Terhune v. Oldis

Citation14 A. 638,44 N.J.E. 146
PartiesTERHUNE v. OLDIS.
Decision Date18 June 1888
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court.)

Appeal from orphans' court, Bergen county; SKINNER, ACKERSON, and GAMSON, Judges.

Appeal by Richard P. Terhune, executor of Peter R. Terhune, deceased, from a decree of the orphans' court on exceptions by Margaret Oldis to his account.

A. D. Campbell, for appellant. J. M. Van Valen, for respondent.

MCGILL, Ordinary. The appeal in this case is from the decree of the orphans' court of Bergen county upon exceptions of the account of the appellant. The testator, Peter R. Terhune, died in January, 1879, and the account in question was filed in September, 1885. It is the first account that the executor has rendered, and is termed by him an "intermediate account," because he claims that a final settlement of the estate, and distribution of the moneys in his hands, cannot be made until the determination of an annuity which is charged upon the estate by the will in favor of the testator's widow during her life or widowhood. The account is unquestionably final as to that which is settled by it. Pomeroy v. Mills, 37 N. J. Eq. 580. It is intermediate merely in the sense that it is not the last account that the executor mast render. Though it be not the last account, it should include everything that has been done in the administration of the estate to the time it is filed. The first objection presented by the petition of appeal is to that part of the decree which directs that the executor be charged with $8,000, the principal which was secured to be paid to the testator by a mortgage made by the appellant and his wife in August, 1875, and interest upon it from March 2, 1880, the day upon which the executor caused the registry of the mortgage to be canceled, to the date of filing the account. The main contention in the case is upon this part of the decree. In proof of the indebtedness thus charged, the husband of the respondent, and the respondent herself, were sworn. The husband testified that, shortly after Peter Terhune's death, the appellant told him, in the presence of the respondent, who is the appellant's sister, that he (the appellant) was indebted to the testator in the sum of $13,000,—$5,000 upon a note, and $8,000 upon a mortgage; and that, at another time, when the inventory was being taken at the house of the decedent, the appellant reiterated the statement he had made as to his indebtedness, and added that he would not inventory the $8,000 mortgage because "it would run the inventory up too high," but that he would "bring it in when he brought his account in." The respondent testified that, shortly after her father's death, the appellant said that he owed his father's estate $13,000,—$5,000 upon a note, and an $8,000 mortgage. She stated that her husband was present at this interview, and that she thought that the appellant's wife was also there. Added to this testimony, a bond and mortgage were produced from the possession of the appellant, proved by the subscribing witness to them, and offered in evidence. The bond bears date on the 25th of August, 1875, and is in the penal sum of $16,000, and is conditioned for the payment of $8,000. Nothing is said in it either as to interest, or as to the time when the principal is payable. It is in the handwriting of the accountant, and is signed and sealed by him. There are no indorsements of payment of either principal or interest upon this instrument. The mortgage is also in the handwriting of the appellant, and is signed by him and his wife. The seals have been torn off. This instrument was witnessed, and bears the certificate of a master of the court of chancery that the appellant and his wife signed, sealed, and delivered it as their voluntary act and deed, and that the wife separately acknowledged that she so executed it without fear, etc., of her husband. Like the bond, the mortgage fixed no date at which the money secured by it shall be paid, and is silent as to interest. At the foot of this document, in the handwriting of the appellant, is a receipt in the following words: "MARCH 2, 1880. Received principal and interest in full, and may be canceled of record. R. P. TERHUNE, Executor." The mortgage is shown to have been registered in the office of the clerk of Bergen county on January 22, 1876, and to have been canceled of record on March 25, 1880. In answer to the case made by these proofs, the accountant testified that he caused the mortgage to be registered, and took it from the clerk's office after the registration was completed, and that afterwards he receipted it as above set forth, upon being advised that he must do so to have it canceled, and caused it to be canceled of record, and that the testator never held it; also that his sister, the respondent, was made aware of the existence of the mortgage just after the inventory of the father's estate was made; that he told her of it at his house, he thinks, in the presence of her husband; and that it had been executed to protect the testator because of indorsements on notes which he (the accountant) had given, and that, when the notes were paid, he proposed to cancel the mortgage. He stated that he did not remember any other conversation with his sister, nor did he remember the conversations to which she and her husband testified. He said that he did not, as executor, receive any money or valuable thing for the mortgage or for its cancellation. He offered to testify that the mortgage was given to secure his father from loss by reason of his indorsement of several notes, and that the notes referred to were all paid when the mortgage was canceled, and also that the mortgage was never delivered to the testator. This offer was overruled by the court, and I think properly, because of the incompetency of the accountant to testify to any transaction with or statement by the testator. The ruling is within Smith v. Burnet, 35 N. J. Eq. 314.

