Varick v. Hitt

• Decision Date: 29 January 1903
• Citation: 55 A. 139
• Parties: VARICK v. HITT.
• Court: New Jersey Court of Chancery

55 A. 139

VARICK

v. HITT.

Court of Chancery of New Jersey.

Jan. 29, 1903.

Bill by William W. Varick, administrator of the estate of Augusta A. Thompson, deceased, against Adrian Hitt, to determine the status of certain claims against the estate. Decree advised for complainant.

Isaac S. Taylor and James B. Vredenburgh, for complainant.

Andrew Gilhooly and R. L. Lawrence, for defendant.

STEVENSON, V. C. (orally). After the oral argument of this case, which occupied three days, I carefully examined and studied the voluminous briefs which counsel put in, and also went over the entire mass of testimony, some 2,000 pages, also examined the pleadings, and reached the conclusion which I mean now to announce; but at this date 1 may not be able to give a satisfactory, connected statement of all the reasons which underlie my conclusions. I shall only try, in a general way, to apprise counsel of the way in which I have dealt with this case as a whole, reserving for a written opinion the more detailed discussion of the testimony, in the event of an appeal being taken, which is to be expected in this case.

The bill, in its present form, was filed by Dr. Varick, as administrator with the will annexed of Augusta A. Thompson, deceased, and presents for investigation two entirely distinct matters. No objection has been taken, if any could be taken, to the trial and determination of these two distinct matters in one suit, and there is no embarrassment on the part of the court in dealing with them seriatim.

The first matter, in order of time, is this: Augusta A. Thompson was a' widow, who resided for many years in Jersey City. In the year 1885 she was about 55 or 58 years of age. She was living alone in her own house, and she owned other houses near by, which she let to tenants. She was in comfortable circumstances, having an ample support for herself, the extent of her income, as indicated, being about, as I recollect, $1,200 to $1,800 a year. She was a woman of pleasing address, youthful in appearance, in view of her age, a warm-blooded, perhaps somewhat impulsive, vigorous woman. She attended to her own affairs, and she seems to have been fully competent to take care of her own affairs. She had had two children by her deceased husband, who had died many years before, and I think the testimony indicates that she had lived for a number of years very much alone. Her relatives in 1885 consisted of a sister, I think two brothers, and quite a number of nephews and nieces. At this time the defendant, Adrian Hitt, appeared on the scene. He came from the West. His antecedents, his character, his various employments, will be referred to later on. He became acquainted with Mrs. Thompson in 1885, and from that time until November 7, 1887, he boarded at her house, or lived in her house at various intervals from time to time, but not continuously. He was a carpenter by trade at that time, and was endeavoring to maintain himself by running a carpenter shop, I think in a small way, in Jersey City. From November 7, 1887, until Mrs. Thompson's death on July 15, 1900, Mr. Hitt lived continuously in her house and boarded with her; that is to say, he lodged and had his meals with her. There was a brief period, in 1888 and 1889, I think, when he went back to the West, but he soon returned, and it seems quite plain that his going to the West was only a temporary interruption of this permanent residence that he had with Mrs. Thompson during these 13 or 14 years.

After Mrs. Thompson's death, Mr. Hitt made two claims against her estate in regard to the two matters on trial in this case. He produced what purports to be a promissory note, the body of which is in his handwriting, purporting to be signed by Mrs. Thompson, by which Mrs. Thompson promised to pay to his order, on demand, the sum of $32,000; and he claimed that this note represented an honest debt that was due to him. This note bears date September 5, 1899. The other claim which he made against the estate was a claim to the ownership of a promissory note given by one Thomson Kingsford to the order of Mrs. Thompson, bearing date, I think, September 9, 1899; and the note is for $10,000. It is made payable, I think, four or five years after date, but is payable, at the option of the maker, at any time. Mr. Hitt, after Mrs. Thompson's death, claimed that she gave him this $10,000 note as a gift. In the first of three successive answers which he filed in this cause, the second and third answers being brought about by exceptions filed to the prior answer in each case, Mr. Hitt states merely that Mrs. Thompson gave him this $10,000 note in her lifetime and failed to indorse it, not alleging that she gave it when she was in contemplation of death, as a gift causa mortis, leaving the inference that the gift was an ordinary gift inter vivos.

