62 N.Y.S. 359 | N.Y. App. Div. | 1900
This appeal coming on to be heard, the appellant moved, under section 2586 of the Code of Civil Procedure, for a reference to take further proof upon the subject-matter involved in the appeal, and this motion having been granted, the appeal is now heard not only upon the record upon which the learned surrogate acted, but also upon the report of the referee appointed to take the testimony. This court is invested with authority, even though no additional proof had been taken, to make an independent determination upon the facts and the law. (Matter of Rogers, 10 App. Div. 593.) Having in substance made a new case, the necessity is imposed upon this court of making an original determination.
Upon the proof as it now appears before this .court, it must be deemed to be established that the deceased, at the time of his marriage to the claimant, presented to her as a wedding present fifty United States four per cent bonds of $1,000 each. The details of this transaction are very fully set out in the testimony of Sidney Starbuck, a brother of the deceased. The testimony of this witness is the subject of just criticism, in view' of the fact that the relation between himself and the claimant was one of estrangement, and that he had been engaged in an attempt to enforce a claim against his
Interpreted, however, pursuant to this rigid rule, it harmonizes so completely with undisputed facts as to entitle it to credence. He testified that the deceased took from the Farmers’ Loan and Trust Company the fifty United States bonds, and directed the secretary of that institution to send.them by express to his address at Philadelphia; and this fact is corroborated by the record of the trust company that such bonds were in fact so sent. The deceased was then engaged to be married to the claimant, who resided at Chester a short distance from Philadelphia. While there is no proof aside from the testimony of this witness that the deceased in fact took such bonds from the express' office in Philadelphia and delivered them to his wife, yet it appears that upon his return from his wedding' trip he delivered to the witness these bonds and requested him to wrap them up and indorse thereon, “ Fifty, one thousand, U„' S. government bonds, the property of Matilda E.. Starbuck,” which the witness states he did, and deposited them in the safe deposit vault of the deceased. He further testified that subsequent to this.time the deceased informed him that these bonds were not drawing a sufficient rate of interest, and that he believed northern Pacific sixes to be a good and safé investment, and that he proposed to sell the government bonds and invest the money in the Horthern Pacific sixes. In connection with this testimony there appeared in the check book of the deceased, which he had in use at that time, two entries on the stub,, one reading, “January 10, deposit loan from Farmers’ Loan and Trust Company on 50 U. S. 4s, $50,000and the other reading, “ Jan. 10, Drexel, Morgan & Co., balance for 50 one thousand dollar Northern Pacific bonds, property of Matilda E. Starbuck, $39,845.68.” It further ' appeared from the testimony that it required the proceeds of the
Upon the death of the deceased there was found in his office safe his will and his private papers, among which were twenty different statements containing private memoranda in the handwriting of the deceased, in which are set forth a statement of his own assets and liabilities and also the assets and liabilities of the claimant, his wife. The first of these memoranda is dated October 26, 1885, and the last December 6, 1894. In the first appears this statement: “ Due Mrs. Tfilie T. Starbuck 50 Northern Pacific bonds and interest for several 'years, about $65,000.” In the statement under dpte of April 12, 1893, appears, under the heading “ Property of Matilda E. Starbuck,” “ Debt due Matilda E. Starbuck by W. H. Starbuck, $65,000 and interest from .1882. The same being proceeds of 50 Northern Pacific First Mortgage Bonds owned by her before her marriage to me, and which she lent to me.” In the last statement, under date of December 6, 1894, under the heading “ Liabilities of W. H. Starbuck,” appears the entry “ Tillie E. Star-buck, $60,000.”
We are of opinion that this testimony satisfactorily establishes
Upon "the hearing before the 1 darned surrogate Mrs. Starbuck was called as a witness and was permitted to testify that fifty bonds of the Forthern Pacific Railway Company, $1,000 each, were given to her as a wedding present, and therefrom the surrogate deduced the fact -to be, when taken in connection with the declarations of the deceased, that while it was intended by the latter to make such gift, yet that it was never consummated by a delivery of the bonds; and this view found some considerable support in the fact that it nowhere appears, aside from Mrs. Star-buck’s testimony, that the deceased was in possession, of such bonds until some time subsequent to his marriage; and that while hé declared them to be the property of the claimant, yet such declaration rested in intention merely, and was not sufficient to establish a consummated gift. It is; by no means unnatural that the claimant should have been mistaken in her testimony as to the bonds; she "had then had before her since 1882 the account delivered to her by the deceased in which were recited the fifty Forthern Pacific bonds; and in view of the fact now clearly appearing that the United States bonds were the bonds presented and subsequently exchanged for the Northern Pacific bonds, the mistake appears most natural. . Indeed, Mr. Starbuck states in the ¡memoranda the same thing, although it is evident that the_y did not constitute the wedding present. We have little doubt that had the surrogate had before him the full explanation, he would have reached the same conclusion which this court has reached.
But, in addition, the learned surrogate reached the conclusion .that even though it be admitted that the bonds- were the property
We think, therefore, that the conclusion reached by the learned' surrogate upon this question may not be sustained. In the statement under date of December 6, 1894, among the assets stated as belonging to W. H. Starbuck, appears “ Property at (Greenwich ?), 12 acres belonging to W. H. Starbuck and standing in the name of Matilda E. Starbuck, for which I. have been offered $55,000.” The item stating the liability of Starbuck to the claimant in this statement reads: “ Tillie E. Starbuck, $60,000.” From this it appears that at this time, in some manner, the liability of the deceased to the claimant had been decreased to the sum of $60,000, and that at that time she held title to property belonging to him of the value of $55,000. It was suggested upon the argument that inasmuch as the claimant held property of the deceased in an amount nearly equal to the amount of Ids liability to her, the former might be regarded as an offset h> the latter debt. Such would appear to be the clear equities as between the deceased and the claimant and ought to be held to extinguish the claim of the plaintiff joro tanto. It was thereupon stated by ¡the counsel that the claimant was willing to stipulate to transfer the property therein mentioned, to which she held title, in the event of the allowance of her claim appearing to be due by the latter statement, and since the argument the claimant has filed 'such stipulation and the same now forms a part of the record of this case.
We have, therefore, reached the conclusion, based upon the whole
' It follows that the decree of the surrogate should be reversed and the proceeding remitted to the Surrogate’s Court for final determination.
All concurred, except Hibsohberg-, J., taking no part.
Decree of the surrogate of Westchester county reversed, with costs to both parties payable out of the fund, upon the appellant stipulating to pay into the estate of the testator the proceeds of the Portchester real property which belonged to the estate of her husband and. to which she held title, together with interest thereon; such stipulation, however, not to he binding unless the appellant shall be finally successful in establishing her claim herein if an appeal be taken. Upon failure to give such stipulation the decree is affirmed.