Marston v. Marston

21 N.H. 491 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

The evidence shows, that Samuel P. Mars-ton, being the father of an illegitimate child by his niece, made a verbal agreement with his brother Nathaniel, that he would appropiate the amount due on certain notes, which he held against one William Weeks for about three thousand dollars, for the support and bringing up of the child. The notes were accordingly deposited with the appellant, and he expended the sum of six hundred dollars for the support of the child. The child died on the tenth day of November, 1849.

The appellant’s case is, that after the child should have been supported and brought up, if any part of the fund remained, it was to go to the child; that during the life of the child, the appellant held the fund upon a specific trust, which, at the time of the rendition of his account had not been fulfilled, and that the trust was not revoked by the will or subsequent contract of the testator.

There is evidence in the case tending to prove, that after the birth of the child, Samuel the father, said to Nathaniel, that he would give to the child the Weeks notes for the purpose of bringing it up, and if any thing was left it was to go to the child. He also said, that when he returned from Cuba he should take the child himself and take care of it and bring it up, in which case Nathaniel supposed he would take back the notes, though he said nothing in particular as to that, but said if he did not return, the Weeks notes would be in David’s hands, and would go to the child. The Weeks notes were not indorsed by Samuel, and there was no writing giving them to the child or setting them apart for its benefit.

The above facts are stated by Nathaniel Marston and his wife. Now, without inquiring into the questions raised by the admission of Judge Sullivan to testify under the circumstances detailed in the case, and to the contradictions of their testimony stated in his minutes, there is evidence that in the month of July, 1843, othe appellant told Mrs. Leach that no pro vision, was made for the child in the will, and that he would pay for its support from his own good will, and that he afterwards told her. there was no-property left for the child, and no provision made for it, and that he paid for its support from his own good will. What may have been his motive for making these' statements, it is unnecessary to inquire. Within three or four weeks after the birth of this illegitimate child he married its mother, without any previous declaration of his intentions to her parents; Perhaps he supposed that by the marriage the fund in question would become his own property, and perhaps his object was to make the best bargain he could with Mrs. Leach for the child’s support. But whatever his purpose may have been, it can be doing him no injustice to weigh his own statements upon the matter of fact against the evidence of his own witnesses, and to consider them in connection with the story told by Mr. and Mrs. Nathaniel Marston. Tried, then, by this test, the evidence falls short of proving such a trust as the appellant alleges to exist; that is, that the fund, after deducting from it the expense of supporting the child, should become its property.

There are also other objections, appearing on the case, to the alleged trust. There is nothing, however, to show that Samuel Marston might at any time, at his pleasure have revoked the deposit he had made with the executor, and have countermanded his authority, although the case contains an intimation tending to show an agency merely on the part of the executor; for before he went to Cuba, he said that on his return he should take the child himself, and take care of it, and bring it up. But it does not appear how long the “bringing up” of the child was to com tinue; how much education it was to receive, if any beyond an ordinary school education, and at what time it was to be entitled to the principal of the fund. The evidence does not prove anything more than that the fund was deposited with the executor-for the supporting of the child, and that after it should have been brought up, the remainder of the fund, if any, should belong to the child. But at the age of seven or eight years, the child could not be said to have been brought up, in the sense in which those words were probably used by its father. There is nothing in the case which shows that this was intended as an unconditional gift to the child in consideration of the paternity of the donor, so that its heirs at law should benefit by it. Although the trust was unfulfilled at the time the appeal was taken, the death of the child in the subsequent year was a determination of it, and after that period the executor held the fund as a part of the general assets of the testator. We think, therefore, that so much of the decree as charges the executor with the amount due on the Weeks notes, should be affirmed.

No question of consideration arises in the case. The deceased did not make an executory contract for the support of the child. The transaction was a gift to the executor of property, to be held by him in trust, and so much of it as was necessary appropriated for the child’s support. The delivery was necessary, and without it the property would not have passed. Irons v. Smallpiece, 2 B. & A. 551; Cook v. Husted, 12 Johns. 188; Fink v. Cox, 18 Johns. 145. And from the same authorities it appears that a gift accompanied by delivery will pass the property. Bean v. Jones, 8 N. H. Rep. 149. In the case of Smith v. Smith, 7 C. & P. 401, it was held, that if a father make to a son under age an absolute gift of a chattel, and deliver it, he cannot afterwards' without the son’s consent, reclaim the gift. In the present case, as the ' property passed by the delivery, the gift cannot be" reclaimed by the subsequent execution of the will. ■

We think- that the judge of probate erred in disallowing the claim made by the executor for the sums paid by him for the-support of the child, and for his services in collecting and expending the money. ; The sums paid by him should be credited to him, and he should be allowed a reasonable sum for his services. The decree should be affirmed as to all the other matters specified' in the appeal, and the case is remitted to the probate court for further proceedings, according to the principles above stated.

Costs are to be taxed for the executor. Upon the. rendition of his account he claimed no interest in the fund except as a trustee. The questions in the case were sufficiently important' to the parties interested, to authorize this appeal, and in the position he occupied it would be inequitable to charge him personally with the costs.