Holmes v. Roper

• Decision Date: 16 January 1894
• Citation: 141 N.Y. 64,36 N.E. 180
• Parties: HOLMES v. ROPER et al.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 64

36 N.E. 180

HOLMES

v.ROPER et al.

Court of Appeals of New York.

Jan. 16, 1894.

Appeal from supreme court, general term, fourth department.

Proceeding by Jerome D. Holmes against William E. Roper and another, as administrators of the estate of Job Holmes, deceased, to establish a claim against said estate From a judgment of the general term (23 N. Y. S. 1152, mem.) affirming a judgment of the special term confirming the report of the referee disallowing the claim, plaintiff appeals. Affirmed.

S. D. Halliday, for appellant.

Simeon Smith, for respondents.

O'BRIEN, J.

The defendants are the personal representatives of Job Holmes, who died intestate on the 7th of July, 1887. The plaintiff is a nephew of the deceased, and son of Rufus Holmes, a brother of the intestate. Within the period for presentation of claims against the estate of deceased persons, the plaintiff presented to the defendants a claim based upon an instrument of which the following is a copy: ‘$2,000. Candor, September 14, 1885. For value received, I promise to pay Jerome Holmes two thousand dollars thirty days after my death. Job Holmes.’ The claim was disputed by the defendants, and, having been referred under the statute, the referee reported in favor of the plaintiff. The confirmation of the report was resisted upon a case and exceptions which contained an application for a new trial upon newly-discovered evidence, but the report was confirmed. The general term, however, upon appeal, set aside the report, and granted a new trial. On a second trial the referee reported against the claim, and his decision has been sustained in the courts below. As there were no pleadings, the nature of the defense must be ascertained from the evidence, and that indicates that the claim was resisted upon three grounds: (1) That the instrument was a forgery; (2) that, if genuine, it was procured by duress and fraud; (3) that the note was in the nature of a gift, and wholly without consideration. The referee found upon the evidence that the instrument was signed and delivered without consideration, and for the purpose, on the part of the deceased, of providing for a gift to the plaintiff of $2,000 out of his estate. It is well settled that an executory promise of this character, without consideration, and intended to operate as a gift after death, cannot be enforced. Harris v. Clark, 3 N. Y. 93. And there is no claim made upon this appeal that the legal conclusions of the referee were erroneous. Nor is it urged that this court can review the findings of fact upon which the conclusion was based, but, on the contrary, it is frankly admitted that the evidence was of such a character as to render the finding conclusive upon the plaintiff here. The learned counsel for the plaintiff has directed the whole force of his argument against certain rulings of the referee in the course of the trial, to which exceptions were taken. The principal question arises upon the admission of certain declarations of Rufus Holmes, made after the note, of which the one in suit was a renewal, was given. The plaintiff attempted to establish the validity of his claim upon the theory that the deceased was indebted to Rufus in the sum of $2,000 in the fall of 1884, and that this debt was paid by giving the note to the plaintiff with the consent of Rufus, his father, and that on September 14, 1885, that note was taken up, and the one in question given in its place. These facts, if proven, would establish a valid consideration for the note, as the transaction would amount to a gift of the debt by Rufus to his son, the plaintiff, and the delivery of the note in payment of the same by the deceased. The existence of the alleged debt, or any debt whatever, from the deceased to his brother Rufus became, therefore, a material and important issue at the trial. The learned counsel for the plaintiff is doubtless correct in his contention that the legal relation and situation of the parties are the same as if the deceased had given the note directly to his brother Rufus, and the latter had immediately transferred it to his son, the plaintiff; and that, under such circumstances, the admissions or declarations of Rufus after the transfer of the note and all of his interest in the debt, are not admissible against the plaintiff in a proceeding for the collection of the claim. The general rule is that a former owner of a chattel or a chose in action, who has transferred his interest to another by an absolute sale or assignment, cannot, by his subsequent admissions, affect the right of the purchaser. In some cases such admissions may be admissible, but only where there is an identity of interests between the assignor and assignee which is deemed to exist where the transfer is merely colorable or nominal, and where a party claims through another by representation, and the declaration is not excluded by some other rule of evidence. Van Gelder v. Van Gelder, 81 N. Y. 625;Hutchins v. Hutchins, 98 N. Y. 64;Gardner v. Barden, 34 N. Y. 435;Christie v. Bishop, 1 Barb. Ch. 115; Fitch v. Chapman, 10 Conn. 8; Smith v. Webb, 1 Barb. 234;...