It is insisted by the appellant that enough appears in the case to show that the bond and mortgage were never delivered to the testator, and that, in absence of the establishment of delivery of those papers, the testimony of the exceptant and her husband as to his declarations, contradicted, as it is, by his testimony, is not sufficient to justify the charge of $8,000, and interest, against him by the decree. These papers are certainly valuable adjuncts to the respondent's proofs of the alleged indebtedness, if they are to be considered as having been delivered to the decedent, and for this reason it is important to determine whether the delivery of them has been established. The possession of a deed formally executed by the grantee therein is presumptive evidence of the delivery of it to him, (Farlee v Farlee, 21 N. J. Law, 280; Black v. Shreve, 13 N. J. Eq. 455; Benson v. Woolverton, 15 N.J. Eq. 158; Brown v. Brown, 33 N. J. Eq. 653;) but it is not necessary, to constitute complete delivery, that the instrument should leave the actual possession of the grantor, (Folly v. Vantuyl, 9 N. J. Law, 153; Crawford v. Bertholf, 1 N. J. Eq. 458; Cannon v. Cannon, 26 N. J. Eq. 319; Ruckman v. Ruckman, 33 N. J. Eq. 354.) To show delivery there must be proof of that which evinces an intention on the part of the grantor or mortgagor to part with the instrument, and, of course, pass the title. This intention may be made...

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4 cases
  • State ex rel. Welch v. Morrison
    • United States
    • United States State Supreme Court of Missouri
    • June 20, 1912
    ...102 Pa. 572; Koon v. Munro, 11 S.C. 139; Webb's Heirs v. Webb's Admr., 22 Ky. 163; Clark's Appeal, 2 Watts (Pa.), 405; Terhune v. Oldis, 44 N.J.Eq. 146, 153, 14 A. 638; In re Davis, 37 Misc. 326, 75 N.Y.S. 493; of Sharp v. Klienpeter, 7 La. Ann. 264; In re Boyer, 54 Misc. 182, 105 N.Y.S. 85......
  • Tyler v. Hall
    • United States
    • United States State Supreme Court of Missouri
    • October 12, 1891
    ......Hall being duly. executed and acknowledged and in the possession of the. grantee, there was prima facie evidence of delivery. Terhune v. Oldis, 44 N.J.Eq. 146; S. C., 14 A. 638. (2) "The question of delivery being one of fact, and. possession being only primary evidence of ......
  • In re Cunningham, 3403.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 4, 1933
    ...Gorham's Adm'r v. Meacham's Adm'r, 63 Vt. 231, 22 A. 572, 13 L. R. A. 676; Nazro v. Ware, 38 Minn. 443, 38 N. W. 359; Terhune v. Oldis, 44 N. J. Eq. 146, 14 A. 638; Xenos v. Wickham, L. R. 2 H. L. 296, 16 L. T. 800; Waddell v. Hewitt, 36 N. C. 475, 481. Even these authorities require that t......
  • Davisson v. Akin
    • United States
    • Supreme Court of Oregon
    • November 3, 1902
    ...v. Lang, 66 Ala. 389; Arnold v. Arnold, 124 Ala. 550, 27 So. 465, 82 Am.St.Rep. 199; Harker v. Irick, 10 N.J.Eq. 269; Terhune v. Oldis, 44 N.J.Eq. 146, 14 A. 638; Garber v. Com., 7 Pa. 265; Lyon v. 58 Vt. 707, 7 A. 5. For the purpose of setting the question at rest, the effect of the appoin......

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