Ladd v. Harvey

27 N.H. 372 | Superior Court of New Hampshire | 1853

Gilchrist, C. J.

The bill, in this case, prays for an account of the property in the hands of Nathaniel G. Iiarvey, not inventoried by Daniel W. Ladd, the executor of the property of Mrs. Watson, and of the property in his hands, bequeathed to Louisa by Mrs. Watson, but never delivered to her.

We have decided, in this case, that the limitation over to the orator, of the property given to Louisa, is valid by way of executory devise, and that he was entitled to it. 1 Foster’s Eep. 514.

A master was appointed to take an account of the property which is the subject of the bill, and his report is now before us.

The orator had an interest in the property limited over to him, which could not be taken away by the act of Louisa, nor could her husband, by his marriage with her, deprive the orator of any rights given by the will. If the property is in the hands of any one of the respondents, the orator is entitled to a decree against him therefor.

The will gave Louisa two hundred dollars in personal property, and two thousand dollars, to be paid her by Daniel W. Ladd, the executor of Mrs. Watson. She received the personal property and $180,68 under the residuary clause, and on the 16th of December she received the two thousand dollars.

The master reports that there was in the ha'hds of Nathaniel G. Harvey, at the decease of his wife Louisa, property to the amount of.................................$870,92

That he should be charged with the money lent • Plumer,....................................1,303,08

2,174,00

unless this latter sum should be charged to Plumer or Dudley L. Harvey.

A part of the household property bequeathed to Louisa was in the hands of Nathaniel G. Harvey, at her decease, but how much does not appear.

On the 16th day of December, 1847, Daniel W. Ladd, the executor of Mrs. Watson, paid to Mrs. Harvey one thousand dollars, which she then lent to Plumer, who gave her his note for it. On the 17th of May, 1848, Plumer gave his note to Nathaniel G. Harvey for that sum, and the interest, $1,020,83, and on that day she made her will, giving all her property to her husband, Nathaniel G. Harvey. She died on the 26th of May, 1848.

On the 2d of June, 1848, Nathaniel G. Harvey demanded payment of the note of Plumer. Dudley L. Harvey then gave Nathaniel G. Harvey his two notes for five hundred dollars each, and $20,83 in money. Nathaniel G. Harvey gave up to Plumer his note, and Plumer gave his note to Dudley L. Harvey for $1,020,83. Soon after Dudley L. Harvey took up his notes, and gave Nathaniel G. Harvey therefor a note of B. Goodrich for eight hundred dollars, and two notes of Blake for one hundred dollars each. In September, 1848, Dudley L. Harvey took up these last notes, and paid Nathaniel G. Harvey nine hundred and thirty-two dollars, and gave his note for seventy dollars, which he has paid since this suit was brought. Dudley L. Harvey still holds Plumer’s note for $1,020,83, which is unpaid.

There should be a decree against Daniel W. Ladd for $1,036,63, which he holds as executor of Mrs. Watson, and which, by her will, was given to Louisa, with a limitation over to the orator. This sum is included in the residuary clause of Mrs. Watson’s will,..................$1,036,63 Against Nathaniel G. Harvey, according to the report of the master, there should be a decree for 870,92 The sum lent fo Plumer amounts, with interest, to 1,303,08

When this money was lent to Plumer, it was a debt due, both in form and substance, to Louisa. After her death it belonged to the orator, and she could not dispose of it by will, in violation of his rights. Her husband, Nathaniel G. Harvey, acquired no right to any thing but the use of it, in consequence of the marriage. Persons who had no right to interfere with it, have undertaken to control it; and as Nathaniel G. Harvey has absconded, the question seems to be whether the orator shall lose the money, he having been in no fault, or whether Dudley L. Harvey shall lose it, who has, from some motive, interfered and aided in diverting the money from the orator.

Before May, 1848, when Louisa died, Dudley L. Harvfey knew that she received money from Mrs. Watson’s estate, under her will, and that there was some dispute about it, between the-orator and Nathaniel G. Harvey, and that the orator asserted a right to it, and that his brother, Nathaniel G. Harvey, had little property before his marriage.

