115 N.Y.S. 541 | N.Y. App. Div. | 1909
Lead Opinion
The parties to this action are sister^and brother and the controversy arises over the sum of $300 which their uncle, Imri Johnson, gave to their mother, his sister, Priscilla Hubbs, in December, 1891. .Priscilla, Hubbs is dead and the only reliable evidence given and which, was competent under section 829 of the Code in relation to the gift of the $300 to Priscilla Hubbs by her brother is his testimony. Indeed, the learned county judge states in his opinion : “ In disposing of this case I have entirely rejected testimony of plaintiff as to the agreements between her mother and Johnson, as I do not think this testimony was competent under section 829 of the Code, and have based my conclusion solely upon the testimony of Johnson as to such agreement.” The testimony of Johnson,, so far as bearing upon'the giving of the $300 to Priscilla Hubbs, his sister, is very brief and is as follows : “ I was related to Priscilla Hubbs. I was her brother. I am. acquainted with George W. Hubbs and Cora Zimmerman (the parties to this action). I am uncle to them. While living in the town of Brownville I did not maintain my own residence or home, but resided with my sister Priscilla Hubbs. In a way I paid my sister Priscilla Hubbs for my board while I lived with her. I had no special arrangement with her. I paid the mortgage of $1,500.00 on the place. The place was sold by me for them for $1,800.00. I charged no interest on the $1,500.00, When-
The meaning of Johnson’s evidence cannot be in doubt, and it is not in conflict with the finding of the court in that regard. It is in effect that Priscilla Hubbs should be at liberty to “ use the principal sum thereof ($300.00) for her maintenance and support, if she so desired, or if she needed it.” The $300 was delivered by Johnson “to her for her to use—the whole of it if it was necessary for her support.”
Shortly prior to the 27th day of March, 1897, and five years after she received the moneyfrom Johnson, Priscilla Hubbs gave to her son (the defendant) between $600 and $700 with which he bought a house and lot situated in the village of Dexter, and took a deed
Wholly independent of the question as tó whether a trust was created by the gift of Imri Johnson to his sister in favor of the plaintiff, it seems to me clear that Priscilla Hubbs had the right to use the money so given to her by Johnson for her maintenance and support, and that under the evidence it should be found that she did so use it by giving it to her son under the agreement on his part that he would maintain and support her and furnish a home for her during her natural life; and he having performed his part of the agreement in that regard, the plaintiff has no cause of action against him.
It follows that the judgment and order appealed from should be reversed on the law'and the facts, and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Spring and Williams, JJ., who dissented in a memorandum by Spring, J.
Dissenting Opinion
While the proof is not explicit in showing that the $600 or $700 paid by Mrs. Hubbs to the defendant included the $300 which came from Johnson, I think the circumstances are sufficient to uphold the finding of the court below that such was the fact. The series of transactions are chiefly within the family and it is very difficult to connect them with direct proof. I think the effect of Johnson’s testimony is that Mrs. Hubbs accepted this sum of $300 with the expectation it was to be paid to the plaintiff. It maybe, as is stated in the opinion of the presiding justice, that it was primarily for her support and that the alleged agreement with her son was fairly
It is to he borne in mind, however, that the fact of the alleged oral agreement depends entirely upon the testimony of the defendant, and his evidence is incompetent under section 829 of the Code of Civil Procedure, although no objection was interposed to it. His wife testified in his hehalf, but she testified to very little to fortify his position. She simply said that Mrs. Hubbs told her “ she always expected to be taken care of by him (the defendant) and expected to live with him.” -
Inasmuch as the defendant took title by deed and gave a life lease to his mother we would expect to find the agreement to support and maintain her as a consideration of the money paid to him embodied in this lease or in a separate written contract.
The plaintiff testified that after her mother’s death she had a conversation with her brother, the defendant, with reference to this sum of $300.- In testifying to his statement to her upon this subject she gives this narration: “ He said that when the moneys were turned over to him, his mother made him promise to divide with me, and he was bound to do it. That was what. he said, and he pulled a deed out of his pocket. * * * He said he would, several times.” The defendant disputes this testimony, but in order to sustain the decision of the court below we have a right to assume that her version is correct.
It seems to me that the defendant is endeavoring to take advantage of his sister in this transaction. Their mother apparently paid her way all tlie time she was claiming to be living with her son. She was a strong vigorous Avoman, capable of earning considerable money, and she spent much of her time with the .plaintiff. She probably did call her son’s residence her home, but it does seem to me that the old lady expected that this money, Avliich came as a gift to her, would be' paid over to the plaintiff. Her own money which she had earned or inherited she was willing the son should receive.
. I vote for affirmance of the judgment.
Williams, J., concurred.
Judgment and order reversed and new trial ordered, Avith costs to appellant to abide event.