Barrett v. Cady

• Decision Date: 07 December 1915
• Citation: 96 A. 325,78 N.H. 60
• Parties: BARRETT v. CADY.
• Court: New Hampshire Supreme Court

96 A. 325

78 N.H. 60

BARRETT

v. CADY.

Supreme Court of New Hampshire. Coos.

Dec. 7, 1915.

Exceptions from Superior Court, Coos County.

Bill by Alonzo D. Barrett, administrator, against Elisha H. Cady, administrator, who had filed a bill of interpleader against the heirs of his intestate and others, dismissal of which was denied. The facts were found in the superior court, and the case reserved on defendant's bill of exceptions. Case discharged.

John C. Evans died on June 17, 1906, leaving a widow, Jeanette, and a daughter by a former marriage, Zoe M. Evans, and on March 28, 1914, the plaintiff was appointed administrator of his estate. April 13, 1913, the defendant was appointed administrator of the estate of Jeanette, who died earlier in that month, leaving three heirs. As administrator, the defendant took possession of certain personalty, including some silverware, all of the appraised value of $35. There also came into his hands a bank book in Jeanette's name, showing an initial deposit of $1,000 on March 2, 1906, and others made in 1908 and 1909, and also withdrawals of $45.43 and $254.57 on June 13 and July 24, 1906, respectively. The balance of the deposits, exclusive of interest, was $885.60 and a credit of dividends made the amount due $1,114.67, exclusive of a deposit by Cady as administrator. John had promised to give Zoe, his daughter, $200 to assist her in establishing a business, and after his death Jeanette paid her that sum out of the money withdrawn from the bank on July 24, 1906. The balance of this withdrawal and the amount withdrawn on June 13th were used to pay bills against John's estate. The later deposits shown by the bank book were made by Jeanette from her own funds, and she also paid out of her own money debts of her husband to the amount of $31.18. When Zoe was about to be married she asked Jeanette for a further sum of $200, but the request was refused. Later she borrowed from and repaid to Jeanette the sum of $25.

The plaintiff's bill alleged that the initial deposit of $1,000 was the money of John, deposited in the name of Jeanette upon the understanding that it would be held in trust by her for John, and also claimed as John's property certain personalty in the possession of the defendant as Jeanette's administrator. The prayer of the bill was that a trust be declared in favor of John's estate, and that the defendant be ordered to pay the funds thereof to the plaintiff. The defendant's answer admitted that the original deposit was of John's money, but alleged that it was paid to Jeanette as compensation for care and services rendered to John's father at the son's request, or as a gift.

Subject to exception, the plaintiff was permitted to testify that about three weeks before John died at the witness' house he overheard a conversation between John and Jeanette, and thereby learned that it had been agreed between them that the money should be deposited in the Gorham Bank in Jeanette's name for the convenience of John, because he was in poor health, and that he had planned to go to Portland, Me., where he expected to buy a lodging house, in which event he would use the money deposited in Jeanette's name to pay for it. He further testified that shortly after the deposit was made John went to Portland to inspect a lodging house, but did not buy it. The court found that the plaintiff's testimony correctly stated the arrangement between John and Jeanette whereby the money was to be deposited in her name; that the plaintiff knew of the agreement between John and Jeanette during the lifetime of both, but that it did not appear when he learned that the deposit had actually been made; and that Zoe knew during her father's lifetime that the money was deposited in Jeanette's name. It was also found that the silverware was John's property.

Upon the foregoing findings it was decreed that the silverware and $700 of the bank deposit, with a due proportion of the accrued interest, belong to John's estate, and that the remainder of the property belongs to Jeanette's estate. From the funds due to John's estate Jeanette's estate should receive $31.18 (the amount paid by her toward the funeral expenses, etc., of John), with interest thereon from the date of judgment. It was also ordered that the decree should "be certified to the probate court for its guidance in the settlement of the accounts of the respective administrators and in formulating its decree of distribution."

