Goulding v. Horbury

• Decision Date: 29 December 1892
• Citation: 85 Me. 227,27 A. 127
• Parties: GOULDING v. HORBURY.
• Court: Maine Supreme Court

27 A. 127

85 Me. 227

GOULDING

v. HORBURY.

Supreme Judicial Court of Maine.

Dec. 29, 1892.

(Official.)

Action by Jane P. Goulding against Charles Horbury for conversion. Plaintiff had judgment on a verdict for $4,800, and defendant brings exceptions, and moves for a new trial. Motion and exceptions overruled.

McGillicuddy & Morey, for plaintiff.

Newell & Judkins, for defendant.

PETERS, C. J. Some of the facts of this case should be stated in order to appreciate the pending questions. Thomas Pemberton, over whose property controversy has arisen, died at Sabattus, in this state, in May, 1891, then 72 years old. He never was married, and he left no will. Jane Pemberton Goulding, his illegitimate daughter, born in England, and living there until she became 34 years old, in April, 1890, came to this country to live with him. At the time of his death he owned a small house in Sabattus, all of which he rented, excepting the basement, which was his kitchen, and the attic room, in which he and his daughter slept in separate beds. He was for a lifetime industrious and saving, being evidently a man of miserly habits, and up to the time of his death had amassed an estate amounting to $15,000 or more, consisting mostly of stocks, bonds, and savings bank books. In a corner of this attic room was a small portable cupboard, so called by the witnesses, brought by him from England when he first came to this country 30 to 40 years ago, in which he kept his valuables of a moneyed kind, and any other papers he had. His habit was to keep the cupboard locked, with the key in his pocket.

He was taken sick on a certain Saturday, and died on the Wednesday following, occupying his bed from the first to the last of his sickness. The plaintiff claims that on Sunday, during his last sickness, while expecting and awaiting death, he gave her about $14,

000 worth of stocks, bonds, and bank books, which were at that time in this cupboard. The present action is one of trover, brought by her for a portion of such property against the defendant, who is the administrator of her father's estate. Upon her story as a witness her right of recovery mostly depends.

Her testimony is lengthy, but the most material portion of it is presented here, as follows: "I was just giving him [her father] a cup of tea, and he got hold of his pants, that were on his bed, and he felt in his pockets, and took his two old wallets out, and the key of the corner cupboard. He said: 'Here, Jane, take these,' he says, 'and take this key of the corner cupboard. It is thine, and all that is in the corner cupboard is thine, and don't let any one take it from thee, for thou art mine, and I am thy father.' * * * He said: 'Now, Jane, don't let no one take them off thee. They are thine, and put thy foot down, and say that everything of thy father's is thine; and don't let any one take them of thee.' * * *

I just went to the cupboard and looked in, and took them in my arms and looked them over, and all the bonds were lying on the bottom of the cupboard, and I looked at them, and put them back again. Then I got the bank books and looked at them, and put them back again. There was a bundle of papers all strung up with strings, and I did not unfold them, and did not examine them, but I put them back again; and I never troubled them afterwards until Mr. Levi Wooley came."

She further testified that after locking the cupboard she placed the wallets, containing about $100 in money, and the key, in her own pocket, where they remained until her father died; that she had never had the key, before this, in her possession, but had been sent with it by her father to get papers from the cupboard for him; and that she placed some valuables of her own in the cupboard the same Sunday after the donation was made. Of this latter matter she said: "In the afternoon I went to my trunk, and I put my two bank books in the cupboard. I thought I would lock them all up together. My father was so sick. There wasn't any safe place only this in the bedroom, in that comer cupboard." On cross-examination she said her father was not too feeble to have got up and gone to the cupboard himself, and that he had a full view of it, and was within a few feet of it, as he was situated in his bed.

It cannot be pretended that there was any unnaturalness in his giving her the bulk of his estate. She had for many years been acknowledged by him as his daughter. He visited England several times to see her and her mother, tarrying with them there for months at a time. His letters express great sympathy and affection for his child; and they contain many intimations, if not avowals, that she might expect to receive his property at some time. He imparts to her confidential information, in his indirect way of saying and doing things, as to the amount of his property,—an admission which he says he never made to any one else. The free interchanges in their correspondence resulted in her hastening to join her father in this country as soon as she got released from obligation to remain with her mother in England. Before she came here he had placed $1,500 at interest in the other country, the income of which she received for the benefit of herself and her mother; and on leaving this country, in 1888, for a visit across the water, he left a written order to a savings bank where he had $4,000 on deposit, besides accumulated interest due thereon, directing how the funds should be appropriated in case of disaster to him before his return, which paper may as well be incorporated herewith as reference will be made to it again; the paper running thus:

"dec 27, 1888

"to Androscoggin

"County Savings Bank

"Lewiston Maine

"to the President and Trustees

"and treasurer Mr. frank w. Parker

"I Thomas. Pemberton of Sabattus maine I am seting sail for England on the 27 of december 1888, and if I do Not Land Safe Back to Sabattus Please Pay the whole amount of my deposits and interest due me in this County Saving Bank to my order in Both Books No. 558, and No. 1487 for it All Belong to Thomas Pemberton Not to Annie Wooley. Please to Pay it to my daughter, Jane Pemberton Goulding at No-12 wilson Brook kingston Hyde, Cheshire near man-chester England By order of Thomas Pemberton Sabattus me "

In sustaining gifts causa mortis, where the Question of delivery is depending, it is a relief to feel that the donor had, for some time before the act was done, intended to make the gift; and it adds very much to the judicial confidence when that intention is manifested by some writing signed by the donor. Where the intent of the donor is proved under his own hand, the danger or likelihood of perjury is very far less than when the gift is claimed upon parol evidence, unsustained by any writing. A court would be disposed to examine the one case less critically than the other. See Brinckerhoff v. Lawrence, 2 Sandf. Ch. 400, 406.

It cannot be denied that Thomas Pemberton not only intended to bestow the most of his estate upon his daughter, but that he died with the belief that he had done so, unless we accept the theory of the defense, ably presented at the argument, that all his declarations apparently to that effect, made after that Sunday, referred to the paper lodged with the Androscoggin County Bank, with his supposed meaning of that paper, and not to the transaction testified to by the plaintiff. Her conduct after her father's death gives a good deal of plausibility, at least, to the defendant's position in that respect. Still the testimony of the two neighbors of the deceased, who were called in by him on the day before he died, and that of the attending physician, as to his declarations on this matter, corroborated as such testimony is by the same conception expressed in his letters, furnishes evidence of a contrary character, not to be easily overcome. At all events, the letters present impregnable proof that the donor, during a long period in his lifetime,...