Williams v. Williams

• Decision Date: 04 December 1912
• Citation: 85 A. 43,109 Me. 537
• Parties: WILLIAMS v. WILLIAMS.
• Court: Maine Supreme Court

85 A. 43

109 Me. 537

WILLIAMS

v. WILLIAMS.

Supreme Judicial Court of Maine.

Dec. 4, 1912.

On Motion and Exceptions from Supreme Judicial Court, Knox County, at Law.

Action of trover by Cora Williams, executrix, against Maynard S. Williams. A verdict was rendered for defendant, and the case is before the law court on motion and exceptions by plaintiff. Motion and exceptions sustained.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, and KING, JJ.

A. S. Littlefield, of Rockland, for plaintiff.

L. M. Staples, of Washington, Me., for defendant.

CORNISH, J. This is an action of trover brought by the executrix of the last will and testament of Warren G. Williams to recover from the defendant the sum of $18,750, with interest. A verdict having been rendered for the defendant, the case is before the law court on motion and exceptions by the plaintiff.

The following facts are practically conceded:

The testator, Warren G. Williams, the defendant, Maynard S. Williams, and Mrs. Mary J. Frohock were the children of Timothy Williams, and as his heirs at law were the owners in common of a certain lime quarry in Rockland which in March, 1900, was conveyed to the Rockland-Rockport Lime Company for the sum of $56,250, one-third of which belonged to each of the three heirs.

The entire purchase price was paid to the defendant, who was the active agent in making the sale, and on March 19, 1900, was deposited by him in his own name with Kidder, Peabody & Co. of Boston, with the full consent of his brother and sister.

Warren G. Williams died testate in 1910, and this suit is brought by his wife, the executrix, who claims that the defendant never paid over to her husband the portion that was due him, and seeks to recover the same, with interest, while the defendant claims that he paid the testator in full, one-half, $9,375, on September 10, 1901, and the remaining one-half $9,375, on April 18, 1903. In support of his contention, he presents two receipts purporting to be signed by Warren G. Williams, bearing those dates and for those amounts. The plaintiff replies that these receipts are forgeries. Here is the issue.

Motion.

The $18,750 belonging to Warren G. Williams having been admittedly received by the defendant, the burden rested upon him to prove its payment to the owner.

His story is this: That he deposited the entire $56,250 with Kidder, Peabody & Co. In his own name by agreement with his brother and sister, and received interest thereon at rates varying from 2 to 4 per cent., the dividends being paid to him semiannually, and then checks were sent by him to his brother and sister for their respective shares; that the first half of the principal, $9,375, was paid by him to his brother on September 10, 1901, at his sister's home in Rockland, and in her presence, and was paid in money at Warren's request because, to use his own words, "he said he wanted it in cash, bills, or money, and not checks or bonds or anything of that nature," and the first receipt was given at that time.

His explanation of having so large an amount of bills on hand is that he had drawn about $12,000 in cash in November, 1900, from Kidder, Peabody & Co., and had drawn it partly with the idea of meeting this claim.

That subsequently Warren requested payment of the remaining $9,375, and again they met at Mrs. Frohock's house on April 18, 1903, and again, at Warren's request, he paid him the full amount in bills of large denomination, and Warren put them in his pocket and went away. He accounts for the possession of so large an amount of cash on the second occasion by saying that he had purchased $12,000 worth of bonds of Kidder, Peabody & Co. In January, 1903, and had turned over 8,000 or 9,000 or 10,000 of them to his sister, for which she had paid him in bills, and it was these same bills that he had kept on hand until April 18, 1903, when he made this final payment to his brother and took the second receipt.

That after that second payment Warren never mentioned the quarry matter to him nor informed him of what he had done with the money or how he had invested it.

The sister corroborates the defendant in a large part of his testimony, especially as to the cash payments made to Warren in her home; and this with the two receipts, the genuineness of which is seriously denied, makes up the defendant's explanation.

After a careful study of the entire testimony, we fail to find this explanation satisfactory or convincing; on the contrary, it lacks the elements of credibility.