Prior to the beginning of the present action Cady, as administrator, filed a bill of interpleader against Zoe M. Evans and the heirs of Jeanette, alleging therein their conflicting claims to the property in his hands. At the close of the hearing Cady's motion for leave to dismiss the proceeding begun by him was denied, subject to exception. The defendant excepted to the decree as against the law and the evidence, and to various findings upon the grounds that there was no evidence to sustain them and that they were against the weight of the evidence. He also excepted to the refusal of the court to make certain findings requested by him, and to the denial of his motion, made several weeks after the close of the hearing, that the bill be dismissed for lack of equitable jurisdiction; the plaintiff having an adequate remedy at law. In his answer the defendant set up laches as a defense, and excepted to a ruling that the plaintiff's claim was not barred as matter of law by the statute of limitations or by laches.

Ovide J. Coulombe, of Berlin, for plaintiff. Jesse F. Libby, of Gorham, for defendant.

PARSONS, C. J. 1. The bill of interpleader brought by Cady should be dismissed. The issue presented by the plaintiff in a bill of interpleader is the existence of facts which give him the right to require the parties made defendants to interplead and settle the controversy between themselves. "When the complainant's right to interpleader is established either by admissions in the answer or by proofs, he is dismissed, with the costs of his litigation, which are to be paid out of the fund, and the conflicting claims of the defendants are then disposed of in the manner best adapted to the circumstances of the case." Bisp. Eq. (7th Ed.) § 422. A decree that a bill of interpleader is properly filed is the only decree the plaintiff is interested in obtaining. 2 Dan. Ch. *1564; Story, Eq. Pl. § 297b; Golden Cross v. Donaghey, 74 N. H. 466, 69 Atl. 263. It does not appear that the defendants have interpleaded, or that there has been any decree requiring them to do so, or any trial of the issue whether they should, or that the defendants have answered or even appeared. In this situation, by analogy to the right of a plaintiff to become nonsuit at any time before trial, it would seem that the plaintiff had the right as matter of law to dismiss his bill. Hood v. Marshall, 69 N. H. 605, 45 Atl. 574; Simpson v. Gafney, 66 N. H. 477, 30 Atl. 1120; Webster v. Bridgewater, 63 N. H. 296.

But the bill should have been dismissed because it was not maintainable upon the facts alleged. Such a bill "can be maintained only when the same debt or duty or other thing is claimed by two or more parties, by different and separate interests, and in which the claimant has no interest beyond that of a mere trustee or stakeholder, and where from his own showing he cannot determine the right between the conflicting claimants without hazard to himself. * * * The danger of injury to the complainant arising out of the opposing claims and doubtful rights of the several defendants, as between themselves, is the general ground of jurisdiction in a simple bill of interpleader. It must appear from the complainant's own showing that he cannot pay the debt or render the duty or other thing to either of the parties claiming the same without some risk of being subsequently liable for the same debt or duty to the other." Farley v. Blood, 30 N. H. 354, 361; Page Belting Co. v. Prince, 74 N. H. 262, 263, 264, 67 Atl. 401; Golden Cross v. Donaghey, 74 N. H. 466, 467, 468, 69 Atl. 263; Badeau v. Rogers, 2 Paige (N. Y.) 209. Hence an executor or administrator cannot file a bill of interpleader against the creditors and distributees of the estate and an adverse claimant of the assets, because a bona fide defense against the claim, though unsuccessful, will protect him against creditors and distributees. Stevens v. Warren, 101 Mass. 564; Adams v. Dixon, 19 Ga. 513, 65 Am. Dec. 608; Blue v. Watson, 59 Miss. 619.

The heirs of Jeanette have no title to the property. Their right is to share in the assets remaining in the administrator's hands after payment of debts and expenses of administration. If the property in dispute belonged to Jeanette, until such distribution her administrator held the legal title, as did Barrett, John's administrator, if the property belonged to John. Crosby v. Charlestown, 78 N. H. 39, 95 Atl. 1043. Cady's title was precisely of the same nature as Barrett's, and the controversy was solely between them.

2. The exceptions to the denial of the motion to set aside certain findings on the ground of the absence or insufficiency of the evidence and to the refusal to make requested findings cannot be considered without the evidence, which is not yet before the court. If it should become necessary to consider them, opportunity will be given the exceptor to furnish the substance of the evidence if he can do so.

3. By the Constitution and the statute the probate court has exclusive original jurisdiction of the settlement and distribution of the estates of deceased persons. The superior court has no power to require an administrator to account for his administration upon a bill in equity, or to revise proceedings in the probate cour...