205 N.Y. 171 | NY | 1912
The plaintiffs are the executors of Hudson Hoagland, deceased; whose will disposed of the residuary estate among his nephews and nieces in proportions stated. The defendant Charles F. Hoagland is a nephew, who had assigned to different persons portions of his share in the residuary estate. This action was brought against him and his assignees that it might be adjudged what amounts were due to the defendants and the order of their payment, "after the set offs of said defendant's, (Hoagland's), indebtedness." Questions had arisen on the accounting of the plaintiffs, as executors, upon objections filed by Hoagland to their offsetting against his share a promissory note for $10,000, made by him to their testator, which the surrogate refused to decide for lack of jurisdiction. Thereupon, this action was commenced; in which it is claimed by the plaintiffs that Charles Hoagland was, at the testator's death, further, indebted to him, beyond the amount due upon the above-mentioned note, for moneys loaned in sums aggregating $5,108.45. This alleged indebtedness had not been claimed upon the accounting in the Surrogate's Court. Whether the amounts of the note and of these alleged loans constituted debts, which should be charged against his share, was the issue presented and that was decided in favor of the plaintiffs, at the Special Term. The Appellate Division affirmed that determination, by a divided court, and, upon this appeal, the one question presented relates to the sufficiency of the evidence to establish the fact of an indebtedness from the defendant *174 Hoagland to the testator beyond what was shown by his note for $10,000.
The testator was unmarried and childless, and had retired from active business. His living relatives were a brother and a number of nephews and nieces. He had accumulated a large estate, consisting in personalty, which he managed, himself; employing a man named Aitken to assist him, as secretary, or bookkeeper. Aitken survived the testator; but died before the trial of this action. Among the assets, the plaintiffs found Charles Hoagland's promissory note for $10,000, which is no longer in question, and they, also, found a number of paid checks running to his order, from a date subsequent to that of the note up to a short time before the testator's death, a period of nearly three years, indorsed by him and aggregating $5,108.45. The trial court found that these checks represented loans of money and was influenced, in making the finding, as is apparent from other findings, by certain entries made upon some of the stubs, from which checks had been detached, and by Charles Hoagland's condition of poverty and indebtedness during the time. The plaintiffs, upon whom the burden rested to establish the indebtedness claimed, relied upon the checks, with their indorsements; upon entries on the stubs of the first two of these checks, as indicating that they were loans, and upon the presumption that the checks following the two first were likewise loans, having regard to Charles Hoagland's existing indebtedness and to his lack of means. They invoke the rule that the law, in such a case, does not presume a gift and argue that as the circumstances plainly negative the idea of any indebtedness on the testator's part, at the time, the checks could only have represented loans of money. The presumption that they were such, the plaintiffs endeavored to fortify by evidence, received over objection and exception, of entries upon check stubs, at dates preceding the note for $10,000, which contained the name of Charles Hoagland, with a *175 date and a sum in figures. The amounts in these entries aggregated $9,900, and it is claimed that they proved the delivery of corresponding checks for loans, which "culminated" in the giving of the note for $10,000. The checks corresponding to these stubs were not found and the entries, themselves, were not in the handwriting of the testator, but in that of Aitken, the deceased secretary. The evidence in the case is meagre and casts no light upon the transactions between the testator and his nephew, Charles, other than may be received from circumstances. These were, as we have seen, Charles' note, the subsequent checks, his impecunious and needy condition, and some notations on check stubs made by a third person.
Considering the evidence relating to the issuance of the checks, which are relied upon as constituting the loans of money, we find that, after proving their indorsement by Charles Hoagland and their payment, entries upon the stubs of two of the checks were read in evidence. The entry relating to the first of the checks, drawn after Charles had given his note to the testator, was "April 12, 1901. Charles F. Hoagland act. to be paid $100 per week, $1,000." The second of the entries reads: "February 20, 1902. George Leask Co. for loan to give to Chas. F. Hoagland, $500." These entries were in Aitken's handwriting and their admissibility is claimed as an exception to the rule excluding hearsay evidence, because made in the course of an official employment by one having no interest to misstate the facts and who has since deceased. (Livingston v. Arnoux,
The entry on the stub of the first check for $1,000 to "Charles Hoagland act. to be paid $100 per week," would import an obligation for repayment; but the statement is purely hearsay, in that respect, and was not one required in performing the clerical duty of noting the data of the check to be drawn; nor is there any evidence showing, or permitting the inference, that the statement was within the personal knowledge of Aitken. The entry on the stub of the other check for $500, to George Leask Co. "for loan to give to Charles F. Hoagland" *177
is open to the same legal criticism. But, furthermore, as to this statement, is it absolutely clear that the words "to give" did not mean a gift and that the loan was to the testator, for his temporary convenience, perhaps? At any rate, it is not beyond speculation. Why should these entries be held to color as loans the other payments by the checks making up the indebtedness claimed of $5,108.45, as to which there were no notations? The presumption of their being transactions of loans to Charles seems to have no sufficient basis in the mere circumstances that he had been a borrower and that he had little if any means of his own. In Nay v. Curley, (
In the case of Stimson v. Vroman, (
The plaintiffs, to maintain their claim and to, still further, fortify the presumption of loans by the testator, offered in evidence certain check stubs in the testator's check book, bearing dates antecedent to the date of the defendant's note for $10,000, and having the name of Charles F. Hoagland, with figures representing sums of *180 money. They could not produce any checks corresponding to these stubs. They were admitted in evidence, over objection and exception, and it is contended that they had the same probative force as if the checks had been produced and showed payments thereby, which "culminated in the note." As matter of fact, the figures in the stub entries aggregated but $9,900. We think that the admission of these check stubs was error. The entries were shown to have been in the handwriting of the deceased secretary, Aitken, and, aside from that one fact, there is no evidence, explaining, or bearing upon, them. As it has been, heretofore, observed, Aitken, though acting as secretary and bookkeeper for the testator, was not shown to have sustained to him any other than the formal relation. The entries were incompetent to prove any transaction, which they purported to represent. They do not prove, nor tend to prove, that the checks were ever signed by the testator, or, if signed, that they were delivered by him to Charles F. Hoagland, or, if delivered, that they were paid; all essential facts to be shown upon such an issue. The evidence was introduced by the plaintiffs to show that, after a number of checks had been given, the testator took from Charles his note for the repayment of their aggregate and that they, therefore, represented loans. They did not quite aggregate the amount of the note; but the contention is that they approximated the amount and were resumed, or merged, in the note. From this, as a "course of dealing established," it is argued that color was given to the issuance of the checks in question, subsequent to the note, and strengthened the presumption that they were loans, continued to be made to the testator's needy nephew. We think that the evidence was quite incompetent as furnishing a basis for any such presumption. Any inference therefrom would have to rest upon an assumption that checks had been issued, received by the payee and paid, and had been loans to him. *181
We think that inadmissible evidence has been allowed in aid of the plaintiffs' case. For these reasons the judgment should be reversed and a new trial ordered; with costs to abide the event.
CULLEN, Ch. J., VANN, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ., concur.
Judgment reversed, etc.