Without undertaking to recall or state the various proceedings that were had with reference to these two claims of Mr. Hitt, the final result was the filing of this bill on the part of the administrator, much in its present form, and with the last answer of the defendant in the form in which it now stands, presenting these two issues to the court: First, whether the note for $32,000 is a valid obligation of Mrs. Thompson's, or, in other words, whether any money is due to Mr. Hitt on that note; and, second, whether Mr. Hitt or the administrator is the lawful owner of the Thomson Kingsford note for $10,000. The answer at first objected to the Jurisdiction of the court—set up that the matters in this litigation were cognizable in a court of law. Subsequently, during the progress of the trial, the defendant moved to amend his answer by striking out this separate defense, which, as I recall it, was pleaded in the usual way, the defendant asking that he might have the same benefit of this defense as if he had presented it by a demurrer. Counsel for the defendant made this motion, and announced to this court that it was the desire of the defendant to have all the matters finally and conclusively determined in this cause. I shall not, therefore, spend much time in dealing with the question of the jurisdiction of the court in respect of either of these two controversies, although some questions might have been discussed, if the answer had stood in its original form, in regard to the jurisdiction of the court in reference to the $32,000 note.

As to the controversy over the Thomson Kingsford note of $10,000, there could be no question about the jurisdiction of the court. It was not only claimed to be a gift causa mortis by the defendant, but, if objection might be made to the filing of a bill to determine a controversy over a gift or an alleged gift causa mortis by the administrator, all doubt about the jurisdiction of the court was removed, as I have heretofore explained, when, by consent of both parties to the suit— and all parties to the suit as it then stood— the executor of Thomson Kingsford came Into court in the cause, by a petition, and took an order, by consent of all parties, to the effect that lie should deposit the full amount of the note in court, and take the note. This was done. The proceeding was practically an interpleader proceeding, and the order that was made was, in effect, a decree of interpleader. The remaining parties in the cause (because the bill, by consent, was dismissed as to the estate of Thomson Kingsford), the complainant and the defendant Hitt, by their pleadings have set up amply their contentions in regard to this note and the money which it represented. The jurisdiction of the court, therefore, to try the ownership of the note, is beyond all doubt. The fund is in court. Nobody can get this fund without the order or decree of this court; and therefore, for that reason, there can be no question as to the court's jurisdiction.

In regard to the note for $32,000, the case is different. The bill prays that the note be surrendered for cancellation. It may be that some of the main questions with regard to that note can properly and completely be tried in an action at law, and might have been tried in the action brought by Mr. Hitt against the estate on the note, which was enjoined, if I remember right, when this bill was filed. Was it not enjoined, Mr. Taylor?

Mr. Taylor: Yes, sir.

THE COURT: It may be that the principal questions might be tried in such a suit. But, as a matter of fact, there are a number of very important issues in regard to that note, in reference to its status, which involve necessarily a question of fraud. If the note is not a valid note, then it is a gross fraud, and the conduct of Mr. Hitt in undertaking to collect it is dishonest and fraudulent in a high degree. I think there are very many circumstances about this case which would probably sustain the jurisdiction of the court, and justify the court in trying the whole question—all the questions relating to that note—whether it is a forgery or not, whether there was any consideration for it, whether it was obtained by undue influence, and all the other controversies which have been litigated in this cause. But I shall not deal with the matter. I have not undertaken to examine the authorities which have been cited. I shall respect the wishes of the parties. I shall exercise the jurisdiction which both parties in this cause admit the court has in regard to this $32,000 note, and, if there is any error made in assuming such jurisdiction, the matter can be examined in the court above.

Now then, taking up these two questions of fact in order, the first matter to be determined is the status of the $32,000 note. That comes first in point of time, and the discussion of it comes first logically. I cannot see how any court could satisfactorily deal with the status of the alleged gift causa mortis without first establishing the honesty or the fraudulent character of this $32,000 note. It makes a great deal of difference, in endeavoring to ascertain whether Mrs....