30 N.J. Eq. 265 | N.J. Super. Ct. App. Div. | 1878
The question argued on the hearing was, whether the respondent, Henry H. Yanderbeck, is chargeable with the amount of a certain promissory note and interest, given by him* to the testator, his father, in or about 1870. The appellant alleges that the amount of the note was $1,750-that it was given to the testator for so much money lent by
It is clear, from the evidence, that the note in question was given up by the testator to the respondent, to be can-celled, about two years before the death of the former. It is also clear that the note was for the sum of $1,550, and not $1,750, as the appellant insists. It was given for money advanced by the testator to the respondent for part of the purchase-money of a small tract of land which the latter purchased in May, 1870, for a place of residence, from Samuel P. Bush, at the suggestion of the testator, who promised to aid him in paying for it. It appears that the respondent then contemplated removing, with his family, to Paterson, to which the testator was opposed, and urged him to buy that property. Of the purchase-money ($2,500), the respondent paid $1,000 of his own funds, and the rest he obtained from the testator, who, a few days afterwards, requested him to give him his note for the money, which was don.e. The respondent, on giving the note, expressed to the testator his dissatisfaction at being required to do so, saying, among other things, that he had purchased the
The respondent’s wife and his mother corroborate him in these statements. His mother, who was called as a witness for the appellant, testifies that, when the testator handed the note to the respondent, she said to him: “Now, do you know what you are doing?” that he replied, “Yes, I know what I am doing;” and that she then said, “Now, don’t you be too fast.” She says that she might have said, “You must know what you are doing, for the rest will very likely find fault;” and she adds that he then said, in answer to her, that “ he had a right to do with his own as he had a mind to.” The respondent produces the strip of paper cut by him from the note. It corroborates him in his statement as to the amount. His mother, also, it may be remarked, corroborates him on that head. The respondent and his wife testify that the deeds for his property, which were in the testator’s possession at the time of his death, were left with him merely for safe-keeping.
The evidence on which the appellant relies to establish an equitable mortgage, by deposit of the respondent’s title-deeds, falls far short of the mark. Jacob IT. Vanderbeck, indeed, testifies that when he asked the respondent what those deeds were there (in the testator’s box, among the papers,) for, the respondent replied that he left them with his father for the note; but he afterwards says that what the
Albert Gr. Zabriskie testifies to a statement voluntarily made to him, by the respondent, after the testator’s death, in a casual conversation in the street, in reference to the controversy which existed between him and his brothers, in reference to the note. He says that he asked no questions of the respondent, and paid “ no very particular attention” to what was said, any more than he would in any conversation which did not concern him, or in which he had no personal interest. The conversation took place about two years before the witness gave his testimony. It is not difficult to conclude, from his statement, that what was then said to him was, probably, strictly in accordance with the testimony of the respondent, and that any apparent variations are attributable to the fact that the witness had no interest in the subject of the conversation, paid no particular attention to it, and was not even seeking information on the subject of this family dispute. Under the circumstances, he could not be expected, after the lapse of so long a period, to remember even the outlines of the statement with any accuracy. The salient points of the statement, as it is remembered by the witness, appear to have been the giving up of the note by the testator to the respondent, the leaving of the deed of the Bush property with the testator, and the fact that the deed was still there when the inventory’was made. He says, it may be remarked, that the respondent said that he and his father settled up those matters. The evidence, on the part of the appellant, of the statements of the testator, made by him in the absence of the respondent, and after the note had been given up, in reference to the note, and his intention to alter his will, so as to equalize the
Jacob I!. Vanderbeck testifies that in February, 1875, the testator told him that he had loaned the note to the respondent ; that the respondent had only paid him interest on it once or twice; that he would give the respondent the note, and make it right with the other children. But it appears, clearly, that the note had been given up a year before that time.
It is unnecessary to pursue the examination of the testimony further. The evidence is that the testator, a year or two before his death, for reasons satisfactory to him, gave up to the respondent, as he of course had a right to do, the note of $1,550 to be cancelled, forgiving the debt. The delivery of a note by the holder to the maker, with intent thereby to discharge the debt, discharges the debt. 3 Eq. Ca. Abr. 618: Wentz v. Dehaven, 1 Serg. & R,. 317. In re Campbell’s estate, 7 Pa. St. 100. The testator had, in the will's he had made previously to that time, given to the respondent a greater share of his estate than he had given to his other children., He considered himself under special obligations to him for attentions, and he was especially indebted to him for the interest he had taken in his affairs in connection with the sale of his farm, and which had proved of great pecuniary advantage to him; for, by follow
The proceedings in this case were taken, by petition, for the recovery of the respondent’s share of his father’s estate under the will. The appellant, by his answer to the petition, admits that he has had sole charge of the personal estate which was inventoried, and that the personal estate of the testator is capable of ready division or distribution, according to the directions and provisions of the will. It does not appear, by the record, whether the appellant has settled his final account or not, but no objection to a decree was made on that score before the orphans court or in this court. The orphans court decreed that it be referred to the surrogate to ascertain the sum due the petitioner, declaring that his share was one-fourth of the estate, and charging him with two notes of $250 and $50, respectively, before referred to, his liability whereon he has always recognized. No objection was made, either in the answer or on the hearing, to the regularity of the proceedings.
The decree will be affirmed, with costs.