Kirkpatrick v. Kirkpatrick

• Citation: 151 A. 48
• Parties: KIRKPATRICK et al. v. KIRKPATRICK et al.
• Decision Date: 24 June 1930
• Court: New Jersey Court of Chancery

151 A. 48

KIRKPATRICK et al.

v. KIRKPATRICK et al.

Court of Chancery of New Jersey.

June 24, 1930.

Suit by Andrew Kirkpatrick, individually and as executor and trustee of J. Bayard Kirkpatrick, deceased, and another, against John Bayard Kirkpatrick, Jr., and others.

Decree for complainants.

John E. Toolan, of Perth Amboy, and Freeman Woodbridge, of New Brunswick, for complainants.

Walter C. Sedam and Henry C. Berg, both of New Brunswick, for defendants.

BERRY, Vice Chancellor.

This bill involves the title to and ownership of two portraits, one of Colonel John Bayard, of Revolutionary fame, and the other of his wife, Margaret Hodges Bayard, by the famous artist, Wilson Peale, and seeks an accounting by the defendant John Bayard Kirkpatrick, Jr., of the proceeds of the sale of said portraits.

The portraits in question became the property of the decedent, J. Bayard Kirkpatrick, Sr., under the will of Mary Ann K. How in July, 1887, and they hung upon the walls of the dining room in the Kirkpatrick home in New Brunswick from that time up to the time of his death on September 12, 1912, and thereafter for some time, when they were removed by the defendant, J. Bayard Kirkpatrick, Jr., and taken to his home in Highland Park. The exact time of removal is in dispute. Defendants say about one month after testator's death and the complainants say about six months thereafter; but, as I view the matter, the exact date of their removal is not important. At the time of the elder Kirkpatrick's death, the portraits were considered of no particular value except as heirlooms, but in 1928 the defendant John Bayard Kirkpatrick, Jr., sold them for $25,000, and they are now a part of the collection of this famous artist in the Philadelphia Art Museum, to which it is alleged they were sold for $100,000. J. Bayard Kirkpatrick, Sr., left a will dated November 15, 1905, by which he left all his property to the complainant Andrew Kirkpatrick and the defendant John Bayard Kirkpatrick, Jr., as executors and trustees in trust to pay the income to his widow, the defendant Mary E. Kirkpatrick, for life, or during her widowhood, and after her decease or remarriage to his children then living. The complainants claim that the portraits were the property of the testator at the time of his death and passed by his will, and that their sale by the defendant John Bayard Kirkpatrick, Jr., was in violation of the trust imposed upon him by that will. The defendants deny this, and claim that the portraits were the property of the defendant John Bayard Kirkpatrick, Jr., and that they had been given to him by his father during his lifetime. The complainants, the defendant John Bayard Kirkpatrick, Jr., and Laura B. Kirkpatrick, are children of the testator, and the defendant Mary E. Kirkpatrick is his widow, Laura B. Kirkpatrick and Mary E. Kirkpatrick refused to join in this suit as complainants, and were therefore made defendants because of their interest in the controversy, evidently pursuant to rule 5 of this court. It is plain that John Bayard Kirkpatrick, Jr.'s, title to the portraits is based upon an alleged gift inter vivos. The property was in the possession of the testator at the time of his death, and the presumption is that he owned it. The burden of proving title in another is on him who asserts it. Therefore, if the alleged gift is not established by competent evidence in this suit, the complainants are entitled to the relief prayed for by the bill.

John Bayard Kirkpatrick, Jr., was a member of his father's household until July 1, 1912, when he moved into his new home after his marriage. His father died two months and twelve days thereafter. The only testimony tending to establish a gift of these portraits was that of the defendant Mary E. Kirkpatrick and Laura B. Kirkpatrick, which was received tentatively over the objection of the complainants that it was incompetent under section 4 of the Evidence Act, and the testimony of Bessie M. Kirkpatrick, the wife of the defendant John Bayard Kirkpatrick, Jr. The testimony is to the effect that the portraits were always considered to be the property of the son Bayard, and that on numerous occasions during his lifetime his father had said, "I have given those portraits to Bayard," "Those portraits are Bayard's," or words of similar import. An issue as to the exact testimony on this point is raised in the briefs of counsel, and I therefore quote from the transcript the entire testimony respecting statements or transactions of the decedent evidencing a gift inter vivos, as follows:

Mary E. Kirkpatrick, the widow, testified that the testator had said: "These portraits are Bayard's; I have given them to him."

