10 D.C. 194 (D.C.D.C. 1879), 5747, Page v. Burnstine

Docket NºEQUITY.— 5747.
Citation10 D.C. 194
Opinion JudgeMr. Justice OLIN
AttorneyW. F. Mattingly , for complainant. Enoch Totten , for defendant Burnstine.
CourtSupreme Court of District of Columbia

Page 194

10 D.C. 194 (D.C.D.C. 1879)




EQUITY.— No. 5747.

Supreme Court, District of Columbia.

September Term, 1879

I. P, during his life-time, obtained several loans of money from B, one of the defendants, and, as security for these loans, assigned an interest in a policy of insurance on his life. Afterwards P, being unable to pay the premiums on the policy, made an absolute assignment of that policy to B, who continued thereafter to pay the premiums until the death of P, and was treated by the agent of the company as the owner of the policy. Under these circumstances, a court of equity will not decree such assignment to be a mere security for the money advanced, as a consideration for the transfer of the policy.

II. Where the assignor of a policy of life insurance is dead, the assignee cannot be examined as a witness in regard to the transaction on his own behalf, unless he is called by the other party.

III. Loose memoranda found in the desk of the assignor after his death are incompetent evidence on the part of the administrator of the decedent, in a suit brought by the latter to set aside the assignment as an absolute transfer of the policy.


The case comes up on an appeal from a formal decree of the Equity Court. The cause was heard on the pleadings and proofs, and the bill was dismissed with costs. The facts, as disclosed by the pleadings and proofs, are substantially as follows:

The American Life Insurance and Trust Company, one of the defendants, issued a policy insuring the life of the decedent, Robert C. Page, in the sum of $3,000. This policy bears date November 26, 1866.

On the 30th day of September, 1868, Page borrowed from the defendant Burnstine the sum of $300, and, to secure the repayment of that amount, he executed and delivered to Burnstine an instrument in writing, by which he assigned to him the policy of insurance to the extent of the loan. He next borrowed $437 from Burnstine, on the 1st day of May, 1871, and then, on the 1st day of December, 1871, he made another loan from him of the sum of $213. For each of these loans he executed and delivered to Burnstine like instruments of assignment. Each of these assignments was regularly approved by the company. After the last loan, in December, 1871, Page stopped paying the premiums. Thereupon Burnstine paid the premiums. This continued until the 7th day of January, 1873, when Burnstine and Page met in the office of Mr. Cross, the agent, and Page then and there signed and sealed an absolute transfer of the policy to Burnstine. This assignment is on the back of the policy, and was approved by the company. The policy, together with the assignment, was delivered by Page to Burnstine. After that date Cross sent the notices of premiums falling due to Burnstine only, and treated him as the owner of the policy. At the time of making the assignment of the 7th of January, 1873, when the parties met in Cross's office, Cross told Burnstine that to save himself he should have the policy assigned absolutely to him. Mr. Page stated that he had no money and could not keep up the premiums, and was willing to make this assignment. From the conversation which passed Cross believes that some money was paid by Burnstine to Page in consideration of the assignment, but he has no idea as to the amount. Burnstine, in his sworn answer, avers that between the 1st of December, 1871, and the date of the assignment he kept urging Page to pay the premiums, and that Page asserted that he could not do so, and insisted that Burnstine should buy the policy outright and take an absolute assignment. He proposed that Burnstine should pay him for the policy the sum of $1,000, but this proposition was rejected. It was subsequently agreed, however, that Burnstine should pay him the additional sum of $500, and take an absolute assignment of the policy. This last agreement was carried out by the payment of the money and the delivery of the assignment. Burnstine paid all the premiums from December 1, 1871, until the death of Page, which occurred in November, 1875.

After the death of Page, and on the 11th day of January, 1876, the complainant, as administrator of the estate of Page, exhibited his bill in this court for the purpose of showing that the last assignment to Burnstine, though absolute in form, was executed and delivered for the purpose only of securing to the defendant the repayment of money loaned.

The bill prays an account and an injunction. The bill charges that the assignment was given as a security for the repayment of money, and not as an absolute transfer, and that Page had been paying interest on those loans to Burnstine at the rate of five per centum per month; and that, if a proper account shall be stated, there will be but little, if anything, due to Burnstine. The bill charges fraud upon Burnstine, in that he claims the whole sum due on the policy and denies that the estate has any interest. It also waives, or seeks to waive, an answer under oath as to Burnstine; but Burnstine answers under oath, and negatives every material allegation of the bill.

To establish the allegation of his bill, the complainant produced an envelope found in the decedent's desk, after his death, with the contents thereof. The envelope contained a will made by Page on the 5th day of July, 1870, and a receipt dated October, 1868, signed by Burnstine, for six drafts or orders on one Bell, drawn by the testator, October 2, 1868, in favor of Burnstine, each for $50. These drafts were drawn upon Bell as disbursing clerk of the Post-Office Department, and against the monthly pay of the drawer, who was a clerk in that department. They were payable in successive months. The envelope contained also five pieces of paper, upon which Page had made some kind of computations. These computations seem to have been made at about the same time, the latest date mentioned being December 1, 1871. Four of them were made with ink and one with a pencil. Objections to the introduction of this testimony were made, and before the hearing a motion was filed to strike it out. The deposition of Burnstine was taken in the cause.

W. F. Mattingly , for complainant.

The statements in the handwriting of Robert C. Page, deceased, are admissible in evidence. Phillips on Evidence, vol. 1, p. 300, states the rule to be as follows:

" It is a rule of evidence clearly established that declarations of persons since deceased (under which term of declarations all written statements and entries are intended to be comprehended) are admissible, where those persons are to be presumed connusant of the subject-matter, if the declarations apparently operate against their own interest , whether pecuniary or proprietary." " Nor does it seem necessary that the declarations should have been made by persons in the course of any business or employment, or that declarations against interest should be contemporaneous with the facts to...

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