62 N.J.L. 432 | N.J. | 1898
The opinion of the court was delivered by
The plaintiff in error, who was the defendant below, excepted to the admission of certain evidence and to the refusal of the trial judge to grant a nonsuit and has assigned error thereon. The assignments of error for refusal to .nonsuit will first be examined. The allegation is that in
The declaration alleges that Christine Myers, the sole devisee under -the last will and testament of George Myers, deceased, was summoned to answer the plaintiffs; complains, in the form of the common counts, that said George Myers in his lifetime was indebted to the plaintiffs, and concludes with this averment, “yet the said George Myers in his lifetime and the said defendant, his sole devisee under his last-will and testament as aforesaid, since the death of the said George Myers, have not nor have either of them as yet paid the several sums of money or any part thereof to the said plaintiffs, but the said George Myers in his lifetime and the said defendant have hitherto wholly refused, and the said defendant still refuses so to do, although she is the sole devisee under the last will and testament of George Myers, deceased, as aforesaid, and has sufficient estate of the said George Myers, deceased, as his sole devisee, to1 pay the said sum of money herein alleged to be due the plaintiffs after the payment of his other debts,” &c. It is well to notice that this allegation does not conform to precedent. The plaintiff, in his declaration, though he need not specify the lands descended, should aver distinctly that the defendant is devisee of lands of the deceased. 5 Went. Pl. 374. This is not plainly asserted in the language above quoted. It seems, however, to be naturally implied. The declaration, though informal in this particular, is not substantially defective. To this declaration the defendant pleaded the general issue, alleging that “ neither she nor the said George Myers, now deceased, in his lifetime, did promise and undertake,” &c. The plaintiffs offered in evidence, under objection, the record of the will of George Myers, from which it appeared that he devised all his real estate to his wife, Christine Myers. There was no proof as to the amount or particulars of the estate. The defendant offered no evidence on her behalf. The jury found a verdict
One of the grounds assigned in support of the motion to nonsuit is that the plaintiffs adduced no evidence to prove that the defendant ever received any of the estate of the testator, George Myers, as his devisee. In other words, the proposition is that it was requisite for the plaintiffs, in order to charge the defendant to prove that she took land by devise, and to specify the land. We think that the law is otherwise, and that upon this branch of the case the burden, both of pleading and of proof, rested not on the plaintiffs, but on the defendant, who by not denying assets admitted them. There was, therefore, no such defect in the plaintiffs’ proof as the objection assumes, and the trial judge did not err in refusing to nonsuit for the cause so assigned. The conclusions thus briefly stated result from the following considerations: At common law an action lay against heirs on a specialty of the ancestor expressly binding his heirs. An heir might, by proper pleading, restrict his liability to the lands that had descended to him and that he had not aliened before the commencement of the action. In such an action, it was for the defendant, if he wished to limit his liability, to make disclosure, by his plea, as to lands descended. He might either admit or deny assets. If he denied assets, which he did by pleading Hen per descent, and if he supported his plea by proof, the action failed. If he admitted assets, which he did by specifying in his plea what lands he had inherited, and if the plaintiff proved his case, a special judgment went against the heir, to be made only out of lands descended, which had not been bona fide aliened before the commencement of the action. If he pleaded falsely in respect to assets, as, for example, that he had inherited Black Acre when in fact he had inherited Black Acre and White Acre, the judgment was a general one, as if upon the debt of the heir. This was the rule, not to punish the defendant for not telling the truth, but because, as the record did not truly specify the lands
In this condition of the law parliament passed the statute known as 3 W. & M., c. 14, entitled “An act for the relief of creditors against fraudulent devises.” The chief object of this enactment, and the only one that need now be considered, was to put devisees in the same category with heirs. The third section enacts, among other things, that the devisee “shall be liable and chargeable for a false plea by him or her pleaded in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended.” The New Jersey statute, entitled “An act for the relief of creditors against heirs and devisees,” passed March 7th, 1797 (Pat. L., p. 243; Gen. Stat., p. 1679), followed the general lines of the English act, but enlarged the right of action. The first section enacts, among other things, that a devisee shall be liable, in the same manner as any heir should have been, for not confessing the lands to him descended. This statutory language recognized and made applicable to devisees the rule that a defendant confesses assets if, by his plea, he neither admits nor denies
The other ground for nonsuit is thus stated in the fifth assignment of error: “Because it fully appears that the money was due to the legal representatives of Charles Theis and not to the plaintiffs, and further because these plaintiffs are not shown to have loaned the money jointly or otherwise.” In order that this may be intelligible it is necessary to make a further statement of fact. This is an action to recover money lent. The testimony indicates that the plaintiffs carried on business in Philadelphia under the name of Weger Brothers; that on April 13th, 1889, George Myers, the devisor of the defendant, as the result of a financial transaction at the office of Weger Brothers, in which Charles T. Weger, one of the plaintiffs, participated, obtained a loan of $500; that the payment was made by a check to the order of George Myers, on which he got the money; that the loan was recorded in the books of Weger Brothers, and that it was continued and that interest was paid on it for several years. Joseph B. Wischman, a witness for the plaintiffs, testified that he is bookkeeper for Weger Brothers and was so employed in 1889, and that he drew up the check in question. Charles T. Weger signed it. The bill of exceptions does not contain a copy of the check. The following questions and answers occur in the testimony of Mr. Wischman :
“Q. Why did you give George Myers this check?”
