Andreas v. Andreas

• Decision Date: 16 February 1915
• Docket Number: No. 37/439.,37/439.
• Citation: 84 N.J.Eq. 368,94 A. 417
• Parties: ANDREAS v. ANDREAS.
• Court: New Jersey Court of Chancery

94 A. 417

84 N.J.Eq. 368

ANDREAS

v. ANDREAS.

No. 37/439.

Court of Chancery of New Jersey.

Feb. 16, 1915.

Bill by Wendell Andreas against Hattie Andreas. On a final hearing. Decree for complainant.

Arthur F. Egner, of Newark, for complainant. William H. Carey, of Jersey City, and Edmonds Putney, of New York City, for defendant.

HOWELL, V. C. This suit is brought by a husband against his wife to compel her to restore to him some securities which he says were taken by her in August, 1913, surreptitiously from his safe deposit box in the New Jersey Title Guaranty & Trust Company of Jersey City. The facts are these: The parties were married on April 8, 1901; they lived together until August 23, 1913, when the defendant left her husband and brought suit against him for divorce on the ground of adultery, which suit is still pending. At the time of the marriage the husband had a large portion of his fortune invested in securities, which came to him from his father's estate. They were kept by him in a safe deposit box in the Mercantile Safe Deposit Company in New York. To this box he alone at that time had access. On December 17, 1904, the husband and wife appeared at the office of the Safe Deposit Company, and then and there the lease or memorandum of the box, which had, up to that time, stood in the name of the husband, was changed to "Wendell Andreas or Mrs. Hattie Andreas." At that time the wife was given a key, which gave her access to the box and its contents without the presence of her husband. Both parties continued to have access to the box and its contents until some time in February, 1908, or thereabouts, when they gave up the box in the Mercantile Safe Deposit Company and rented one in the New Jersey Title Guaranty & Trust Company in Jersey City, to which all the securities were removed, and to which both parties had access, the same having been rented in the name of both husband and wife. After the defendant was given access to the securities in New York she at times cut the coupons from the bonds, at other times this was done by the husband, but by whomsoever it was done, the coupons were deposited in the husband's individual bank account in the Hackensack National Bank until some time in 1906, when that account was changed to a joint account of the husband and wife, against which both of them might draw. This state of facts continued until August, 1913, when the wife, accompanied by her counsel, went to the office of the Safe Deposit Company in Jersey City and there, without the knowledge or consent of the husband, took from the said box somewhat over half in value of the securities therein deposited, and took the same into her own possession, where they now are. The husband discovered the loss in September, 1913, and, after some negotiation between the counsel for the respective parties, suit was brought as herein above stated. The other facts of the case will appear later on. The wife claims title to the securities taken by her on the ground that they were the subject-matter of a gift from her husband to her on December 17, 1904. The facts in relation thereto are hereinafter stated more fully. [1-3] In cases relating to gifts, not only must there be shown that there was a donative intention on the part of the donor, but that there was also a delivery of the thing given, and this point of delivery includes a consideration of the subject-matter of the gift. The identification of the gift is part of the question of delivery, because there can be no delivery until the thing to be delivered has been ascertained. In this case there is some discrepancy between the allegations of the pleadings and the proofs on this question of identification. In the answer of Mrs. Andreas she says: "That in the latter part of the year 1904 the complainant gave to the defendant a one-half interest in all the personal property representing his share and interest in his father's estate," and that in the month of February, 1908, "the complainant and defendant agreed that thereafter each should hold his or her share of said property in severalty and independent of each other" a situation which would be impossible if the former allegation were true, unless there were an actual partition. In the cross-bill the allegation is—

"that in the latter part of the year 1904 the complainant gave to the defendant one-half of all the personal property representing his share and interest in his father's estate then deposited in the safe deposit box rented by him in his name in the Mercantile Safe Deposit Company in New York City."

And that in the month of February, 1908, complainant and defendant agreed that thereafter each should hold his or her share of said property in severalty. These allegations leave it in doubt whether the defendant wished to say that she took an undivided one-half interest in the property which is the subject-matter of the suit as co-owner thereof with her husband, or whether she took a specific one-half of all the property so that it would be possible to set apart the property which belonged to her from the property which belonged to her husband. The testimony given by her fails to elucidate the point, but leaves it in quite as uncertain a condition as do the pleadings. I extract the following from her evidence:

"Q. Now will you state what the conversation was between your husband and yourself with respect to the securities and to any proposed change of title? A. Just before that time he said he thought I should be independent and should own one-half of what was in box; he gave several reasons for why I should be independent. He mentioned an accident to a friend of ours of previous years in 1899; this friend, Mr. Burr, was thrown off the trolley car. Q. What was the name? A. Louis Burr; he was thrown off the trolley car, and he was out of his mind several weeks, and Mr. Andreas said to me, 'If anything ever happens to me like that, you will have nothing to draw on. I think you should own one-half with me.' Q. One-half of what? A. Of the bonds and stocks that were in the box then of the Mercantile Safe Deposit"

On February 15, 1908, Exhibit D 2 was written by the husband. It reads as follows:

"February 15, 1908. An agreement between Wendell Andreas and Hattie Andreas his wife signed this date covering the ownership of the stock and bonds in this box will be found (if not in this box) in the small safe at the residence of Wendell Andreas. The stock and bonds having been owned jointly up to this date, are divided as per this agreement,...