72 N.Y.S. 752 | N.Y. App. Div. | 1901
In February, 1895, Margaret Hunter, whose maiden name was Margaret Brown, died intestate. For many years prior to and at the time of her death she resided in the same house in Newark, in the State of New Jersey. After her death there were found among her papers several bank books representing deposits in various savings banks, most of them in the city of New York. These books represented accounts kept in the names of various persons,— “ Margaret Brown ; Margaret Hunter; Margaret Hunter in trust for son Thomas; Margaret Hunter in trust for son John ; Margaret Hunter in trust for Thomas Hunter; Margaret Brown for niece Margaret Hunter; Margaret Brown for Margaret Hunter; Margaret Brown in trust for John Smith; Margaret Brown in trust for Margaret Smith.” There were three books representing accounts in the defendant bank; one in the name of Margaret Brown, one in the name of Margaret Hunter in trust for son Thomas, and a third in the name of Margaret Hunter in trust for son John. After her death the plaintiff was appointed ancillary administrator, and as such he demanded from the defendant the moneys represented by the three books issued by it. The defendant denied his right to the
Subsequent to the commencement of the action the defendant paid to the plaintiff the amount called for by the book issued in the name of Margaret Brown, but refused to pay the amounts called for by the other two books; and the subject-matter of this controversy relates to the plaintiff’s right to recover such sums. The accounts represented by these two books were opened by Margaret Hunter personally. She deposited with the defendant all of the moneys represented or called for by them. The first account, “ Margaret Hunter in trust for son Thomas,” was opened and the book issued on the 3d of January, 1882. According to a statement contained in the book, she then declared that the son Thomas was nine years of age. The other one, “'Margaret Hunter in trust for son John,” was opened and the book issued to her on the 22d of August, 1883, and she then declared, according to a statement contained in the book, that John was eleven years of age.
If at the time Margaret Hunter deposited with the defendant the moneys represented by the two books in question she had no sons John or Thomas, then there can be no doubt but that the plaintiff is entitled, as her representative, to recover from the defendant the amounts called for by them, inasmuch as in that event the trusts attempted to be created were exclusively for her own benefit. (Cunningham v. Davenport, 147 N. Y. 43; Haux v. Dry Dock Savings Inst., 2 App. Div. 165 ; S. C., 154 N. Y. 736 ; Matter of Mueller, 15 App. Div. 67.) If, however, she did not have sons at that time, but subsequently had sons by those names,- and such sons were living at the time of her death, a valid trust was created for the benefit of each, and the plaintiff is not entitled to recover. The question really presented, therefore, was whether she did, at the time the deposits were made and at the time of her death, have a son Thomas and a son John ; and this was the theory upon which the action was tried and submitted to the jury.
The evidence adduced upon the trial tended to establish that she had lived in the same house in Newark for nearly or quite twenty-eight years, and that at the time of her death she was between seventy-five and eighty years old. Therefore, if she had sons Thomas and John, and their ages were correctly stated in the books
But in addition to the probability that a woman of the age of Margaret Hunter at the time the sons Thomas and John are alleged to have been born would not have children, we have not only the evidence of her friends and neighbors that they had never seen any children of hers, and had no knowledge that she had ever had any, but also the further fact that she had frequently declared to such friends and neighbors that she had never had any children. It is said that her declarations thus made are inadmissible; that this raises the principal question upon which it is urged the judgment should be reversed.
These declarations, it is said, were hearsay evidence. But hearsay evidence is admissible for the purpose of establishing pedigree. (1 Greenl. Ev. §§ 103,104; Chase’s Steph. Dig. Ev. art. 31; People v. Fulton Fire Ins. Co., 25 Wend. 209; Eisenlord v. Clum, 126
If we are correct in this conclusion, then it follows that the judgment appealed from must be affirmed, because there was sufficient evidence to justify the jury in finding that Margaret Hunter never had sons by the names of Thomas or John, and that when she opened the accounts in question with the defendant bank, such accounts were opened for her own benefit, and, therefore, she having died intestate, the same belong to the plaintiff as her representative.
The judgment and order appealed from should be affirmed, with costs.
Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.
Judgment and order affirmed, with costs.