87 A.D. 13 | N.Y. App. Div. | 1903
Lead Opinion
The will of Robert M. Shoemaker, deceased, created a trust fund of about $200,000 for the benefit of his daughter, Mary Steiner Putnam, during her life, the remainder, upon his death, to go to her children, and appointed her husband, John E. Putnam, as trustee thereof.
Shortly after the death of the testator, the trustee received in securities of various character the full amount of the trust, which he administered on a trust basis for some" years, A question arose in the mind of the trustee as to the validity of the trust, and he finally interpreted the language of the will as giving the entire fund absolutely to his wife, Mary Steiner Putnam, and in furtherance of that interpretation began the sale of the securities which he had received under the trust, and a reinvestment- of some portion of the proceeds in the individual name of his wife, and the actual transfer to her individually of some of the property.
The trustee died in 1899, and his widow died in the following year, leaving a will by which she attempted to devise and bequeath to one of her children, to the exclusion of the other two, all of the property corning through the will of her father as well as that owned by her individually.
Action was brought by this plaintiff, one of the children thus excluded, which resulted in a judgment establishing the trust and directing that the representative of the trustee and the representative of the widow account for the trust fund ; and that accounting has resulted in the judgment now appealed from, charging the rep
Mary Steiner Putnam received from her father during his lifetime-and under his will a considerable amount of money which was concededly not affected by the trust. For several years a bank account was kept in the name of John It. Putnam and Mary S. Putnam, upon which either could draw; and also for several years there had been rented in the name of John II. Putnam and Mary S. Putnam, to which each had access, a safety deposit box with the Lincoln Safe Deposit Company of New York. On the death of Mary Steiner Putnam there was found in this safety deposit box original securities belonging to the trust fund, amounting at par value to about $92,000, and various shares of stock purchased and standing in the name of Mary Steiner Putnam.
Shortly before his death the trustee caused to be prepared a statement of his position with respect to the trust, included in which was a statement of the $92,000 worth of securities on hand, and a statement of the specific securities originally a part of the' trust fund which he had disposed of, amounting to about $111,000, and then followed a list of stocks standing, in the name of Mary Steiner Putnam, headed,. “ Property purchased or held in place of that disposed of mentioned above,” amounting by estimated value to about $107,000, included in which was a note of $36,000 and over, made by his wife to him as trustee, and cash on hand of $6,000. This document was indorsed by the trustee in his own handwriting, “In re Will of R. M. Shoemaker, deceased, Inventory, etc.,” and is known in the case as Exhibit No. 27. This paper was offered in evidence by the plaintiff, not only against the administrator gf the trustee, but against the executor of MaryfSteiner Putnam. Both objected to its admission, the executor of .Mary Steiner Putnam particularly, that it was hearsay and incompetent as against her -or her estate. To its reception exception was duly taken.. There was no evidence that Mary Steiner Putnam ever saw the paper, or knew of its contents, or acquiesced hi the statement to the effect that the securities in the Lincoln safety deposit box,
The ruling is strenuously attempted to be sustained by counsel for the respondents, and Higham v. Ridgway (10 East, 109) is cited as an authority upholding its correctness. That case permitted the introduction in evidence of books of a midwife showing the date of delivery of a child. Pedigree is one of the exceptions to the admission of hearsay evidence, arising from the necessity of the
The trustee was not a public officer, and, therefore, his entries and declarations do not come within the rule permitting entries of deceased public officials to be read in evidence.
But it is said that there is sufficient evidence outside the exhibit to sustain the finding that the stocks standing in. the name of Mary Steiner Putnam actually belonged to the trust fund instead of being hers individually, and that the error was harmless.
We cannot concur in this view. The proofs contained in the exhibit were of such vital character, if taken against her, that prm sumably they affected the mind of the court in arriving at the com elusion which it did. The ends of justice will be much bettersubserved by a new trial from which the objectionable evidence shall be eliminated Our conclusion being that because of this error a new trial must be had as against the estate of Mary Steiner Putnam, we refrain from embarrassing the situation by comment upon the evidence, and do not consider the other points raised by the appellants. A new trial may develop a much different state of facts than no.w appears.
