Action for a new trial by Alvord E. Winchell and others against Howard M. Sanger and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.
This was a complaint claiming a new trial of the case of Howard Sanger against Julius C. Cable, administrator on the estate of Lura Bailey, tried in the superior court in New Haven county and decided in June, 1809. The finding of facts is this: "Upon the trial of said cause to the court the following facts appeared in evidence, and claims of law were made, to wit: (1) Lura and Marietta Bailey were maiden sisters, old and infirm,—Marietta being blind,—who had always lived together. Other members of the family had lived with them until 1891. After that they lived alone, but the defendants lived in the house, and Howard H. Sanger took care of them. (2) While a boy he had worked for the family until he was twenty-one. Then he was away for five years. Then he returned and worked in the family, William R. Bailey paying him ten and fifteen dollars per month till 1891, when said William R. died. After that time until the death of the sisters he had cared for them. (3) While caring for the sisters he had also received some compensation, but it was always understood by all that he was not fully compensated. (4) Lura died intestate July 20, 1897, leaving Marietta her sole heir at law; and on July 30, 1897, Julius C. Cable was duly appointed and qualified as the administrator of said Lura's estate, and six months were limited for presenting claims against the estate. (5) Marietta died October 28, 1897, leaving a will, a copy of which is annexed to the complaint; and on November 11, 1897, the plaintiff Alvord E. Winchell duly qualified as executor of said will. (6) On the day she made said will said Marietta made and delivered to the defendant Howard H. Sanger a note for $8,000, payable on demand, with interest at six per cent. I do not find from the evidence that this note was delivered or accepted as a payment in whole or part for his services to Lura Bailey. At the time it was delivered he was told that he would be entitled to pay for services thereafter rendered to Marietta. (7) Within six months limited for the presentation of claims against Lura's estate said Howard presented a claim against her estate for $3,500 for services, and his wife presented one for $750, both of which were disallowed by the administrator, and no other claim was presented by them against said estate within the six months. (8) Within four months after such disallowance, suit was brought to the superior court by said Howard against said administrator upon said claim. In his bill of particulars he claimed $4,250, and the ad damnum was $4,500. The case went to a committee, after which the superior court, on motion, permitted this ad damnum to be increased to $9,000, and the bill of particulars was amended so as to claim $8,895.83 and interest for services performed for Lura. After a long hearing the committee reported in favor of the plaintiff that he was entitled to recover, in addition to what he had received, the sum of $8,580. To this report there was a remonstrance filed. Later, by agreement of the parties, a judgment was entered for $7,972.25 and costs in favor of said Howard. The note for $8,000 given by Marietta as aforesaid was not pleaded as a defense in said action, and there was no defense of payment. The file in said action is by reference made a part of this finding, not to be printed with the record. (9) A motion was made at the same term by the present plaintiffs that said judgment be opened and they be allowed to defend, which motion at the succeeding term was overruled. (10) Said Winchell was a witness before the said committee, and knew of the pendency of said action. He drew Marietta's said will and said note, and assisted at their execution,—she being blind,—and by Marietta's direction he delivered said note to said Howard H. Sanger. (11) Said Winchell supposed said note paid for all services to both sisters. He testified before said committee as to the giving and payment of said note, and that said note was given in full compensation for all services of said Sanger to Lura and Marietta to the time of its date. The defendant Cable, administrator, expressly disclaimed all evidence tending to show that Winchell acted as the agent of Marietta in the execution and delivery of said note; and, as the acts other than signing of her mark by Marietta were done by said Winchell, he thereby withdrew the whole matter from the consideration of said committee. (12) In February, 1899, after his qualification as executor, but before he knew that said Howard had presented a claim against, said Lura's estate, said Winchell paid said note, amounting, with interest, to $8,280. (13) None of the other plaintiffs had actual knowledge of the pendency of said action before judgment was rendered therein. They are interested, as legatees and devisees under the will of
