25 Barb. 33 | N.Y. Sup. Ct. | 1857
When actions had names, this would have been known as an action of trover, brought to recover for a package of promissory notes, the value of which, as admitted upon the trial, was $>8000. The plaintiff claimed title to the notes through an executed gift, or donatio causa mortis, from George Bentley. The defendants, who are the adminis-, trators of the estate of said Bentley, claim to hold the notes as a part of the assets of the estate of said Bentley. Upon the trial of the cause the plaintiff proved that George Bentley, a bachelor, 84 years of age, on the 20th day of April, 1854, when upon his sick bed, and soon apprehending death, directed the plaintiff, who with his family lived in Bentley’s house, and with whom Bentley lived, and by whom he was taken care of, to call in Mr. Enos, to make an invoice of his notes; that this was done by Enos and the plaintiff, and they returned to the sick room where Bentley lay, and Smith, with the notes in his hands, went up to the bed-side of Bentley and asked him what he should do with the notes; that Bentley replied, “ take them and do what you are a mind to with them.” Smith then said to Bentley, “ this is all except a small mortgage, and that will be of no use to any one unless it is assigned "overthat Bentley said, “ yes, let that go.” Smith took the notes and put them in his own bureau. Four days after this, and on the 24th of April, 1854, Bentley died, and the notes were proved to be in Smithes possession after Bentley’s death. The nearest relatives of Bentley are brothers and sisters.
As the defendants claim to hold these notes in right of the intestate George Bentley, and as the legal representatives of the estate, the cases of Ivatt v. Finch, (1 Taunt. 144,) and Smith v. Smith, (3 Bing. N. C. 29,) are authorities in point, to show that the declarations of George Bentley, tending to prove that he had given these notes to the plaintiff, are legitimate evidence against the defendants. The evidence of the
These opposite constructions placed upon the language employed by Mr. Bentley at the time he delivered over those notes to Smith, show most conclusively that there is such ambiguity in the language employed and relied upon to sustain this donatio causa mortis as justifies the admission of parol evidence to aid in its interpretation. (19 Barb. 631. 16 Mass. Rep. 108. 22 Wend. 148. 16 Yes. 481.)
These declarations of George Bentley, as proved by the various witnesses upon the trial, expressing his intention to give them to the plaintiff, are admissible as primary evidence in the case, to establish the donation itself. When upon his death bed, and soon anticipating death, he passes over these notes to Smith, in presence of Enos, for whom he had sent. This evidence of the repeated declarations of George Bentley, that he intended to give these notes to Smith at his death, was properly received, as it reflected upon the tradition, or in other words, furnished evidence of the quo animo with which he delivered over the notes to Smith. They are primary evidence to prove the gift. (Cowen & Hill’s Notes, 590, note 452. 1 Nott & McCord, 237. 19 Barb. 631. 16 Mass. R. 108.) If a man were to say to various persons, for several years preceding his death, that he intended to give a certain article to A. at his death, and then upon his death bed, apprehending death, were to call A. to his bed side and deliver over the article to him, without saying any thing, I suppose it would be a question for a jury, and where they might' even infer a gift from the act of tradition and the previously declared intention to give.
The fact that Smith was a stranger in blood to George Bentley, and that Bentley had relatives living, upon whom, for many years, he had been in the habit of bestowing all the income of
There was no error committed on the trial, in admitting the conversation between Smith and his counsel Mitchell, as proved by the witness Barnes. Mr. Enos had testified that when the defendants demanded the notes of the plaintiff, he requested to have it put off one day to see his counsel, saying that he did not wish to prejudice his rights, and the defendants refused. Now the defendants, on the cross-examination of this witness, proved by him that the protest was in the handwriting of Mr. Mitchell, one of the plaintiff’s counsel. This- evidence was doubtless
Gray, Mason and Balcom, Justices.]