Govin v. Miranda

• Decision Date: 22 December 1893
• Citation: 35 N.E. 626,140 N.Y. 474
• Parties: GOVIN et al. v. DE MIRANDA.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 474

35 N.E. 626

GOVIN et al.

v.DE MIRANDA.

Court of Appeals of New York.

Dec. 22, 1893.

Appeal from supreme court, general term, first department.

Replevin by Felix St. Anna Govin, Emilia Govin, and Guillermina Govin against Luciana Govin de Miranda, individually and as executrix of Felix Govin y Pinto, deceased, for railroad bonds. From an order of the general term (24 N. Y. Supp. 1140) overruling defendant's exceptions, modifying the verdict, and directing judgment for plaintiffs, defendant appeals. Affirmed.

Stearns & Curtis,(Edward C. James, of counsel,) for appellant.

Abram Kling, for respondents.

EARL, J.

This action was brought to recover the possession of 19 bonds, of the par value of $1,000 each, of the Chicago, Burlington & Quincy Railroad Company, Iowa Division. The facts are undisputed, and are as follows: After the death of the testator there was found in a box in a safe at his office a sealed envelope, with the following indorsement thereon in Spanish: ‘A declaration in favor of Emilia, Felix, Guillermina Govin, and Luz Diaz y Sanchez, who lived in 147 E. 39th street.’ And in the envelope was the following paper, written in Spanish, which is translated by the defendant as follows: ‘There are in the possession of Ramon Estevez sixty thousand dollars in bonds of the United States of North America, which I hereby declare belong to the three brothers germain, Emilia, Felix, and Guillermina Govin, residents of this city, in the house No. 147 East Thirty-Ninth street.’ ‘There is, besides, in my safe, a parcel containing $29,000 in bonds of the Iowa Division Railroad, and out of them $10,000 belong to Luz Diaz y Sanchez, mother of the aforesaid persons, for covering a memorandum or note for the same sum subscribed by me, and the balance belongs to the aforesaid Emilia, Felix, and Guillermina, share and share alike. No person shall have the right to oppose this declaration, because it is founded on conscience and justice. I reserve this money only for what I may consider proper. New York, December eighth, one thousand eight hundred and eighty-three. [Signed] Felix Govin y Pinto. Acknowledged before me this, the 15th day of December, 1883. Jas. W. Hale, Notary Public, 4 Hanover Square.’ In the same box were found 38 4 per cent. bonds of the Chicago, Burlington & Quincy Railroad Company, Iowa Division, of $1,000 each; and these plaintiffs, being the persons named in the paper, claimed 19 of these bonds.

It does not appear in this action what relationship, if any, the plaintiffs bore to the testator; and no proof was given upon the trial that at the time of the execution of the paper, or at any time prior thereto, the testator owned the bonds mentioned therein. The case depends entirely upon the force and effect to be given to that paper as evidence, and, we think, it shows that 19 of these bonds belonged to the plaintiffs. They were found in his safe, and there is the unqualified declaration that they belonged to the plaintiffs. We must infer from that language that they came to the ownership of the plaintiffs in some legal way,-by purchase or gift from some one,-and, if there was nothing else in the paper qualifying the declaration, no one would dispute that it furnished absolute evidence of their ownership of the bonds. But the claim is made on the part of the defendant that the last clause in the declaration qualifies and weakens the force of the prior declaration that the bonds belonged to the plaintiffs. That is as follows: ‘No person shall have the right to oppose this declaration, because it is founded on conscience and justice. I reserve this money only for what I may consider proper.’ The whole paper must be construed together, and all its provisions harmonized, if possible. There is the unqualified declaration that they belonged to the plaintiffs, and that their claim to them was founded upon conscience and...