BUCKINGHAM'S APPEAL FROM PROBATE, Conn., Judgment, Law, casemine.com

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IRENE M. BUCKINGHAM'S APPEAL FROM PROBATE.

J. M. Buckingham, of New York, for the appellant.

1. The gift of the $1,500 to each of the three nieces was not valid. It was not a gift inter vivos, because the donor was to retain the gift during her life and the donees were not to receive it until after her death. And for the same reason it cannot be claimed to be a donalio causa mortis. Basket v. Hassell, 107 U. S. R., 602. Mrs. Clark had already made her will and given to legatees this very money, the three nieces sharing equally with the others. The attempt to secure the money by them as a gift is an attempt pro tanto to revoke the will by verbal declarations of the testatrix sustained by the testimony of the parties interested. Hough v. Bailey, 32 Conn., 288; Bartlett v. Remington, 59 N. Hamp., 364; Sherman v. New Bedford Sav. Bank, 138 Mass., 581. It is established law that a gift to take effect upon or after the death of the donee is in the nature of a testamentary disposition of property, and can only be made effectual by a will duly executed. "Where the intent of the donor in declaring a gift or trust is shown to be to retain control of the fund during his life, the property to pass from his control to that of the donee only at his death, it is in the nature of a testamentary disposition of property, and will not be sustained unless the formalities of the wills acts are conformed to. For example, A made a deposit in trust, notifying the donees, and telling them that he would control the money while he lived but at his death it would be theirs. This was not a completed gift." 2 Morse on Banking, § 613, citing Nutt v. Morse, 142 Mass., 1. See also Hoar v. Roar, 5 Redf., 637; Sheegog v. Perkins, 4 Baxt., 273; Zimmerman v. Streeper, 75 Penn. St., 147; Baltimore Retort Co. v. Mali, 65 Maryl., 93; Harris v. Clark, 1 N. York, 93; Curry v. Pow era, 70 id., 212; Young v. Young, 80 id., 422; Jackson v. Twenty-Third St. R. R. Co., 88 id., 520; Sherman v. New Bedford Sav. Bank, 138 Mass., 581; Raymond v. Selleck, 10 Conn., 480; Burton v. Bridgeport Sav. Bank, 52 id., 398; 2 Schouler on Pers. Prop., 139.

2. The gift cannot be sustained by supposing a trust for the nieces on the part of Mrs. Clark, for no trust was ever intended or declared. There is no finding or pretense that the word "trustee" was written on the signature book by Mrs. Clark or by any one else with her knowledge. It is only found that the teller of his own accord afterward added it to her name. And in all the alleged declarations of Mrs. Clark in connection with this transaction to the teller or to other persons the word "trustee" was not used or any idea of a trust heard of until afterwards. It is an absurdity after hearing Mrs. Clark declare that she wanted her bank book written up, and $1,500 to be transferred from her account to each of the three nieces named, and that she wanted the bank books so fixed and the entries so made that the money should belong to the three nieces, but so fixed that they could not draw it and spend it during her life, and the teller made out the books, and entered on each, at the head of the account, "only Mrs. Irene Clark has power to draw," that afterwards he could, by adding to her signature on the signature book the word "trustee," change or alter this declared gift to take effect in the future, into a trust. The case of Young v. Young, 80 N. York, 422, is precisely in point. See also Lewin on Trusts, ch. 6, § 3; Curry v. Powers, 70 N. York, 212; Bradbrook v. Boston Five Cent Sav. Bank, 104 Mass., 228; Sherman v. New Bedford Sav. Bank, 138 id., 581; Nutt v. Morse, 142 id., 1; Hill v. Stevenson, 63 Maine, 364; Robinson v. Ring, 72 id., 140; Tillinghast v. Wheaton, 8 R. Isl., 536; Case v. Dennison, 9 id., 88; Antrobus v. Smith, 12 Ves., 39; Bridge v. Bridge, 16 Beav., 315.

3. The record in the case of Miller v. Clark was improperly admitted. It is enough that it was not pleaded. But the present appellant was no party to it. The fact that she promoted the suit would not be sufficient to make her concluded by the judgment. A judgment can conclude only the parties and their privies. While persons may in some cases be held concluded who were not strictly parties on the record, yet they must have a direct interest in the subject matter, with a light to intervene, and to make defense or control the proceeding. Bates v. Stanton, 1 Duer., 79. Also a right to call and cross-examine witnesses and to appeal. 1 Greenl. on Ev., § 535. The appellant does not come within any of these conditions. Besides this, the judgment here was merely one of dismissal and concludes no one. Fisk v. Parker, 14 Louis. Ann., 491; Freeman on Judgments, § 261. But if the record was admissible, yet the opinion of Judge SHIPMAN was not so. That was no part of the record, and was not legal evidence of the facts which it stated.

