Lowery v. Erskine

• Decision Date: 12 March 1889
• Parties: LOWERY et al. v. ERSKINE.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 52

20 N.E. 588

LOWERY et al.

v.ERSKINE.¹

Court of Appeals of New York.

March 12, 1889.

Appeal from supreme court, general term, Second department.

Action by Hugh Lowery and James Ward, Jr., executors, and Mary A. Sears, executrix, etc., of the will of John Erskine, deceased, against Sarah Erskine, to recover two bonds and a promissory note alleged to be the property of plaintiffs' testator. Judgment for plaintiffs as to two, and for defendant as to the other, of the securities sued for. Both parties appealed to the general term, which reversed so much of the judgment as was in favor of plaintiffs, and affirmed the residue. Plaintiffs appeal.

Scott & Hirschberg, for appellants.

E. A. Brewster, for respondent.

RUGER, C. J.

The appeal in this case requires us to examine and determine the questions of fact involved in the issues tried. The action was brought by the executors of John Erskine to recover from the defendant three several choses in action, alleged to have been the property of their testator, and to have been unlawfully taken by her from the executors. The answer denied that such securities were the property of John Erskine, and alleged the title thereto to be in the defendant. The trial court, after a hearing, rendered judgment for the plaintiffs for two of the items of property specified, and for the defendant upon the remaining claim. The defendant appealed to the general term, upon exceptions to the findings, from the whole and every part of such judgment, and the plaintiffs from that part which favored the defendant. The general term, upon questions both of law and fact, reversed so much of the judgment as was in favor of the plaintiffs, and ordered a new trial thereof, and affirmed so much as favored the defendant. From this judgment the plaintiffs appealed to this court upon a stipulation for judgment absolute in case of affirmance.

The general term, having authority to hear appeals both upon the law and the facts, must be deemed to have determined upon errors of fact, if that be necessary to sustain their judgment. Section 1338, and subdivision 1, § 1347, Code Civil Proc.; Verplanck v. Member, 74 N. Y. 620. The most important issue of fact made by the pleadings and tried by the court was whether the moneys for which the securities in dispute were given, belonged to the testator or to the defendant. The trial court found that they were the property of the testator, but ordered judgment for the defendant for one of the securities in dispute, upon the ground that a valid transfer thereof had been made to her by the executors after the testator's death. The finding that the moneys loaned were the property of John Erskine was excepted to by the defendant, and it must now be deemed to have been reversed by the general term upon her appeal. The important question before us is, therefore, whether this reversal was authorized by the evidence. If it was, the same consideration controls the disposition of the order of affirmance, since the evidence upon the disputed question of fact applies with equal force to each of the securities in question. The rule governing appellate tribunals in reviewing questions of fact is stated in Baird v. Mayor, 96 N. Y. 577, to be: ‘To justify a reversal it must appear that such findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusions.’ See, also, Crane v. Baudouine, 55 N. Y. 256;Westerlo v. De Witt, 36 N. Y. 344.

Having this rule in view, we proceed to an examination of the evidence. The proof showed that the testator was a clergyman, residing in a country village in Orange county, N. Y., and in 1871 visited his brother, the defendant's father, in Ireland. Upon his return to this country he brought back the defendant, then a young girl of about 16 years of age. Between that time and the death of her uncle, in 1885, she resided most of the time with her brother, at St. Louis, and elsewhere, at a distance from the testator. After the death of her uncle, she, upon request, visited Mrs. Sears, one of the executors, with whom and her mother the testator resided at the time of his death, and was then shown the securities in question, with some others, and also a paper purporting to be signed and sealed by the testator, containing a declaration of his wishes in regard to the disposition of the securities exhibited. The securities here in dispute consisted of (1) a bond and mortgage for $2,500, executed by Joseph Clineman to Sarah Erskine, dated March 1, 1882, and recorded May 17, 1882; (2) a bond and mortgage executed by Ann E. Constable and others to Sarah Erskine, dated December 28, 1883, and recorded February 5, 1884; (3) a promissory note made by one Jameson, dated February 1, 1884, payable to Sarah Erskine, for $100. The plaintiff Sears testifies that the declaration of testator's intentions, together with the Schoonmaker mortgages, referred to in such declaration, were given to her August 22, 1885, and that she retained them in her possession until testator's death, September 26, 1885; that the other securities were placed in a safe, of which she had the key, and remained there until after the testator's death, when she took them into her possession. There was an inside safe where the testator kept his private papers, and of which he kept the key. It also appeared that each of these securities was given at the time they respectively bear date, in consideration of loans of money negotiated by the testator, and that such moneys were paid to the respective borrowers by him. It also appeared that Erskine stated to Clineman and Jameson, two of the borrowers, at the time of their respective loans, that the money loaned belonged to or was the money of his niece, the defendant, and to another witness; ‘that he had taken a mortgage of $1,000 on Mrs. Constable's farm, and had the papers made out in Sarah Erskine's name. * * * I have given it to her, and I expect to do more for her than that.’ It also appeared that the defendant's father, at the time she left Ireland, delivered to the testator a sum of money, which he described to be the defendant's portion of his property. The defendant was never informed of the amount by either her father or uncle, and it did not appear affirmatively in the case what the amount was. The testator never rendered any statement to the defendant of his transactions in her name, and she was ignorant of their extent, or even of their existence, until after his death.

Two witnesses testified to declarations made to them by the testator about the time he returned from Ireland, and at other times, that defendant's father had given him money in trust for Sarah. Two of the plaintiffs testified to declarations made to them by their testator, one upon an application by him to borrow money, that ‘he had some money he was putting out, of Sarah Erskine, his niece,’ and the other, that he told him ‘the amount of the mortgages belonging to Miss Erskine,’ and that ‘the mortgages that were in Miss Erskine's name he meant them for her;’ that he did not want them taken off of record. To another person, a brother clergyman, he said, a year or so before his death, ‘that he had made provision for his niece in St. Louis. He had given her, or had a bond and mortgage in her name to the amount of-I am not positive, but I think-$3,000. That he had put it in this way in order that at his death it might be hers, so she could receive it without going through the hands of executors or the uncertainties of a will.’ To another witness, who borrowed of him $800, in 1882, he stated that the money loaned ‘was Sarah Erskine's money.’ It also appeared that none of these securities, standing in the name of Sarah Erskine, were appraised or inventoried by the executors, although they were then in their possession, and upon the trial each of the executors denied giving authority for the commencement of this action. In 1882 the testator wrote to the defendant, at St. Louis, several times, urging her to send him a power of attorney authorizing him to transact business in her name, which she then declined to give. In 1883, however, upon a visit to him in Orange county, she was persuaded to execute a power of attorney to the testator, appointing him ‘my true and lawful attorney for me, and in my name, place, and stead, and to my use, to exercise the general control and supervision over all my lands, tenements, that I now own; to grant, bargain, and sell any of my real estate; to govern and control all bonds and mortgages; to sell the same, and transfer the same as he may deem just and proper; to take charge of all personal property, bank-account, and other personal property that he may now have in his possession.’

The inference to be...