Marietta, in the estate of Lura. All of the real estate specifically devised by Marietta belonged to Lura at the time of her death. Apart from the claims of the defendant, the debts were few and small of both said sisters, and the personal property of each ample to pay all debts and expenses of settlement and legacies of Marietta. In order to pay the Sanger judgment, Lura's administrator will have to sell some or all of the real estate so specifically devised by Marietta. (14) Upon the trial counsel for the plaintiffs called said Winchell as a witness, who, having testified that he was a practicing physician, and had attended the Baileys during the time the defendant's services were alleged to have been rendered, was asked by said counsel this question: 'Q. What was the worth of Sanger's services?' This question was objected to by defendants' counsel upon the ground that the committee had found the value of such services, and it was incompetent and immaterial. The objection was sustained, and the plaintiffs' counsel duly excepted. (15) The plaintiffs offered in evidence the file in the case of George E. Bailey v. Julius C. Cable, Administrator of the Estate of Lura Bailey, tried by the same attorneys before the same committee who tried Sanger's case, 'for the purpose of showing the amount of his claim referred to in paragraph 21 of the complaint, and also called the attention of the court to the facts that the claim was for $2,500, judgment for $1,000 and interest, that the trial lasted sixteen days, and that the committee fees were $400.' The defendants' counsel objected on the ground that it was irrelevant and immaterial. The court sustained the objection, and the plaintiffs duly excepted. (16) The plaintiffs introduced in evidence the testimony taken before the committee in Sanger v. Cable to show what took place before said committee. It appeared therein that Winchell testified that the $8,000 note was given in payment for Sanger's services to both sisters, and that Sanger testified that it was a gift from Marietta, and that this matter was withdrawn by Cable from the consideration of the committee. Upon the argument the plaintiffs claimed that the court should treat the testimony of Sanger that the note was a gift as an admission against his interest, as set forth in section 8 of paragraph 18 hereof, which he was estopped to deny. (17) No fraud or bad faith on the part of said Cable, administrator, was claimed by the plaintiffs. Previous to the decease of said Lura a form of will was drawn up, and it was agreed between said Lura and Marietta that wills should be executed by each of them, so that, whoever died first, defendant Sanger would receive eight thousand dollars, and that the remainder of the property of both should be given in accordance with the provisions of Exhibit A; but the execution of said wills was prevented by the death of said Lura. The plaintiff Winchell, executor, did not know of said suit until summoned as a witness near the close of the hearing before the committee, about two hours before being called to testify."
Exhibit A: "I, Marietta Bailey, of the city and town of New Haven, and state of Connecticut, being of sound and disposing mind, make and declare this instrument to be my last will and testament. After all claims against my estate are paid, I give and bequeath to the First Baptist Church of New Haven, Conn., the tract or portion of land situated in the city of New Haven, bounded as follows: Three hundred feet on Ferry street, three hundred feet on Bailey St., three hundred feet on Rowe St, and three hundred feet on Dover St,—with the house now occupied by me as my residence, with the buildings and appurtenances thereto belonging. I further direct that two-thirds of the income or proceeds from the sale of the aforesaid property or estate be appropriated by the said Baptist Church to the support of the foreign and home missions of said church, at its discretion, and that the remaining third derived from the income or sale of the aforesaid property be reserved by the said First Baptist Church for its own benefit and use. I bequeath to the Grand Avenue Baptist Church of New Haven the sum of five hundred dollars. I give to the New Haven City Burial Ground Association the sum of five hundred dollars, to be used as a fund for the care and maintenance of our family burial lot in sd. burial ground. I give other bequests as follows: To George E. Bailey, of Orange, Conn., the sum of one thousand dollars; to Joseph William Bailey, of Orange, Conn., the sum of one thousand dollars; to George E. Bailey, of Orange, Conn., the sum of five hundred dollars. I give and bequeath to the City Missionary Association of New Haven the sum of one thousand dollars; to the Woman's Seamen's Friend Society of Connecticut the sum of one...