W. L. Bennett and W. B. Stoddard, with whom was S. C. Loomis, for the appellee.

1. It must be perfectly clear that Mrs. Irene Clark intended to make, and did make, a valid, completed gift of this money to her nieces, and that the nieces accepted the gift. She intended to act as trustee for them for the purpose of preventing it from being spent so long as she lived. The material fact as to this part of the case is absolutely found by the court as follows: "Mrs. Clark, at the time she made the transfers at the bank from her own name to the names of the nieces, intended to give to each of them the sum deposited in her name, and intended to retain custody and control over the bank book and deposit only as trustee for them. The court finds that the donees accepted the gift of the sums of money so deposited." This is an end of that matter. Ward v. Ward, 59 Conn., 188, and cases cited. The fact that the pass books remained in Mrs. Clark's possession most of the time during her life, does not affect the gift. She was the trustee, and, as such, was entitled to the possession of the books. There is no intimation that she held the books because she owned the money. Her entire action in the matter shows that she held them as trustee, which was proper. It is so expressly found by the court. This case has been decided upon the same state of facts by the United States Circuit Court. Miller v. Clark, 40 Fed. Rep., 15. See also Camp's Appeal from Probate, 36 Conn., 88; Minor v. Rogers, 40 id., 512; Kerrigan v. Rantigan, 43 id., 17; Burton v. Bridgeport Sav. Bank, 52 id., 398; Gerrish v. New Bedford Inst. for Savings, 128 Mass., 159; Martin v. Funk, 75 N. York, 134; Boone v. Citizens' Sav. Bank, 84 id., 83; Howard v. Windham Co. Sav. Bank, 40 Verm., 597; May v. Simmons, 11 R. Isl., 266.

2. The objection that the executor's account is in gross, without specifications of items, is not well taken. There were schedules annexed which stated the items in detail. The account meets the requirements of the decision in Fairman's Appeal from Probate, 30 Conn., 208. See also Atwater v. Barnes, 21 Conn., 237; Hutchinson's Appeal from Probate, 34 id., 300.

3. The record in the case of Miller v. Clark was properly admitted. When any person procures a suit to be brought in the name of another for his own benefit, and employs counsel in the prosecution of that suit, the judgment in it is admissible and conclusive against him. Stoddard v. Thompson, 31 Iowa, 80; Conger v. Chilcote, 42 id., 18; Marsh v. Smith, 73 id., 295; Palmer v. Hayes, 112 Ind., 289; Castle v. Noyes, 14 N. York, 331; Spencer v. Dearth, 43 Verm., 98; Hunt v. Haven, 52 N. Hamp., 162; Peterson v. Lothrop, 34 Penn. St., 223; Cecil v. Cecil, 19 Maryl., 72; Lovejoy v. Murray, 3 Wall., 1, 18; Cromwell v. County of Sac, 94 U. S. R., 351, 360. The case was brought at the request of this appellant and for her benefit, and her attorneys appeared and had exclusive charge of the case, except to draft the original bill. The record and finding of facts by Judge SHIPMAN was admissible under the practice of this state. Munson v. Munson, 30 Conn., 425; Huntley v. Holt, 59 id., 102.

C, who had several thousand dollars standing to her credit in a savings bank, requested the teller of the bank to transfer $1,500 to each of three nieces whom she named, one of whom was with her, which he did, charging her account with $4,600, and opening an account with each of the nieces for $1,500, and preparing a bank book for each. C requested that the bank books should be so made that the money could not be drawn out during her life, and the teller endorsed on each of them — "Only Mrs. C has power to draw." C and the niece who was present wrote their names in a signature book kept by the bank, the teller adding to C's name the word "Trustee." The names of the others were afterwards written by them on slips and sent to the bank, the teller writing C's name with the word trustee added. C had before the transfer declared her intention to make the gifts. After the transfer she took the new books and kept them during her life. It was found that she so held them only as trustee for the nieces, and that the nieces accepted the gifts in her lifetime. Held to be a valid gift inter vivos. B, one of the residuary legatees under the will of C, appealed from a probate decree allowing the final account of the executor, in which he had not charged himself with money which he claimed had been given to these nieces by C in her lifetime. B had previously procured her daughter, also one of the residuary legatees, to bring a bill in equity against the executor and the three nieces, to compel the latter to pay to the executor the money so received and the executor to receive and account for it, and had employed counsel to manage the suit, and upon the facts proved the bill had been dismissed. Held that though B was not a party on the record, yet that she was an actual party to that suit, and that the decree was admissible against her upon the trial of the probate appeal. The decree did not show the facts on which it was based, but the opinion of the court stated them. Held that the opinion was inadmissible as not being in itself evidence. It might be shown by parol evidence what was in issue in the former case. Where inadmissible evidence has been received by the court below, unless it clearly appears that no harm could have been done, the safer rule is to grant a new trial. The legal title to all personal property of a decedent vests in his legal representative, who holds it as trustee for all parties interested in it.

