Trow v. . Shannon

Rapallo, J. I think the statement of the plaintiff as to what transpired between him and Mrs. Lohman in January, 1870, fails to establish a,completed gift at that time. The substance of his testimony is, that after having set apart three parcels of bonds in three envelopes, she declared to him that one was for Mis. Purdy, one for Charles R. Purdy, and one. *451 containing $10,000, marked with the name of the witness she called his and instructed him: “If anything should happen to her (the meaning of which expression seems to have been well understood) to take possession of all that was in the safe and deposit it in the Safe Deposit Company, and keep his own bonds himself.” On cross-examination he varies the language by saying that she told him to take-charge if anything should happen, if she was being arrested or any trouble with any one, and take the bonds and deposit them in the Safe Deposit Company, and to take the $10,000. After this conversation it appears that the bonds were kept in the same safe where Mrs. Lohman had previously kept them. If nothing more appeared in the case the proof would fall short of establishing an executed gift of either of the three parcels of bonds. The instruction to the plaintiff to “take possession,” or “ take charge1 if anything should happen,’ ” excludes the idea that an immediate delivery was intended, and indicates that her intention was to retain the possession and control of the bonds until or unless something should happen to render it desirable that they should be out of her possession. So long as the authority to him to take possession remained conditional and unexecuted, there was no com-, pleted gift. But the plaintiff did not testify that what occurred on that occasion was all that ever transpired between him and Mrs. Lohman on the subject of these bonds. He testified that the bonds were in his possession in 1872, and were his property • that he drew interest on them for three years and a-half; that they were in an envelope marked “ Joe Trow’s property,” and were kept in Dr. Lohman’s safe. Three other witnesses testified that Mrs. Lohman stated to them that in consideration of his services to her she had given him $10,000 in United States bonds. It also appeared that the plaintiff had access to the safe where the bonds were kept, and one witness gives testimony tending to show that he saw plaintiff and Mrs. Lohman engaged together cutting off’ coupons of bonds, and that plaintiff cut off the coupons of the *452 bonds in the envelope marked with his name, and put them in his vest pocket. It was also in evidence that Mrs. Lohman admitted that plaintiff had the interest on the bonds as it accrued, and that she called them his bonds. Upon this evidence it was a question of fact for the jury whether the gift had not been at some time completed; and the court could not take that question away from them, and •confine the plaintiff to the effect of the transaction of January, 1870, testified to by him. The credibility of the witnesses was purely for the consideration of the jury. The next question presented is that which arises on the-'subject of the release executed by the plaintiff in 1877. Some exceptions are taken to rulings upon the inquiry as to whether anything was said during the negotiations for the release, or at the time of its execution, on the subject of the claim now in suit; but these exceptions are rendered immaterial by the final charge of the judge as to the effect of the release. He charged the jury squarely that the plaintiff’s claim was not released by the general release. If this charge is wrong the exception to it covers the whole ground. If it is correct, then what was said at the time is immaterial. The release is dated April 28, 1877, and is entitled in a matter pending in the Surrogate’s Court in relation to the revocation of letters testamentary which had been issued to the plaintiff as executor of Charles E. Lohman, deceased. It recites the revocation of the letters on the application of the plaintiff, and that by the order of the surrogate the plaintiff ivas directed forthwith to execute, acknowledge and file in the office of the surrogate a resignation and renunciation as executor, and a full and general release of any rights to such office, as well as of any rights, claims or demands which he might have upon or against the testator or his estate, or the executrix thereof, saving only a certain legacy. The release then proceeds to state that, in compliance with said order, the plaintiff irrevocably renounces his office as executor, and in consideration of one dollar to him paid by *453 Ami Lohman, as executrix of the will of Charles R Lohman, and for other good and valuable considerations, releases the said Ann Lohman individually and as executrix, and the estate, late of Charles E. Lohman, deceased, from all claims and demands of any and every sort which, against her individually, or against Charles E. Lohman, deceased, or his estate, the plaintiff ever had, has or may have, from the beginning of the world to the date of the release, saving a legacy under the will which the plaintiff had assigned to Mrs. Lohman. It thus appears on the face of the release that it was executed in compliance with an order of the surrogate’s court having reference to the estate of Charles E. Lohman, deceased, which required the plaintiff to execute a full and general release of all claims and demands against the executrix. It cannot, in the absence of anything appearing on its face to extend it beyond the scope of that order, be deemed to apply to any private matters between the plaintiff and Mrs. Lohman having no connection with the estate of Charles E. Lohman. The use of the term individually, in the release, does not so extend it, for some individual liability of Mrs. Lohman to her co-executor might have arisen out of their dealings with the estate, and by the order he was required to give her a full and general release. The release given is in the ordinary form of such an instrument, and when stating on its face that it was given in compliance with the order, cannot be deemed as intended to have any greater operation than to effect such compliance. We therefore think that the construction placed upon the instrument was correct, and that the evidence admitted, as to nothing being said at the time about this claim, was wholly immaterial and harmless. The objection that no demand of the bonds was proven, if well founded in fact, is untenable, an actual conversion, by the sale of the bonds, having been shown. This dispensed with the necessity of a demand. The judgment should be affirmed. All concur. Judgment affirmed.