Bliss and Heffernan, JJ., concur; Rhodes, J., dissents, with an opinion.
Dissenting Opinion
I dissent from the prevailing opinion in so far as it holds that there was no inference of consideration to be drawn from the notes themselves.
I concur in the opinion in so far as it holds that the order denying claimants’ right to reopen was properly made.
! Although the notes in question are non-negotiable they recite that they are for value received, which constitutes an admission that they were issued for a sufficient consideration. (Prindle v. Caruthers, 15 N. Y. 425; Owens v. Blackburn No. 1, 161 App. Div. 827, and cases cited therein; Strickland v. Henry, 175 N. Y. 372.)
It is true that in the case of Dodge v. Pond (23 N. Y. 69) it was held that the note there in question was void for lack of consideration, even though it recited that it was for value leceived, but the writing accompanying the note and of which it was a part, established beyond question that the note was simply a gift.
In Matter of Taylor (251 N. Y. 257) notes had been given by decedent to different churches, payable at her decease and reciting that they were for value received. The court held that although the inference of consideration from the recital of value, under the circumstances, was slight, nevertheless it did say that the words value received prima facie imply consideration.
In so far as the decree dismisses the claims of appellants it should be reversed, and judgment directed for the claimants.
Order and decree affirmed, with costs to the respondent payable out of the estate.