Leek v. Wieand

• Decision Date: 01 February 1949
• Docket Number: 158/501.
• Citation: 63 A.2d 828
• Parties: LEEK v. WIEAND et al.
• Court: New Jersey Superior Court

63 A.2d 828

LEEK

v.WIEAND et al.

158/501.

Superior Court of New JerseyChancery Division.

Feb. 1, 1949.

Syllabus by the Court.

1. Where an executor brings suit upon a promissory note and offers such note in evidence after testifying concerning the maker's signature, R.S. 2:97-2, N.J.S.A., does not prohibit the defendant, upon cross examination, from questioning him concerning the physical aspect of said note, including other handwriting appearing thereon.

2. Where an executor brings suit upon a promissory note allegedly found among the assets, records and papers of decedent, R.S. 2:97-2, N.J.S.A., does not prohibit the defendant from cross examining him concerning other disclosures in the records and papers of decedent concerning said note.

3. Testator's private books of account are admissible as extrinsic evidence in an attempt to ascertain whether he intended to discharge certain debtors by the terms of his will.

4. A promissory note regarded as a specialty in the State where made, must be regarded as a specialty in New Jersey, where suit is here brought and the statute of limitations is pleaded as a defense.

5. Under the facts here present, held: that the deceased created a spendthrift trust, under the terms of which there could be no deductions from income of beneficiaries indebted to the estate, but that said estate is entitled to the collateral securing their debts.

Action by J. Raymond Leek, executor of the last will of Henry D. Wieand, deceased, against Bessie M. Wieand and others, seeking construction of the will, a judgment on certain notes, and a determination of the title to various securities.

Judgment in accordance with opinion.

Kirkman, Mulligan & Harris and Frank P. Mulligan, all of Atlantic City, for plaintiff.

Moore, Butler & McGee and Albert A. F. McGee, all of Atlantic City, for defendant Bessie M. Wieand.

Endicott, Dowling & Endicott and Allen B. Endicott, 3d, all of Atlantic City, for defendant Fidelity-Philadelphia Trust Co.

Edison Hedges, of Atlantic City, for defendant Bioren & Co.

Frank S. Farley and John W. Keogh, both of Atlantic City, for defendant Franklin D. Wieand, Jr.

HANEMAN, Judge.

The plaintiff, as executor under the last will and testament of Henry D. Wieand, deceased, seeks the construction of paragraph 2, sub-paragraph D of the last will and testament of the said Henry D. Wieand, in order to ascertain whether said paragraph discharges any and all debts due from and owing by Bessie M. Wieand, widow of decedent, and Franklin D. Wieand, Jr., brother of decedent, to the said testator at the time of his death.

In the event the determination of the above question is that the will does not discharge such debts, then the plaintiff further seeks a judgment on certain promissory notes made by Bessie M. Wieand and Franklin D. Wieand, Jr., to the value of the alleged collateral security therefor, and a determination of the title to various securities appearing in an account of Bioren & Co. in the names of the said Bessie M. Wieand or Franklin D. Wieand, Jr., or in the names of Franklin D. Wieand, Jr., or the deceased.

The defendant Franklin D. Wieand, Jr., sets up by way of defense in his answer that (1) the alleged promissory notes are barred by the statute of limitations; (2) release by the decedent; (3) the transactions involving the stock or other securities were purchased for him by the decedent as an outright gift, and (4) the letters issued to plaintiff were fraudulently obtained. At the time of trial, however, said Franklin D. Wieand, Jr., advised through counsel that he did not desire to participate further in the proceedings.

Bessie M. Wieand sets up by way of defense (1) a denial that she ever owed the decedent any sum of money; (2) that there was no consideration for her promissory note, and (3) the securities carried on the books of Bioren & Co. in her name were a gift to her, subject to the repayment to Bioren & Co. of the amount due said Bioren & Co. for the purchase thereof.