TORRANCE, J.

In the case at bar the present appellant, Irene M. Buckingham, took an appeal to the Superior Court from a decree of the court of probate for the district of Milford accepting and approving the final administration account of the executor upon the estate of one Irene Clark, deceased. The appellant was one of the residuary legatees of the personal property under the will. The reasons assigned for taking the appeal were three in number, namely: —

First. Because the executor had not charged himself with all the assets and property belonging to the estate that came into his hands.

Second. Because the court allowed the executor's account "in gross and without proper itemizing and explanation."

Third. Because the court allowed amounts for personal services and expenses to the executor, which were alleged to be "excessive, unnecessary, unjust and illegal."

Upon the trial in the Superior Court the principal point in dispute between the parties related to the matter referred to in the first assigned reason of appeal. The decision of this point turned upon the question whether Mrs. Irene Clark, in her lifetime, had or had not made to three of her nieces a valid gift of certain moneys in bank, amounting in the whole to forty-five hundred dollars. If such gifts were valid, then the money in question did not belong to the estate, and ought not to have been inventoried as part thereof. If they were not valid gifts, then, of course, the money formed a part of the estate and should have been so returned.

The Superior Court found all the facts and circumstances under which the claimed gifts of fifteen hundred dollars to each of three nieces were made; that in what Mrs. Clark so did with reference to the making of the gifts, she intended to make a valid gift of that sum to each of the nieces, to take effect at that time; and that the nieces then accepted the gifts.

The facts and circumstances aforesaid are particularly found and stated upon the record, but for the purposes of this decision it is unnecessary to state them at greater length here.

We are satisfied that the conclusion of the court below, upon the facts as found, that these gifts of money to the nieces were valid gifts, was right, whether regarded as a conclusion of fact or as one of law. But in the trial of the case we think the court erred in admitting certain evidence against the objection of the appellant. We do not here refer to the admission of the letter written by the appellant to the deceased, for we think that was, under the circumstances, properly admitted, and indeed this point was not pressed before us on the argument. We refer to the admission of the opinion of the judge in the case from the Circuit Court of the United States for the district of Connecticut, to which reference is hereinafter made.

It appears from the record in the case at bar, that in 1887, one Martha A. Miller of Iowa, a daughter of the appellant, and one of the residuary legatees of the personal property under the will of Mrs. Clark, brought a bill in equity, in the above named court, against the executor of Mrs. Clark's will and the three nieces to whom the gifts were made by Mrs. Clark in her lifetime, asking that the nieces be compelled to turn over to the executor the money so given, and the bank books which had been taken therefor in the names of the nieces, and that the executor be ordered to receive and account for the money as such executor. The court upon the facts dismissed the bill. Upon the trial of this present case in the court below, the executor of Mrs. Clark, who is the sole appellee in the case at bar, offered in evidence a certified copy of the record of the case aforesaid, in the United States Circuit Court, together with a like copy of the opinion filed in the cause by the judge who tried it, and the printed proofs taken before an examiner in the cause. The appellant objected to the whole of this evidence, as among other things "irrelevant and res inter alios acta," and also to the copies, "as not showing on what proof the decree was based." She also objected to the opinion of the judge "as being no part of the record and mere hearsay, and irrelevant and incompetent to explain the grounds of the decree." The court overruled each and all of these objections, admitted the evidence, and held that the opinion of the judge might be read and used to show the grounds of the decree.

If the present appellant was a party or privy to the suit in the United States Court, then of course the legal record in that suit would have been admissible against her upon any matter which had been there litigated and determined between herself and the present appellee.

