Fitzpatrick v. Graham

• Decision Date: 16 April 1903
• Docket Number: 134.
• Citation: 122 F. 401
• Parties: FITZPATRICK et al. v. GRAHAM.
• Court: U.S. Court of Appeals — Second Circuit

122 F. 401

FITZPATRICK et al. v. GRAHAM.

No. 134.

United States Court of Appeals, Second Circuit.

April 16, 1903

Charles E. Miller, for plaintiffs in error.

Wm. H McQuaid, for defendant in error.

See 116 F. 1021.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

LACOMBE Circuit Judge.

The plaintiff was a cousin of Ann Cassidy, who died August 28 1897, intestate, leaving her heirs at law, her brother Peter A. Cassidy, her sister Mary E. Fitzsimons, and a son of a deceased sister, John P. McNally. Peter Cassidy died in February, 1899, leaving five children, three of whom are minors. John P. McNally, who was a lunatic, died before the commencement of this action. The foundation of the action is a deed of the premises which plaintiff alleges that Ann Cassidy executed and delivered to her, as a gift, a few days before her death. The main issue in the case was whether or not such deed was executed and delivered. The facts in the case will sufficiently appear in the discussion of the several assignments of error which have been argued here.

1. It is assigned as error that the court refused to dismiss the complaint on the ground that the allegations of the complaint as to execution and delivery had not been sustained. The sole witness to these facts was the plaintiff herself. She testified that on the day named a deed of the premises to witness was produced, was examined by others then present and was handed to Ann Cassidy. On these propositions she was corroborated by the testimony of defendant's witnesses or some of them, and the evidence shows that deceased had several times expressed a wish to give these premises to plaintiff. She further testified that thereupon deceased asked one Father Colton to read the paper to her, which he did; that while he was reading she left the room for a moment, and, when she came back, saw deceased's hand stretched for the paper, to take it from Father Colton, and the pen was right beside her; that, as she took the pen, witness again stepped into the other room, and, when she came back, Ann handed her the paper, saying, 'Here is a home for you;' that she looked at it, and saw Ann Cassidy's signature on it, with which she was quite familiar; that she folded the paper and put it in Ann Cassidy's desk; that subsequently plaintiff and deceased examined the deed together, when she again saw the signature, and they frequently referred to it in conversation with one another; that at the very moment of Ann Cassidy's death the brother, Peter Cassidy, went to the desk and took the deed that plaintiff expostulated with him and demanded it, but he laughed at her, pushed her away, and kept the deed, which she never saw afterwards. This testimony, if properly admitted and fully credited, would amply sustain the allegations of the complaint as to execution and delivery of the deed. The testimony undoubtedly relates to conversations with persons deceased, the witness being interested in the issue tried; but, since the defendants are not executors or administrators of the deceased, the peculiar language of section 858, Rev. St. (U.S. Comp. St. 1901, p. 659), makes such testimony competent, even against the heirs at law. In the state courts--probably in the courts of every state in the Union-- such testimony would be excluded in such a suit, as it ought to be; but we must take the statute as we find it, and hold that the testimony was properly admitted. Indeed, defendants' brief concedes that it is. It is contended, however, that although, under the statute, it must be admitted, nevertheless it is so tainted with the temptation of self-interest and with the opportunity for undetectable falsification that it should not be held persuasive unless it be corroborated. The authorities cited do not sustain the proposition. In the opinion of Judge Jenkins in Harman v. Harman, 17 C.C.A. 479, 70 F. 894, it is asserted that courts have 'a right, in weighing testimony, to consider the great interest that the witness has at stake, and have a right, also, and it is their duty, in such a case as this, to consider that he speaks knowing that no human power can summon from the grave the one who might contradict him or dispute his statements,' and also that courts 'should insist that such evidence should in all essential particulars stand uncontradicted, and should be fully corroborated. ' But that was in an equity suit, where the court was the trier of the facts, and Judge Jenkins was a dissentient: the majority of the court finding the testimony, despite contradictions or lack of corroboration, sufficient to warrant a reversal. In Kenney v. The Public Administrator, 2 Bradf.Sur. 319, the sole witness to substantiate a donatio causa mortis was the donee, and the court remarks that 'it would be a precedent of the most dangerous character to hold such a gift valid on the naked evidence of the donee, uncorroborated by any circumstances'; and in view of the fact that the donee was guilty of concealment and falsehood at a period when the validity of the gift, if the transaction was fair and honest, might have received the sanction of the decedent before competent witnesses, the court was led to the conclusion that she 'has failed in producing the clear proof which the nature of the claim requires.' But Surrogate Bradford in that case was sitting as the trier of the facts. The same was the situation in Tilford v. Bank for Savings, 31 A.D. 565, 52 N.Y.Supp. 142, where the decision of the court at special term was reviewed on appeal; and in Van Slooten v. Wheeler, 140 N.Y. 624, 35 N.E. 583, which also came up on review from the special term. The utmost that the authorities hold is that in actions of this sort very clear, strong, and convincing testimony should be required, but what evidence fills these requirements it is left for the trier of the facts to determine. Defendants would have been entitled to have the jury instructed on the lines indicated in the citations supra, but were not entitled, as matter of law, to have the complaint dismissed, if there were sufficient testimony to sustain its allegations, provided the jury believed such testimony.

It is true that plaintiff's evidence was contradicted; that there were facts testified to which seemed inconsistent with her story: that proof was given of statements made by her which could not be harmonized with her narrative; but the question as to the credibility of these other witnesses and of herself was for the jury, and it makes no difference that the court, if it had to pass upon the evidence, would have reached a different conclusion. The rule by...