It is apparent that Plumer has never paid the note he gave to Mrs. Harvey. ' There has been merely a substitution for-it of his note to Dudley L. Harvey. The debt still remains due. As the interference of Nathaniel G. Harvey was unauthorized, ought it to be paid to him, or should Plumer be decreed to pay it to the orator ?

It is’’said by Lord Lyndlmrst, in Small v. Atwood, Younge 458, that all persons who are interested in the question should be made parties to a suit in equity. It is an object of a court of equity to provide for the rights of all persons whose interests are immediately connected with it. It is important here for Plumer to know to whom he may pay his note. He has an interest in the object of the suit, which is to enable the legatee to get his legacy, as he holds the subject-matter of it in his hands. It would seem, therefore, that, in a proper case, a decree might be made that he should pay the note to the orator.

Dudley L. Harvey has an interest, for he took the note from Plumer, and advanced the money to Nathaniel G. Harvey. Knowing what he did, he should have inquired and ascertained what were the rights of Nathaniel G. Harvey. In the case of Hill v. Simpson, 7 Vesey 152, where executors applied part of the testator’s assets as a pledge in payment of their own debts, a decree was made against the persons with whom the assets were deposited. The court held that they had been negligent; “ that if they had looked at the will, they would have seen that he had no right to assign the stock until certain claims were satisfied. Common prudence required that they should look at the will, and not take the debtor’s word as to his rights under it. If they neglect that and take the chance of his speaking the truth, they must incur the hazard of his falsehood. It was gross negligence not to look at the will.”

The decree should prohibit Dudley L. Harvey from negotiating or disposing of the note. Should it not be delivered to the clerk, as a receiver, for the benefit of the orator ?

Plumer should be decreed to pay the amount due on the note to the orator, and on evidence of that, the clerk should deliver Plumer the note.

The furniture remained in the hands of Nathaniel Gr. ■Harvey, at the death of his wife, which the master finds to be of the value of two hundred dollars.

Plumer should be charged with the amount of the note. He has never paid the note.

Nathaniel G-. Harvey could have made it certain how much was the value of the property in his hands at the death of his wife ; and as he might have done so and did not, he should be charged with the full value of two hundred dollars.

We shall direct the following decree to be entered up:

Upon the report of Albert R. Hatch, Esquire, the master in chancery in this ease, being submitted to the court, and after hearing the arguments of the counsel, it is adjudged and decreed by the court,

That Nathaniel G-. Harvey is chargeable with, and that he pay to the orator the sum of §870,92, being the amount of certain securities and money, in Ms hands at the decease of his wife, Louisa, and the interest thereon from the 28th day of December, 1848. -

Also, with so much of the household property as remained in his possession at the decease of his wife, and which was bequeathed to her by the will, after the decease of Mrs. Louisa Harvey, being the property of the orator, and that he deliver the same to the orator.

That Daniel W. Ladd, the executor of the will of Mrs. Watson, pay to the orator the sum of $1,036,63, being the balance in his hands upon the rendition of his second account, this sum being included in the residuary clause of Mrs. Watson’s will, and after the decease of Mrs. Louisa Harvey, being the property of the orator.

That Dudley L. Harvey be charged with the sum of $1,023,83, with interest thereon, at the rate of five per cent., from the second day of June, 1848, being the amount due Mm on William Plumer’s note, and that he be further decreed to deposit said note with the clerk of this court.

That William Plumer be decreed to pay the sum due on said note to the clerk, who shall thereupon pay the same to the orator, taking Ms discharge therefor, and the clerk shall then deliver the note to the said Plumer.

And it is further decreed that the payment of the amount due on said note by Plumer, shall discharge him from all liability on the note, and shall also discharge Dudley L. Harvey from the liability imposed on him by this decree.

It is also decreed that costs be taxed for the orator against Nathaniel G. Harvey and Dudley L. Harvey, but not against Daniel W. Ladd or William Plumer, and that they recover no costs.