She was clearly not a party of record in that suit, but the appellee claims that she was, within the meaning of the law, an actual party thereto, and in privity with himself, as executor of the estate which he, in that suit, represented. In regard to the actual connection of the present appellant with the suit in the United States Court, the record is as follows: — "The said Martha Miller is one of the devisees under said will, (that is, of Mrs. Clark), and the daughter of the appellant, and said action was brought at the request of the appellant and for her benefit, and the appellant's attorneys, Mr. McMahon and Mr. Buckingham, appeared and had the exclusive charge of said case during the preparation and trial thereof, except that the bill in the case was originally drafted by Mrs. Miller's counsel in Iowa. This bill was sent to the appellant's attorney, Mr. McMahon, who made such changes in it as he deemed best, and had the action commenced. Mr. Baldwin, the appellant's attorney in this appeal from probate, was not concerned in the Miller case. Mr. McMahon advised with the appellant touching this Miller case."

It thus appears from the record that the present appellant, for her own benefit as a legatee under the will of Mrs. Clark, caused a suit to be brought in the United States Court in the name of her daughter, another legatee under the will, against the executor of Mrs. Clark's estate and those to whom the gifts aforesaid had been made, to determine whether the money claimed under the gifts was or was not the money of the estate, for which the executor should account. This suit was commenced by her attorneys, it was prosecuted by them to a final conclusion, and they had the exclusive charge of it during the preparation and trial thereof, with the exception of the original draft of the bill. To that suit the estate of Mrs. Clark, through the executor thereof, was a party. So far as legatees and distributees of the personal property were concerned, the executor represented them and their interest in the estate in this proceeding.

"The rule of law is well established that the legal title to all personal property of the deceased vests in his legal representatives. They can dispose of it at pleasure, being responsible for the faithful execution of the trust." Beecher v. Buckingham, 18 Conn., 110; Johnson v. Connecticut Bank, 21 id., 156. The personal representative holds such property as a trustee of all parties interested therein. Schouler on Exrs. Admrs., § 239.

Assuming that the United States Court had jurisdiction of the parties and the subject matter, we think, if the decree in that suit had determined that the gifts in question were invalid, and that the money so given belonged to the estate, such a decree would have been admissible in evidence in the present case in favor of the appellant and against the appellee. If this be so, we see no good reason why it is not admissible in evidence against the appellant and in favor of the estate upon this same point, more especially in view of the fact that the appellant was the party who actually brought and conducted the suit.

The following authorities support this conclusion. Crandall v. Gallup, 12 Conn., 365; Gould v. Stanton, 16 id., 21; Teague v. Corbitt, 57 Ala., 529; Scott v. Ware, 64 id., 114; Stones. Wood, 16 Ill., 177; Castellaw v. Gruilmartin, 54 Geo. 299; Steele v. Lineberger, 59 Penn. St., 308.

Whether, when so admitted, such decree would be conclusive or not, we have no occasion at present to determine.

In admitting the record itself therefore, under the circumstances disclosed by the finding, we do not think the court below erred. But the court also admitted in evidence the written opinion of the judge who tried the case in the United States Court. This was no part of the record. It was admitted for the purpose of showing the grounds of the decree. The decree itself did not show on what facts it was based.

After the record was admitted, the question then was whether the validity of the gifts to the nieces, which was in issue in the case at bar, had been in issue and had been determined in the prior suit. In such a case, if the record does not clearly disclose the facts upon which the judgment or decree is based, they may be shown by any proper evidence outside of the record. Supples v. Cannon, 44 Conn., 424; Mosman v. Sanford, 52 Conn., 23. But the witnesses who give such evidence must give it in the ordinary way, and under the conditions imposed upon all witnesses. It must be given under oath and subject to the right of cross-examination, and it must not be what is termed "hearsay" evidence.

By the admission of the opinion aforesaid, as evidence to show the grounds of the decree, these fundamental rules of evidence were violated, and the court committed an error, But the appellee claims that, if the court did so err, the decision at which the court arrived upon the merits of the case, was not affected by the admission of the aforesaid testimony. This may be true, but we cannot be certain of it. The conclusions of the court below were drawn after the reception of the entire testimony, and we cannot profitably speculate as to the degree of influence which the objectionable testimony had in the final result. In such a case, unless it clearly appears that no harm could have been done, perhaps the safer rule is to grant a new trial. Jacques v. Bridgeport Morse B. B. Co., 41 Conn., 66; Richmond v. Stalde 48 id., 22.

We regret the necessity that compels us to grant a new trial in a case like the one at bar, where the real questions at issue have been so fully tried before two able and impartial judges, but we see no way of avoiding such a result in the present case.

BUCKINGHAM'S APPEAL FROM PROBATE

IRENE M. BUCKINGHAM'S APPEAL FROM PROBATE.

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