"These portraits—I have given these portraits to Bayard."

Laura Kirkpatrick, testator's daughter, testified as follows:

"I heard him (testator) say they belonged to Bayard."

"He said these pictures are Bayard's."

"He used to refer to them all the time as Bayard's."

"These pictures are Bayard's."

Bessie M. Kirkpatrick testified that on one occasion, long prior to her marriage, when she was dining in the Kirkpatrick home, Bayard's father referred to the portraits, and "when we had finished dinner Mr. Kirkpatrick told me the pictures—he pointed out the pictures to me and said—told me all about them, and told me who they were, pointed them out, and said they were Bayard's pictures and he had given them to Bayard and supposed that they would be taken to our house after we were married."

And again: "He said to everyone in the house that those pictures were Bayard's."

"He always said—he said that night—he pointed to them and he said 'I have given these pictures to Bayard.'"

"I suppose some day they will be over at your house."

It is conceded that there was never any manual delivery of the portraits by the father to the son, but it is claimed that such delivery as they were capable of was had, and that, in view of the fact that Bayard was a member of his father's household at the time of the alleged gift, no actual manual delivery was necessary.

But two questions need be considered in this suit: First, the competency of the testimony of Mary E. Kirkpatrick and Laura B. Kirkpatrick; and, second, whether the evidence submitted herein establishes a gift inter vivos. I will consider these questions in the order stated.

I. The competency of the testimony of Mary E. Kirkpatrick and Laura B. Kirkpatrick was challenged by objection of counsel at the final hearing that it was not competent under section 4 of the Evidence Act (P. L. 1900, p. 362, 2 Comp. St. 1910, p. 2217), and the point was reserved.

It is conceded that neither Andrew, the complainant, nor the defendant Bayard, was competent to testify to any transactions with, or statements by, the decedent. Lodge v. Hulings, 64 N. J. Eq. 761, 53 A. 564; Murphy v. Schmidt, 80 N. J. Law, 403, 79 A. 293. But it is contended that neither the mother nor the daughter were necessary parties to this suit, and their joinder was only for the purpose of invoking the rule of evidence upon which the objection is based. Of course, if that were so, they would not by such joinder be disqualified to testify on this point. Harrison's Administratrix v. Johnson, 18 N. J. Eq. 420, 425. Nor could they have been qualified as witnesses merely by joining them as parties defendant if, as parties complainant, they would have been disqualified. Kempton v. Bartine, 59 N. J. Eq. 149, 44 A. 461, affirmed 60 N. J. Eq. 411, 45 A. 966. See, also, Platner v. Ryan, Executor, 76 N. J. Law, 239, 69 A. 1007. "In enforcing the object of the statute, courts will look at the substance of the cause and observe, through the forms of the procedure, who are the real parties whose interests are antagonistic, and then will see that when one is put at a disadvantage by death, the other shall not be permitted to profit by the misfortune of his adversary." Smith v. Burnet, 35 N. J. Eq. 314, 321.

The best way to determine whether or not the testimony of a party is competent in matters of this kind is to inquire whether, if he were on the opposite side of the controversy, he could testify over objection. If as complainant he would not be permitted to testify, then the changing of his position to that of defendant does not make his testimony any the more competent. Here, if the widow and daughter were complainants, they would be precluded from testifying to transactions of, or statements by, the testator. The rule is the same whether or not their joinder as parties defendant is by choice. If the complainant could not qualify them to testify in his behalf by putting them in as defendants, he can no more qualify them to testify against him. The language of Vice Chancellor Van Fleet in McCartin v. Traphagen, 43 N. J. Eq. 323, at page 327, 11 A. 156, 158, is peculiarly applicable to the case at bar. In that case, after referring to the nominal position of the parties, he said:

"Their position on the record is that of defendants, though their interest in the litigation is that of complainants. In respect to the whole subject-matter of the litigation, they have the same interest exactly that their brother, the complainant, has. * * * This suit was brought as much for their benefit as it was for the benefit of the complainant. * * * There can be no doubt that if the three Miss McCartins had taken their true position in the litigation; if they had placed themselves where their interests and their feelings place them; where they are in everything except the barest form,—they would have been incompetent to give the evidence objected to. Though they are defendants in' form, they are complainants in fact. If a decree goes in favor of the complainant, it must, ex necessitate, give the same measure of relief to each of these defendants that it does to the complainant * * *."

The fact that upon affirmance of the decree in that suit (45 N. J. Eq. 265, 17 A. 809) this language of the eminent Vice...