Hopkins v. Manchester

Per Curiam. The plaintiff, as executor *664 of the last will and testament of Robert S. W. Hopkins, sues the defendants in trover for the conversion, by the female defendant, of a negotiable promissory note which belonged to the testator, in his lifetime. The note was payable to the testator, or order, and was put by him, without indorsement, into the possession of the female defendant, who was his daughter. The plaintiff, after his appointment as executor, demanded it of her, and she refused to give it up, claiming that her father had given it to her to keep as ■ her own. On trial in the Court of Common Pleas, after testimony had been put in on botli sides, the court ruled that such a note would not pass by delivery, without indorsement, as a gift inter vivos, though it might as a gift causé mortis, and directed a verdict for the plaintiff. The defendants excepted, and have petitioned this court for a new trial. We think the court below erred. The modern cases hold that such a note, or at least the beneficial interest in such a note, will pass by gift, without indorsement, so as to entitle the donee to collect the money due on it for himself, and, if need be, to sue on it for himself, in the name of the donoi-, or of the donor’s legal representative. We do not find that the cases distinguish in this respect between gifts inter vivos and gifts causé mortis, though it may be that, in a doubtful case, the jury would regard the want of an indorsement with more suspicion if the gift were inter vivos than if it were causé mortis. We refer for our authority to the following cases : Snellgrove v. Baily, 3 Atk. 214 ; Duffield v. Elwes, 1 Bligh N. S. 497 ; Roberts v. Roberts, 15 W. R. 117 ; Grover v. Grover, 24 Pick. 261; Sessions v. Moseley, 4 Cush. 87 ; Bates v. Kempton, 7 Gray, 382; Hale v. Rice, 124 Mass. 292; Brown v. Brown, 18 Conn. 410; Bedell v. Carll, 33 N. Y. 581; Westerlo v. De Witt, 36 N. Y. 340 ; Young v. Young, 80 N. Y. 422, 430 ; Crittenden v. Phœnix Life Ins. Co. 41 Mich. 442 ; Elam v. Keen, 4 Leigh, 333. And see note by John T. Kelly to Elanders v. Blandy, 26 Amer. Law Register, N. S. 590, 591. In the course of the trial the female defendant offered herself as a witness to testify to declarations made by the testator in regard to the note. The testimony was objected to and ruled out, the defendants excepting to the ruling. The defendants contend that the testimony should have been admitted, because the action is for a conversion committed, not in the lifetime of the testator, but *665 since his decease. We think the ruling was right. Our statute enabling parties to testify on their own offer does not extend to cases where an executor or administrator is on one side and the party offering to testify is on the other, except where the cause of action is a contract originally made with a person still living and competent to testify, or where the testimony offered relates to matters occurring after tbe death of the testator or intestate. The second exception is, therefore, overruled. The third exception is also overruled. The first exception is sustained, and the case remitted to the Court of Common Pleas for a new trial. Charles H. Page $ Franklin P. Owen, for plaintiff. Dexter B. Potter, for defendant.