Muir v. Gregory

• Decision Date: 16 February 1909
• Docket Number: 151.
• Citation: 168 F. 641
• Parties: MUIR v. GREGORY.
• Court: U.S. Court of Appeals — Second Circuit

168 F. 641

MUIR v. GREGORY.

No. 151.

United States Court of Appeals, Second Circuit.

February 16, 1909

Lanier McKee (William H. Thitchchener, of counsel), for appellant.

Marshall Moran & Williams, for appellee.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

LACOMBE Circuit Judge.

The suit involved the ownership of certain bonds, par value $50,000; complainant claiming their proceeds which are in the possession of defendant. As presented on the argument his claim of title is as follows: The original owner was Edla J McPherson, a widow. On March 30, 1900, she executed an assignment of all her right, title, and interest in the bonds to her daughter, Edla McPherson Muir, the wife of complainant. The mother had for some time been estranged from her daughter, because of her marriage, and had expressed herself with great bitterness when commenting on her daughter's conduct; but before the assignment they had become reconciled. The assignment gives a detailed description of the bonds, adding:

'All of which were in my safe deposit box in the Jersey City Safe Deposit Company, and should be there now, unless removed by George W. Gregory, who has access to said safe deposit box.'

Gregory now deceased, was Mrs. McPherson's brother and the husband of defendant. Mrs. McPherson did not physically deliver the bonds to her daughter.

It is conceded that at the time they were not in her possession, having been removed from the box by Gregory. Mrs. Muir subsequently died, leaving a will in favor of her husband, who brings this suit.

The answer to his claim is that at the time of the assignment Mrs. McPherson had no right, title, or interest in the bonds, which had theretofore become the property of George Gregory by gift fully completed. The evidence in support of this contention is as follows: The box was rented by the mother in March, 1898; it being arranged that herself, her daughter, and Gregory should have access to it, but she and Gregory alone qualified. Gregory had been in her husband's employ for some years before the latter's death (in 1897), and thereafter became her confidential man of business and attended to her affairs, for which services she continued to pay him. His principal support was the money thus received from the McPhersons. On March 28, 1898, she executed a codicil to her will which contained the following clause:

'First. I give and bequeath fifty thousand dollars in bonds of which I shall die possessed, at their actual market value at the time of my decease, irrespective of their par value, to my brother George W. Gregory for his own use.

'In lieu of $2000 income.'

She retained this codicil in her own possession, and it may be inferred that it was subsequently destroyed by her. It has never been probated. At this time the relations of the mother and daughter were friendly. Early in July, 1898, the daughter eloped with complainant. The mother was greatly displeased, revoked her daughter's authority over the safe deposit box, and at once sailed for Europe. The record contains many letters written by Mrs. McPherson from abroad, and many hearsay statements as to what she said at different times. We do not express any opinion as to the competency of much of this testimony, which was put in by complainant, preferring to dispose of the case upon the record as he has made it.

On August 11th Mrs. McPherson wrote to Gregory:

'London, August 11, 1898.

'If you die first, I will provide for your wife. She shall have furniture, etc., also from 1014 Vermont Ave. That clause must be put in my will when I return. The $50,000 now invested in the commission business must be put at interest when the business is closed out, the interest to be yours for life, as well as the money left you absolutely. After your death the principal will be given in charity-- unless Edla lives, remarries in her own rank and has children. We will arrange that unless you think it had better be done immediately when I return.

Edla J. McPherson.'

Three subsequent letters are as follows:

'Paris, November 24, 1898.

'Dear George: I wish to transfer to your account the following bonds:

3d Ave. R.R. . . . $15,000

Brooklyn Trolley . . . 10,000

Standard Gas Co. . . . 10,000

Edison Electric (Brooklyn) . . . 10,000

3d Ave. R.R. . . . 5,000

$50,000

'Yours very truly,

Edla Jean McPherson.' 'Nov. 28th.

'Dear George: In looking over my note book where I have recorded the bonds sent you I find I have written 3d Ave. R.R. twice, one for 15,000 and again for 5,000. I may not have made the same mistake in the transfer sent to you, but I have got it in mind that I have blundered as I was so ill that I could barely sit up to transact the necessary business, and so hasten to send you a second paper, which you can destroy, if the original is all right. I have made over all the bonds to you in a paper which dated before my death will be yours after I die-- and will be valid-- giving you the use of all the money invested in that way. I shall trust to your honor to leave anything outside of the 50,000 which is yours outright-- to be left to your wife if she outlives you-- in some form of memorial to John or Greggy as you see fit. They have been so outraged my poor dead their money used so scandalously and criminally that you and I who really loved and honored them must make amends. If I live to return I shall reduce the fund that goes to her under my will to a narrow sum and give the rest to you for life-- afterwards in memoriam.

'Yours hastily,

'E.' 'Nov. 28th, 1898. Paris.

'Dear George: I transfer to your personal account the following bonds-- the total:

15,000 Chicago, Mil. & St. Paul.

5,000 3d Ave. R.R.

10,000 Brooklyn Trolley.

10,000 Standard Gas Co.

10,000 Edison Electric (Brooklyn).

$50,000

'Fifty thousand dollars which I give you instead of that sum named in my will. I have revoked the bequest by codicil made here the 26th of November 1898.

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