56 N.J. Eq. 280 | New York Court of Chancery | 1897
This suit is brought by the administrator of Catherine Craig against the executor of John Young, under the following circumstances : Catherine Craig died in 1893, at the age of eighty-
The bill charges a misappropriation of these moneys by Young to his own use, and- prays an account and a decree for payment. It is admitted that with the exception of two items, one of $76.73 to take up a protested check, and one of $100 given to Morgan Turton, the moneys were used by Young for his own purposes. The defendant’s insistment is that Young had a right to use them because they were given to him by Mrs. Craig. The proof of the alleged gift rests on Young’s declarations alone. Mrs. Craig had made two wills, one in 1885 and the other in 1890. The first of these wills gave her entire estate, and the second her entire estate except her wardrobe, to Young. Three, or four days before her death she made a third will in favor of another nephew, Morgan Turton, and his wife, with whom she was then living. The validity of the third will was contested by Young in the orphans court of Union county. He was called as a witness and cross-examined in reference to the account in the savings bank. He explicitly admitted that he had, with the exceptions I have mentioned, appropriated the money to his own use; he justified the appropriation by declaring that the money had been given to him. The contention of defendant’s counsel was that as complainant relied upon Young’s evidence for proof of misappropriation, he was bound to accept all of it as true and that on the whole evidence it appeared that Young had taken
“Q. Although you entered your account in that hank in her name, you still say that the money was given to you out and out and that you did not hold it as trustee, do you ?
“A. Yes, I considered that money was a gift to me.
“Q. Did you deposit anything in this account except the presents of money from Mrs. Craig ?
“A. Money and checks, that is all.
“Q. Well, they were all presents from her ?
“A. Yes, sir.”
It is certainly strange that if Young regarded this money as his own, he should have opened the account as a trustee account and continued it so for nine years. It is strange, too, that he should have opened it in this way, when he had in the same bank, as he admits, another account of his own. It is still stranger that he should, as he says he did, have opened it in this form after consultation with counsel. The fourth entry in the bank passbook is an item of $200, under date of April 8th, 1884. On April 6th, 1884, there appears in a little diary belonging to Mrs. Craig the following receipt, which Young admits he gave her: “Apr. 6, 1884. Rec’d of Mrs. Adam Craig, to deposit in savings bank, $200. John A. Young.” The $200 credited in the pass-book, Young admits to be the same as that which he receipted for. The language of this receipt is not the language
“Q. Wliat did you mean when you said you were her banker?
“A. Well, I meant that she gave me money and I had a separate account . of it in the bank, knowing how much she wanted to give me.
* * x * -x- -x- * x x -x-
“Q. Why did you want to know how much she gave you ?
‘A. Merely as a record, that is all.
“Q. What did you want of a record ?
‘A. Well, I can’t tell exactly why I wanted a record — curiosity.”
There is another still more significant fact. On April 9th, 1887, he drew out of this account $1,000. On the same day he executed to his aunt a mortgage for that amount. The mortgage was recorded, and subsequently, on a certificate of his aunt authorizing its cancellation, canceled. This action on his part seems to me to be utterly irreconcilable with Young’s statement that the money in the bank was his own, or that he then so regarded it. I have no doubt, on the whole evidence, that the account itself correctly states- his position. As to this fund, he was trustee for Catherine Craig, and not absolute owner. In foro oonsdentice, he no doubt sought to justify his conduct in taking it on the ground that his aunt’s income was ample for her support, and that he was her sole legatee.
On the part of the defendant,'Maggie Cheever was called as a witness to prove the gift. But her testimony, taken altogether, strongly indicates that Mrs. Craig’s intention was not to make a gift of this money inter vivos, but to give it to Young by her will. According to this witness, Mrs. Craig, within a year before she died, appears to have thought that the money (except that which had been secured by mortgage) was in the bank. Yearly all of it had, in fact, been drawn out.
The remaining question relates to the $1,000 secured by mortgage. This money, as I have said, was drawn out on April 9th, 1887. The mortgage given to secure it was dated on that day, and was acknowledged on the 14th and recorded on the 15th of the same month. On it is endorsed the following: “ Dunellen,
The complainant stands in this position : If Young’s evidence on this subject (in the will case) is altogether excluded, then the receipt on the mortgage is prima fade evidence of payment, and there is no evidence to the contrary. If the evidence is received, then it appears that the receipt was signed in furtherance of Mrs. Craig’s intent to make him a gift of the security. In either alternative, the defendant, as Young’s executor, is discharged from liability to account for the money.