The representative of the estate of John R. Putnam, deceased, urges certain exceptions taken particularly in his own behalf. Michael M. Shoemaker, the acting executor of the will of Robert. M. Shoemaker, deceased, was not incompetent under section. 829 of the Code of Civil Procedure to testify to the securities and moneys, turned over :by him from that estate to the trustee, John R. Putnam.. He was not in any legal sense interested in the event of the action, nor was he a party. A witness is not disqualified unless he -will gain or lose by the event of the action, either directly as in money or relief from liability, or indirectly because the record could be used as evidence for'Or against him. (Eisenlord v. Clum, 126 N. Y. 552, 556; Albany County Savings Bank v. McCarty, 149 id. 71, 84.) Not being a party lie could not-gain or lose by the judgment, and his relations to the judgment are not such that the record could be used as evidence for or against him in any action
The case of Redfield v. Redfield (110 N. Y. 671), relied upon by appellant, we do not deem controlling. The facts in that case were quite different from those in the present one; but if the principle be said to be the same, the Court of Appeals has had opportunity in many cases decided by it since that decision to affirm its doctrine, but instead has directly repudiated it and has studiously refrained from citing it on the proposition here involved.
The Augusta factory stock and the Sibley Company stock were embraced in the inventory of the trustee as part of the property of the estate, and were, therefore, properly chargeable against him. The beneficiaries of the trust were not parties to-the Georgia litigation, and, therefore, they were not bound by the proceedings taken in the Georgia court with reference to the transfer of this stock. If by reason of the trustee being a party to that litigation, it be said that they were bound, yet the trustee treated these stocks as belonging to the trust fund, and the referee very properly took the trustee’s interpretation of their ownership. The fact that there were twenty shares more of the factory stock than the trustee accounted for was shown by the testimony of Michael M. Shoemaker, and the referee was justified in finding that there were forty shares thus received instead of twenty.
The language of the trust did not relieve the trustee from liability for devastavit, and the referee properly found that the trustee was personally liable for the losses which were sustained. (King v. Talbot, 40 N. Y. 76.)
But the two estates are-so intertwined that it is impossible to affirm the judgment as to one and reverse it as to the other. If on the new trial to be ordered it shall transpire that Mary Steiner Put
■The judgment should be reversed and the referee discharged and a new trial granted, with costs to the appellants to abide the event.
All concurred, except Chester, J., dissenting; Chase, J., concurred in memorandum.
Concurrence Opinion
The statement of the trustee was not made contemporaneously with the acts therein mentioned. It was not, therefore, a part "of .the res gestae, and if does not in anyway relate to a matter of public interest. It is a private document, the admissions in which are competent evidence against the maker, but not, ordinarily, evidence against a stranger to it. ; .
At the time it was made there was no dispute about the amount that the trustee had received from the executors of the Shoe-maker estate. He had receipted therefor, but had transferred the legal title to the personal and real property so received by him. The trustee was in ill-health and ab(qut to depart from this country, to which it was doubtful whether he would ever return, and the> statement was made by him in explanation of acts on his part in disregard of the trust and essentially in his interest. f The statements relating to the securities that had been transferred or purchased and held in the name of his wife were not: incidental to the admissions of the trustee against his interest. Such statements constituted the material part of the paper, and the statements against the interests of the trustee' were incidental thereto. To allow such a statement as affirmative evidence against a person not a party theréto, and who had never seen or acquiesced therein,. would extend an exception to the admissibility of hearsay evidence beyond any case that has come to my notice, and would make a dangerous precedent.
Such a statement does not come within the rule stated in article 28
Judgment appealed from reversed, referee discharged and a' new hearing granted of the matters directed by the interlocutory judgment to be tried, with one bill of costs to appellants to abide event.
