Scott v. Neeves

• Decision Date: 29 April 1890
• Citation: 77 Wis. 305,45 N.W. 421
• Parties: SCOTT v. NEEVES ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 305

45 N.W. 421

SCOTT

v.NEEVES ET AL.

Supreme Court of Wisconsin.

April 29, 1890.

Appeal from circuit court, Columbia county.

TAYLOR, J., dissenting.Curtis & Curtis, ( Geo. R. Gardner, of counsel,) for appellant.

Stark & Sutherland, for respondents.

COLE, C. J.

There does not appear to be any dissatisfaction with the construction which the learned circuit court placed upon the 12th, 14th, 15th, and 19th paragraphs of the will of Mrs. Scott. The executor accepts that construction as correct, and as a full and complete interpretation of the meaning of those paragraphs, and has taken no appeal from those portions of the judgment. So we are relieved from all consideration of these paragraphs of the will, and they may be passed without further comment.

The controversy in this court is mainly over the meaning of the third paragraph, which reads as follows: “Whereas, my brother George A. Neeves is indebted to me in the sum of ten thousand dollars, money loaned, it is my will that the said indebtedness be canceled, and my brother released from all demands and obligations in consequence of the same; and whereas, he is now also indebted individually to the estate of my husband, Thomas B. Scott, deceased, I direct that such individual indebtedness be paid for him out of my estate, so that he may be wholly released from the same, so far as any such indebtedness remains outstanding at my decease.” The question now is, what should be understood by the language used in the last clause of this paragraph? In the answer of the defendants W. B. and George A. Neeves, they insist that the intention of the testatrix was to provide for the payment of certain sums of money loaned to said George A. by Mr. Thomas B. Scott in his life-time, and for which the said Scott received notes made and signed by said George A. in the name of the defendant William B., his brother, as agent of said William, and that this was the indebtedness which the testatrix had in mind, and desired should be paid out of her estate to the estate of her husband. The facts in regard to the origin and history of this indebtedness, as found by the circuit court, are as follows: “For three or four years prior to December 11, 1883, and on that date, the defendant George A. Neeves was insolvent, and was doing business for his brother, William B. Neeves, as his agent, which facts were known to Thomas B. Scott and to the testatrix, Ann E. Scott. On the 11th day of December, 1883, Thomas B. Scott, the husband of the testatrix, Ann E. Scott, loaned to her brother, the said George A. Neeves, at her solicitation and request, the sum of $4,000, and received of him as security for such loan four certain promissory notes for $1,000, each bearing date December 11, 1883, and made and signed by said George A. Neeves, in the name of the defendant William B. Neeves, by the said George A. Neeves as agent. There was no understanding or agreement between the parties to said loan, when said notes were given to secure the same, that they were given, or were to be received, in payment for the money loaned. That said Thomas B. Scott afterwards spoke of and referred to said loan as a loan to said George A. Neeves, and always understood, prior to and at the time of his death, that the said George A. Neeves was to look after and pay said notes still outstanding, and relied upon him so to do. The money so loaned was used by said George A. Neeves in the business of the Grand Rapids Flouring Mill Company, a corporation of whose business he was manager. Two of said promissory notes given to secure the loan of $4,000 were paid by said flouring-mill company to said Thomas B. Scott prior to his death, and the remaining two notes were still outstanding and unpaid in the hands of the executors of said Thomas B. Scott, to the knowledge of said Ann. E. Scott, when her will was made; said unpaid notes being payable, respectively, eight and nine months after their date, with interest at eight per cent. per annum; and said notes are still outstanding and unpaid, and are in the possession of Walter A. Scott as trustee of the estate of Thomas B. Scott, deceased. The testatrix, Ann E. Scott, while she lived, and at the time she made her will, understood the said indebtedness to Thomas B. Scott for said loan, to secure which said promissory notes were so given in the name of William B. Neeves, to be the indebtedness of her brother George A. Neeves to her husband, Thomas B. Scott, in his life-time, and to his estate after his death; and she often and uniformly spoke of said indebtedness as the indebtedness of said George A. Neeves, and expressed in her life-time, after the death of her husband, the said Thomas B. Scott, a desire that the payment of said indebtedness should not be enforced by the executors of her said husband's will. The said George A. Neeves was not, at the date of the decease of said testatrix, Ann E. Scott, and had not been for many years prior to that date, indebted to said Thomas B. Scott or his estate in any manner or for any amount, either individually or otherwise, except for the balance of said $4,000 loaned and secured by said notes made in the name of William B. Neeves; and the said testatrix, at the same time she made her will, so understood, and had no knowledge of any other outstanding indebtedness of said George A. Neeves to the estate of her said husband, and had no other indebtedness in mind. The testatrix, Ann E. Scott, meant and intended by the individual indebtedness of her brother George A. Neeves to the estate of her husband, Thomas B. Scott, referred to in the third paragraph of her last will and testament, his indebtedness to the estate of her said husband for the balance unpaid on said loan of $4,000, to secure which said promissory notes had been so given by said George A. Neeves in the name of William B. Neeves, which indebtedness she understood to be, and was accustomed always to describe and speak of as, the individual indebtedness of said George A. Neeves, and she intended to and did, in and by said paragraph, direct that such indebtedness secured by said notes, so far as the same might remain outstanding at her decease, should be paid out of her estate.”