The transactions, as related by the defendant, are possible, but they seem hardly probable. They are so at variance with the usual course of business as to be well-nigh inherently incredible. The drawing of $12,000 in cash from the bankers in November, 1900, and keeping it on hand in order to pay Warren the $9,375 10 months later, in September, 1901, and that, too, when, as the plaintiff testifies on cross-examination, Warren did not ask for the payment until two months before it was made, or about July, 1901, overtaxes one's credulity. The idea of keeping that large amount of money in idle bills for so long a time to meet a claim that had not as yet been made, lacks reasonableness.

Then, too, every other payment during all the progress of this business had been made by the defendant in checks. He apparently knew their value as receipts, and, when the rent of the quarry had been received by the defendant prior to the sale, he had remitted to the plaintiff and his sister checks for their share. According to his own statement, after the sale and before the payment of the first half of the principal—that is, from March, 1900, to September, 1901—he had used checks with which to pay the plaintiff his share of the earned dividends, and between the payment of the first half and of the second—that is, between September 10, 1901, and April 18, 1903—he continued to pay the plaintiff his dividends on that remaining half in checks. They lived in the same city and only a mile and a half apart, but these business transactions between them were conducted in the usual way. The defendant paid by check, and Warren apparently received the checks without objection.

Yet when it came to the payment of $9,375 on two occasions, making a total of $18,750, it was counted out in bills. From the standpoint of both the man who made the payment and the man who received it, checks would seem to have been not only the natural, but the necessary, form of payment.

The second payment is in the same category. The cash which he used in this payment he says he obtained from his sister as the price of certain bonds that he sold her; that she paid him in cash at her house; that he does not know where she obtained the bills, but that he took them and placed them in his safety deposit box at the Rockland Trust Company, and kept them there until he made the second payment in April, 1903. This involves two cash payments of $9,000 or more; the one from the sister to the defendant, and the other from the defendant to Warren, and that, too, although he had not asked his sister to pay him in cash—a most unnatural transaction.

It may be that the defendant attempted to connect his alleged payments with two checks drawn by him on Kidder, Peabody & Co., the first on November 6, 1900, for $12,418.56, and the second on January 19, 1903, for $12,403.50, the only two large amounts drawn from that account prior to April, 1903; but the first of these shows that it was drawn to the order of J. R. Frohock, and has no connection with Warren. It may have been in part payment of Mrs. Frohock's share, while the second appears in the account merely as a draft. Outside of these two withdrawals, the other withdrawals from Kidder, Peabody & Co., excluding a purchase and sale of some United States bonds that appear on both sides of the account and do not affect it, aggregate only $4, 184.89 between the time of first deposit and the alleged final settlement.

The question naturally arises, therefore, From what source did the defendant obtain his money to make the payments?

Again these two receipts represent only the principal. What of the accrued interest? The defendant says he paid it as it accrued, but on April 18, 1903, there must have been interest due from January 1, 1903, and that did not enter into the settlement. Would it not have done so if a final settlement was then made? We have simply two naked receipts each for exactly one-half the principal. All these suggestions arise so naturally from the circumstances and probabilities that they cannot be ignored in attempting to reach the truth.

It is further in evidence that Warren was a day laborer all his life, industrious and frugal. There was never any outward sign of his having received what to him would have been a fortune. His dealings with the traders disclose a man of very moderate means. He had about $7,000 in bonds that apparently came from some other portion of his father's estate, but there is no evidence of any investment or deposit or use of the large amount in controversy which the defendant says he paid him. All this is significant.

On the other hand, however, it should be said that Warren was married in 1903 to the plaintiff, and that there is no evidence of any demand being made upon the defendant for payment until after Warren's decease in 1910. The relations of the two brothers apparently continued friendly.

This brings us to the two receipts, the genuineness of which is in dispute.

The plaintiff attacks them as forgeries, not free-hand imitations, but tracings from some genuine original.

An inspection of these two receipts themselves, without comparison with any other standards, arouses suspicion. The two blank forms used are identical, the same paper, the same printing. The written portions of the body are as nearly identical as the human hand could make them, with the exception of one or two words. The...