Dyer v. Waters

• Decision Date: 03 February 1890
• Parties: DYER v. WATERS et al.
• Court: New Jersey Court of Chancery

19 A. 129

46 N.J.E. 484

DYER

v. WATERS et al.

Court of Chancery of New Jersey.

Feb. 3, 1890.

(Syllabus by the Court.)

On bill, answers, and proofs.

H. A. Drake, for complainant. D. J. Pan coast, for defendant Waters.

PITNEY, V. C. The bill is filed by the administrator of a cestui que trust against her trustee, for an account of his trusteeship. The trust was created by the husband of complainant's intestate, who was the father of defendant, by his will, proven August 8, 1866. By it he directed his executors, the defendants, "to place at interest the sum of $8,500, and to collect the interest on the same half-yearly, and to pay the said interest half-yearly to his wife, Elizabeth Waters, during her life-time." The estate of the deceased was taken possession of by the defendant Ephraim Waters, and he has had actual charge and management of it, and is the sole answering defendant. The bill alleges that at the death of the tenant for life, the intestate herein, large arrears of interest were due her from the defendant Waters, and prays an account. The defendant Waters makes two defenses: First, he says he paid his mother the full amount of her annual interest during her life-time, and that he has paid out of his own estate, since her death, the expenses of her funeral, and so forth; second, he sets up the statute of limitations. I will consider these defenses in their order.

The defendant's allegation that he has from time to time paid his mother in full the interest provided for her by the will is supported only by his own oath. Except for the last three years of her life, he produces not a scrap of writing of any kind, nor any other evidence except his own oath, to support it. Among her effects was found a promissory note made by him in her favor, dated April 5, 1870, for $775. This note she seems to have preserved with great care in a pocket-book or purse which she kept constantly about her person. Its existence, viewed in the light of circumstances presently to be stated, indicates to my mind that at its date a sort of settlement took place between mother and son of their dealings, and this note was given as for a balance then found due. The son swears it was given for money borrowed from her at that time, and not for a balance then due for interest in arrears; but I think the circumstances do not support this statement. Defendant's statement of the manner in which the alleged payments of interest were made is extremely unsatisfactory; and it seems impossible to believe that a merchant and business man would pay even his own mother so much money, in so many different payments, running over such a period of time, without taking a single voucher, or making a single entry in his books, or being able to produce a single bank-check indicating such payment. Some time in 1868 or 1869 the deceased tenant for life went to live with her son-in-law and daughter, Mr. and Mrs. Dyer, in Camden, and made her home with them for about 10 years, and up to about April 1, 1878, when, Mrs. Dyer having become a confirmed invalid, and the decedent infirm and childish, from advancing years, provision was made by defendant for her to live with, and to be taken care of by, a Miss Abbott, in Woodstown, Salem county, where she lived until her decease, on the 28th of May, 1881. Defendant during all this time lived at Swedesborough, Gloucester county. The deceased was very plain and simple in her dress and habits, went out very little, and had very little occasion to spend money. At the same time, she was in a small way fond of it, and liked to have some in her purse, and to handle it; and during the last years of her life, when she had become a mere child, amused herself with some old coppers which she had in her purse, and with wads of paper which she supposed to be money. Mrs. Dyer is dead; but her daughter, Miss Anna L. Dyer, (now Mrs. Newkirk,) and her father, the complainant,—particularly Mrs. Newkirk,—had ample opportunity to know what money she received and had and disbursed during the period of about 10 years which she spent at their house. Mrs. Newkirk swears that the defendant came to see his mother once or twice a year, and that she (Mrs. Newkirk) was always present at the interviews, and that he was in the habit of giving his mother a little money on these occasions, in sums varying from $10 to $50. She was familiar with her grandmother's habits and expenditures. Mrs. Dyer usually made them for her. She bought very little clothing, and expended very little in charity. Mrs. Newkirk and her father estimate her annual receipts and disbursements at not over $60, and it would seem quite impossible that they should have been greater without the knowledge of those persons. They are corroborated in their evidence by that of Miss Abbott, to whom Mrs. Waters made annual summer visits. It is true that she usually made one visit yearly to the defendant at Swedesborough, and these witnesses cannot speak as to what took place while she was there; but if payments or settlements were made on those occasions, and in defendant's own house, it is incredible that he should not have been able to produce some evidence of it, either by living witnesses who were present, or some vouchers, book entry, or check. Besides, if she ever received any such moneys from the defendant as he claims to have paid her, the question arises, what became of it? Surely, he would have been able to show some trace of it. I am constrained by the evidence to conclude that from April 5, 1870, to April 1, 1878, defendant did not pay his mother more than $50 a year. After April 1, 1878, when she went to live with Miss Abbott, the case assumes a different aspect. Here defendant became responsible for her care and board, and paid for the same to Miss Abbott, and produces her vouchers for it. He also gave Miss Abbott a few small sums of money to use in supplying his mother's wants, and furnished her dry goods from his store, for which he charges $37.25. These items, viz., the payments to Miss Abbott, and the goods delivered from his store, are not seriously disputed. Also, after her death he paid the doctor's bill, funeral expenses, and some other matters, to which the complainant does not object.

But he also charges $300 for cash paid her in 20 several payments, in sums varying from $10 to $25, between April 5, 1873, "and April 2, 1881. These payments are disputed by complainant. Defendant swears he made them all at Miss Abbott's house, and produces in support of his own testimony what he claims to be contemporaneous entries of these payments in his ledger, which he produced before the master. He was invited and requested to produce it for inspection by the court at the hearing in Camden, but failed, without any excuse whatever, so to do. The healing was postponed on one occasion by reason of the absence of this book. His counsel frankly admitted that he had notified him that the book must be produced, and that he had no excuse to offer for its non-production. I am therefore compelled to act upon such description of these entries as is afforded by the evidence, and by a photographic copy taken by complainant's counsel. The entries of these alleged payments are made by themselves, on a single page of the index of the ledger, and, judging by the photograph, they appear to have been made by the same pen and ink and hand, and with great uniformity; and hence, in the absence of the benefit of an inspection of the original, I am constrained to believe they were made at one time. This conclusion, of course, not only destroys their value, but throws suspicion on all the defendant's testimony. In this connection, the evidence of Miss Abbott and her niece, Mrs. Brown, is valuable. They had ample opportunity to observe and know what money was paid to Mrs. Waters, and what she had in her possession from time to time; and they both say that she had but very little money, and that the few dollars she did have were disbursed in her behalf by Miss Abbott, and that on a few occasions her son gave her a few dollars, or rather gave to Miss Abbott for her, and never more than $5 or $10 at a time. During the last year her stock was reduced to a few old-fashioned coppers and one-quarter of a dollar. During the greater part of the last three years of her life, she was a mere child, and quite unfit to have the possession of money. These witnesses, Miss Abbott and her niece, estimate the amount of money paid to or for her by her son during her stay with them at not over $20 in all; and T conclude that their estimate is reliable. Miss Abbott's bill for Mrs. Waters' board for the three years and two months is $1,203.13, and was paid by the defendant. He made other payments, for physicians' bills and funeral expenses, and the like, amounting to about $250. His bill for dry goods furnished is $37.25; making a total of about $1,500 for the three years. Now, supposing that six months' interest accrued due to Mrs. Waters on the 1st of April, 1878, when she first went to live with Miss Abbott, and should have been paid to her at that time, then after that, and up to the time of her death, there accrued further interest for three years and two months, which, added to the amount coming due on the 1st of April, 1878, would amount, upon the fund of $8,500, to more than $1,500, or to about $1,750. Hence the endeavor of the defendant to prove the...