“A. Why, he asked for a loan of $500 and Mr. Weger authorized me to make out the check.
“A. Yes, sir; at that time as Charles Theis’ executor.”
In the cross-examination of Charles T. Weger the following questions and answers occur :
“Q. This check is signed by you as executor of Charles Theis ?
“A. He was my grandfather.
“Q. Was this money loaned out of the estate of your grandfather to George Myers ?
“A. Simply my brother and I; my brother was not twenty-one; that is all.
“Q. Well, it was still in the estate ?
“A. Still in the estate; yes, sir.”
From this testimony it appears that the plaintiffs assumed to be the executors of the estate of Charles Theis and that the check in question was signed by one of the plaintiffs, in their name or on their behalf, in that capacity. The fifth assignment of error above quoted consists of these two propositions — that there was no evidence from which the jury could conclude that the plaintiffs had made the loan sued on, and that if there was a loan the right to recover it belonged to the plaintiffs as executors of Charles Theis and not as individuals. The first proposition is not well founded. There was evidence to go to the jury tending to show that the plaintiffs made the loan. The idea that underlies the second proposition is that there is an incongruity between the individual right of action asserted by the declaration and the proof of a payment made by the plaintiffs in a representative character. It is supposed that such proof does not support the assertion of such a right. There are two answers to this. In the first place, the evidence on behalf of the plaintiffs is consistent with the idea that their representative character entered into the payment but not into the borrowing and lending contract, which was independent of the affairs of the Theis estate. In this view the objection relates to an immaterial matter. It is no concern of a borrower where the lender gets the money that he pays. In the second place, as
The law is thus compactly stated by Mr. Justice Buller, in Gallant v. Bouteflower, 3 Doug. 34, 36: “ Where the cause of action accrues in the lifetime of the testator, the executor must sue ás such ; where it accrues after his death, the executor may sue as such or not. Where the sum recovered will be assets, I think he may always declare as executor.” To the same effect is Wms. Ex. 878. In Norcross v. Boulton, 1 Harr. 310, 312, the rule is thus stated by Chief Justice Hornblower : “ When an executor prosecutes an action, which he has in the right of his testator — that is, an action which accrued to his testator in his lifetime, and is transferred to him as executor, or which is founded on or grows out of a contract made with the testator, or an injury done to him in his lifetime — and fails in such action, he shall not pay costs. Burt where an executor brings trover, founded, as in this ease, upon his own possession, or any other action which has accrued to him upon his own transactions as executor, or for an injury done to the property of the testator since his death, he is presumed to know the facts of his case and the justice of his claim ; and, in such case, he m'ay sue in his own name, and therefore shall pay costs if he fails.” In Stewart v. Richey, 2 Harr. 164, the plaintiff brought suit in his own name on an arbitration bond given to him “as administrator of John Eichey.” A ground of demurrer was that the plaintiff should have sued as administrator. Chief Justice Hornblower says: “The action is rightly brought by the plaintiff in his own name. He might, indeed, have called himself ‘ Thomas G. Stewart, administrator of,’ &c., for the purpose of describing himself, but such description was unnecessary. If he had sued as administrator, it would have been wrong; or the addition of those words would have been surplusage, and he would have been liable to costs, notwithstanding he had thought proper to sue in his representative character.” A later sentence in the opinion says that where an action
The defendant further assigned for error the admission of the plaintiff’s books, upon the ground that a loan of money cannot be so proved. This is the rule. Inslee v. Prall, 1 Dutcher 665. It does not appear, however, that any books were admitted. One book only, the cash-book, was produced. So far as the record shows it was not received in evidence. The trial judge distinctly stated that it was available only as a memorandum to be used by Mr. Wisclnnan, who made the entries, to refresh his memory. He was allowed to read from the book the following entry: “April 13, 1889, George Myers, Atlantic City, cash for note at one year, five per cent.,” and to say that the book contained a record of the successive annual renewals of the note down to April 7th, 1894, when it amounted to $525, of which $25 was one year’s interest at five per cent. It does not appear that the witness was testifying
The defendant further assigned for error the admission of an unendorsed note, reading as follows:
“$525. Philadelphia, April 7th, 1894.
“One-year after date I promised to pay to the order on myself, five hundred and twenty-five dollars, at the Consolidated National Bank, without defalcation for value received.
“ (Signed) George Myers.”
It is important to remember that this note was not the foundation of the action. The plaintiffs did not sue under section 30 of the Practice act, declaring on the money counts
The judgment is affirmed.
For affirmance — The Chancellor, Chief Justice, Collins, Depue, Dixon, Garrison, Lippincott, Van Syckel, Adams, Bogert, Hendrickson, Nixon, Vre-DENBURGH. 13.
For reversal — None.