That there is much evidence in this case which sustains these findings, it seems to me, cannot well be denied. Even if they are not supported by the weight of testimony, there is no such clear preponderance of proof against them as will warrant this court in setting them aside. The argument of plaintiff's counsel, in his contention of the proper meaning of the third paragraph, proceeds largely on the assumption that the testatrix must have had in mind a legal indebtedness of George A. Neeves to the estate of Thomas B. Scott,--one which could be enforced by the estate in an action; and, unless such indebtedness in fact existed when the testatrix died, there is nothing to which the language applies. But this is not the correct view in which to consider the matter. If possible, we must ascertain the intention of the testatrix, and carry that intention into effect. Extrinsic evidence of the facts and circumstances which will explain the language, and show in what sense it was used by the testatrix, is admissible, though, of course, not to change the plain meaning of the words. The words “debt” and “indebtedness” are not always used in the same sense; that is, they do not always import a legal obligation on the part of one to pay another something due him. They often imply a mere moral or equitable obligation, as well as a strictly legal one. In what sense were the words “individual indebtedness” used in this paragraph? Must we assume that the testatrix referred to a strictly legal debt which George A. Neeves owed the estate of her husband, and to no other? Or had she in mind an indebtedness which she supposed George A. Neeves was legally or morally bound to answer for to the estate of Thomas B. Scott? In the interpretation of the language, it will not do to stop with the inquiry, did George A., in fact and in law, owe a debt to the estate of Thomas B. Scott which could be enforced by action in favor of the estate when the testatrix died? It is an established fact that George A. Neeves, as agent, gave the notes of his brother William B. Neeves for the loan when it was made. But whether George A. borrowed the money for himself or for his brother or to be used in the flouring-mill business, is a question we do not deem it necessary to determine. Certain it is that loan was obtained by him. It is equally certain that Mrs. Scott knew about this loan made by her husband to George; and there is good ground for the inference that the loan was made at her request, and that, when she executed her will, she knew that a part of the loan was unpaid. The evidence is clear and satisfactory that she regarded and spoke of this debt as the indebtedness of her brother George A. It is not probable that she had any accurate knowledge as to whether he was technically liable at law for the loan, but that she spoke of this debt as the debt of George is indisputable. To sustain this statement, it is only necessary to refer to her letter written to George, dated March 8, 1887, in which she tells him that a note against him for $3,500 had been found among her husband's papers, and asking him “if he was owing the estate anything besides that $2,000 and interest.” The $2,000 was the unpaid balance of the $4,000 loan; and the $3,500 note referred to was the Bull note mentioned in the case, which was no longer an existing indebtedness against any one. There is much testimony besides this item which shows that, in conversations, Mrs. Scott referred to this indebtedness for the balance of the loan to her brother George as his indebtedness; and there can be no doubt, upon the evidence, that this was the indebtedness which she had in mind when she made her will. It is suggested that she referred to the Bull note, but...