In re Van Alstyne

• Citation: 207 N.Y. 298,100 N.E. 802
• Parties: In re VAN ALSTYNE et al.
• Decision Date: 04 February 1913
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 298

100 N.E. 802

In re VAN ALSTYNE et al.

Court of Appeals of New York.

Feb. 4, 1913.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings to settle the account of Laura L. Van Alstyne and Thomas B. Van Alstyne, as executrix and executor of the will of Thomas J. Van Alstyne. From an order of the Appellate Division (147 App. Div. 411,132 N. Y. Supp. 203) modifying a decree of the Surrogate Court, Thomas B. Van Alstyne appeals. Reversed, and decree of the surrogate affirmed.

Thomas F. Wilkinson, of Albany, for appellant.

Charles Oakes, for respondents Laura L. Van Alstyne, individually, and as executrix, and for William T. Van Alstyne.

CHASE, J.

The testator died October 26, 1903, leaving him surviving Laura L. Van Alstyne, his widow, hereinafter referred to as the respondent, Thomas Butler Van Alstyne, the appellant, a son by a former marriage, and William T. Van Alstyne, a son by the marriage with the respondent. By his will the testator gave to William T. Van Alstyne $15,000, and in the paragraph making the gift preceded the statement thereof by a recital as follows: ‘Having made advances or given my son, Thomas Butler Van Alstyne, since his marriage and since he left my home, sums of money exceeding in all more than $14,000. I secondly give. * * *’ He gave the respondent all his household furniture, plate, pictures, piano, rugs, jewels, and other articles used in his house. All the rest, residue, and remainder of his property he gave to the respondent and his two sons in equal shares, except that the share of the respondent at her death or remarriage he gave to his son, William T.

Prior to the marriage of the respondent with the testator, she was the owner of certain real property in Washington, D. C. In 1885 she made certain improvements to such property, and to pay in part therefor on December 30, 1885, borrowed $19,200 on three notes. Two of the notes for $10,000 and $5,000, respectively, were given to a trust company. They were each payable to the order of the trust company three years from date, and were each secured by a trust deed of her said real property made by the respondent to named trustees. The third note was for $4,200, and was given to the father of the respondent. It was payable to his order five years from date and secured by a similar trust deed. On February 17, 1886, the respondent married the testator, and thereafter resided in Albany. Her real property in Washington was left in charge of the trustees named in said trust deeds as her agents, and they collected the rents, paid therefrom the taxes, insurance, interest on said notes and accounted to her from time to time at Albany. On March 9, 1887, the testator paid to the trust company the principal and interest then unpaid on the $5,000 note, on January 17, 1888, on the $10,000 note, and on January 1, 1889, to the respondent's father on the $4,200 note. At the time the amounts were so paid for the several notes, the testator took them into his possession with the trust deeds held as collateral thereto, and said notes were each at the time indorsed by the payee thereof with a direction as follows, viz.: ‘Pay to the order of Thomas J. Van Alstyne without recourse.’ Neither of said notes was due at the time they were so transferred to the testator, and nothing had then been paid on the principal of either of them. Commencing October 2, 1888, the checks received by the respondent from her agents in Washington were indorsed by her and delivered to her husband, who put the amount thereof to his personal account. All of the receipts of the real property so forwarded to her by her agents were delivered to her husband, including the check of July 1, 1903, which was the last check so received prior to his death, and the aggregate amount received by him during that time was $15,006.52. After the testator's death the notes and trust deeds were found in a box in the vault of a safe deposit company in Albany, which had been rented by the testator in the name of himself and the respondent and in which was the testator's will and private papers.

The question between the parties on this appeal is whether the amounts unpaid on said notes, after crediting said receipts, are assets of the estate of the testator or whether the amounts paid to the owners of such notes, respecitively, by the testator were consummated gifts by him to the respondent or were so paid in pursuance of an enforceable contract by which he agreed with her to pay and discharge such notes. The respondent testified that the testator told her to write to her agents at Washington to retain the rent towards paying off the debt. She further testified that he said to her: ‘I want you to write to Tyler & Rutherford (said agents and trustees) to turn those notes and trust deeds over to me. I want to pay that debt off, for I will have no debt standing in my wife's name. I said, ‘How shall I write it?’ He said, ‘I will show you how.’ I said, ‘If you are so kind and generous as to do that, I expect to turn the rentals over to you.’ He said, ‘That is no more than I shall expect.’ Then he went to the library and brought in a slip of paper. He said, ‘You write that.’ I wrote it, the letter. I gave him the letter and asked him if it was right. He said, ‘Yes; that's all right.’ He took the letter and also the slip of paper and went out.' It does not appear what, if anything, was ever done with such letter. The respondent further testified that, prior to the testator's hiring the safe deposit box in their joint names, he had told her that she would be named as executrix in his will, and she testified that she asked him if he was sure that he had the papers concerning the payment of the notes and trust deeds in shape so that she would have no trouble with them thereafter, and that he replied, ‘I will fix that. You won't have any trouble about that. These notes are outlawed.’ She testified that on August 2, 1902, after such conversation, her husband asked her to go with him to sign her name as joint owner in the safe deposit box, and that, while at the safe deposit building he said, ‘Your trust deeds and other papers will be in that box.’ She further testified that he gave her a duplicate key of the box, but it was found in his desk among his effects after his death. She never saw the box during his lifetime. She also testified that he said to her that, ‘William, his son, should have $15,000 before Butler or she had a cent because he had already laid out large sums of money for Butler and her.’ William T. Va Alstyne testified that his father told him that he had given his mother about $20,000; and that at another time, in the winter prior to his father's death, he asked him if his mother did not owe that money, and that he replied: ‘No; of course, she doesn't. When you give a person a thing, they don't owe it back to you; of course, not. I don't hold that against your mother. I gave it to her.’ A sister of the respondent testified that the testator once said to her that he had paid the indebtedness securee by the mortgage on his wife's property. The respondent contends that, when the safe deposit box was opened after his death, the notes and trust deeds were found, among other things, in a package in which was the title deed to the premises mentioned in the trust deeds, certificate of title, papers relating to tax matters and other personal papers of respondent, as well as papers belonging to a sister of the respondent which had been turned over to the testator for safe-keeping. The respondent also testified that she never saw the notes or trust deeds, or either of them, from the time she executed them until after his death. She did not know when they were placed in the safe deposit box.

[1] The conversation in which he told her to have the agents retain the rents towards paying the debt took place soon after their marriage; but for some reason that does not appear nothing was paid by the agents on the principal of either note, although the last note was not transferred to the testator until January 1, 1889, about three years after the marriage. The conversation relating to the agents turning the notes and trust deeds over to the testator could not have taken place immediately in advance of his obtaining possession of all of them because he paid the amount due on the notes at different times. The first one was paid March 9, 1887, and the last one not until January 1, 1889. It is apparent that the testimony of the respondent, relating to the conversation with the testator is made up of fragments of different conversations. The respondent's counsel in his brief asserts that, after the conversation relating to turning the notes and trust deeds over to the testator, the respondent indorsed and delivered to her husband all checks for rents received from her agents at Washington. It appears, affirmatively, that the first check was so received October 2, 1888, or about a year and a half after the first note had...