At the time of trial, J. Raymond Leek, the executor, was sworn as a witness and testified that he had found certain promissory notes among the assets of the decedent, said notes being made by Franklin D. Wieand, Jr., payable to the order of Henry D. Wieand. He testified as well that he had discovered among the assets of the decedent two certain promissory notes each in the sum of $891,275, payable to decedent and signed by Bessie M. Wieand. The executor testified that he was familiar with the signatures of Franklin D. Wieand, Jr., and Bessie M. Wieand and that the signatures appended to the said promissory notes were their respective signatures; that he had made a demand for payment of the several notes and such payment had been refused. The executor further offered two certain letters from Bessie M. Wieand, which read as follows:

‘Philadelphia, Pa.

‘April 25, 1941

‘Bioren & Co.

‘1508 Walnut St.

‘Philadelphia, Pa.

‘Gentlemen:

‘This is your authority to transfer to Mr. Henry D. Wieand, all dividends and interest received by you for my account.

‘Very truly yours,

‘Bessie M. Wieand.’

‘Mr. Henry D. Wieand,

‘109 South Franklin Avenue,

‘Margate, N.J.

‘Dear Sir:

‘In consideration of moneys advanced me at various times, I hereby assign to you all interest and rights or equities that now exist or may exist in the future in my accounts carried by the firm of Bioren & Co. in Philadelphia.

‘The securities and equities, which may vary from time to time, are your collateral as protection for the moneys and/or securities advanced to me.

‘These accounts with Bioren & Co. should not be an asset of my estate unless the equities shall be sufficiently large to liquidate my liability to you.

‘In view of the above, this agreement shall be a lasting one, or until your interest has been entirely satisfied.

‘A copy of this agreement is being forwarded to Bioren & Co. so that they shall be aware of your claims to the equities in my account.

‘Yours truly,

‘Bessie M. Wieand.’

The former of these letters was found in the files of Bioren & Co. and the latter among the papers of the decedent.

On cross examination of the executor, objection was made by his counsel to various questions propounded by counsel for decedent's widow, referring to the handwriting on the note made by Bessie M. Wieand, and as well to questions regarding an attempted ascertainment of whether any consideration was ever paid to Bessie M. Wieand. The latter questions required the plaintiff to testify concerning information obtained from other books and records of the decedent.

The theory upon which these objections were made was that under R.S. 2:97-2, N.J.S.A., which reads in part as follows, the defendant was barred from attempting to elicit such testimony:

‘When one party to any civil action is a lunatic suing or defending by guardian or when one party sues or is sued in a representative capacity, No other party thereto may testify as to any transaction with or statement by the lunatic while of sound mind or with or by the decedent, unless:

‘a. The guardian of the lunatic or the representative of the decedent offers himself as a witness on his own behalf, and Testifies to any transaction with or statement by his testator, intestate or ward, in which event the other party may be a witness on his own behalf as to all transactions with or statements by the lunatic while of sound mind or by the decedent, which are pertinent to the issue.’ (Italics mine.)

As a particular authority, the plaintiff cited Pontery v. Peters, 118 N.J.L. 581, 194 A. 180, 182. In that case the court held that the mere presentation of a promissory note found among the assets of a deceased and proof of demand of payment by the executor and refusal thereof was not such testimony by the representative of the deceased to a transaction as would serve to life the bar and permit the defendant to testify as to statements by the deceased.

Here, however, we are faced with a different situation, distinguishable from that present in Pontery v. Peters, supra.

The testimony which was received in the matter sub judice over objection, and subject to a motion to strike, was attempted to be elicited upon a cross examination of the executor of the testator. It concerned itself, first, with a cross examination of the executor concerning the physical condition of the promissory note about which he had testified upon direct examination. Second, it concerned itself with the question of whether the executor had any knowledge, which must have been obtained from the records of the decedent, which would have a bearing on the consideration for the promissory note.

It is to be noted at the outset that the statute in question inhibits or prohibits any ‘other party’ from testifying unless the door is opened by the action of the representative in offering himself as a witness on his own behalf and testifying to any transaction or statement by his testator. This section does not prohibit the representative from so offering himself as a witness, but serves as an inhibition only so far as any other party to the suit is concerned.

The purpose of this act, as has been stated in numerous cases, was to obtain ‘equality between the parties to such a suit, by silencing the one who may, by his own mouth, be able to testify to...