Randall v. Peckham

This is a bill in equity brought by Stephen O. Randall against Samuel W. Peckham, administrator upon the estate of Henry C. Pabodie, and Olive G. Pettis. Its purpose is to compel the defendant Pettis to pay and surrender to the plaintiff a certain promissory note, for seven thousand five hundred dollars, dated July 1, 1868, given by him to Pabodie, and now held by the defendant Peckham, as Pabodie's administrator, and to cancel and discharge the mortgage upon the plaintiff's estate, securing its payment, and in case of her continuing refusal or inability to do so, to compel the administrator to surrender the note, and cancel the mortgage. The plaintiff rests his claim for relief upon a writing of which the following is a copy: — "PROVIDENCE, October 26th, 1868. "This is to certify, that it is agreed between myself and Olive G. Pettis, that if she receives after my death a part of my estate, she, the said Pettis, does agree to cancel the mortgages on the estates of B.M. Hubbard and Stephen O. Randall, and present *Page 603 them with their notes to said Hubbard and said Randall, and make the amount of Hubbard's present equal to that given Randall. H.C. PABODIE." This writing was drawn up by the plaintiff, and signed by Pabodie on the day of its date, during his last illness, and three days before his death, which occurred October 29, 1868. The plaintiff contends, first, that this writing operated in equity as a release of the note, and a discharge of the mortgage, or, as an assignment of them, upon the condition that Mrs. Pettis should receive after Pabodie's death a part of his estate, and that such release and discharge, or assignment, have become absolute by the happening of the condition, Mrs. Pettis having received, as he alleges, since the death of Pabodie, a part of his estate. We cannot give this effect to the writing. There is nothing in it, or in the testimony, to indicate that Pabodie intended by it either to release the note and discharge the mortgage, or to assign them; on the contrary, the writing contemplates that they are to become the property of Mrs. Pettis. But even if it could be considered as a release of the note and discharge of the mortgage, or as an assignment of them, the condition specified in it upon which it was made has failed. Mrs. Pettis did not after Pabodie's death receive a part of his estate. His will, by which he had given the bulk of his property to her, was set aside. His real estate, if he had any, vested in his heirs at law, and his personal estate in his administrator; and though the administrator, by the direction of the next of kin, has paid to Mrs. Pettis from time to time portions of the personal estate, she has received such personal estate as the property of the next of kin of Pabodie, and not as his estate. The plaintiff contends, secondly, that the signing and delivery to him of the writing above recited passed the note and mortgage as a donatio causa mortis. We do not think so. To make a valid donatio causa mortis of a chose in action by the delivery of some document relating to it, the document must beessential to its recovery, as, for instance, a bond and mortgage; Duffield v. Elwes, 1 Bligh N.S. 497; or receipt for money loaned. Moore v. Darton, 4 De G. Sm. 517. The writing in question was not of that character. Moreover, as already stated, it contemplated *Page 604 that the note and mortgage were to pass to, and become the property of, Mrs. Pettis. The plaintiff contends, thirdly, that the writing is valid as a contract, and binding as such upon Pabodie's estate, and upon Mrs. Pettis, because, as he alleges, assented to by her. It will be perceived that the writing does not contain any promise or agreement upon the part of Pabodie to do anything whatever in relation to the note and mortgage. It purports to be merely his certificate that Mrs. Pettis had agreed with him to do certain things upon the happening of the condition set forth. We see no reason for treating it as a contract of Pabodie. It is not necessary to determine whether or not Mrs. Pettis made the agreement with Pabodie set forth in the writing, and subsequently promised the plaintiff to perform it; for assuming that she did, and that it could be enforced against her as a declaration of trust, we think that under the proper construction of the agreement she would be required to surrender the note and cancel the mortgage, only in case they came into her possession under the will as a part of Pabodie's estate, and that she would not be required to purchase them in order to perform the agreement. We see no ground upon which the bill can be maintained against either defendant. Decree dismissing bill and giving to each of therespondents his costs entered July 21, 1877. Subsequently the complainant filed in one paper a "petition for rehearing and a bill of review," stating that, — "The court finds that Mrs. Pettis did not receive the personal estate as the estate of Henry C. Pabodie. "Whereas the testimony shows that the administrator at one dividend paid Mrs. Pettis by passing to her a certain mortgage, and Mrs. Pettis swears that she received funds from the estate. "And because the signing and passing the paper writing to the plaintiff passed the note and mortgage as a donatio causamortis. "And because the writing is binding upon Pabodie's estate and upon Mrs. Pettis, because she assented to it and the conditions were fulfilled. *Page 605 "And also, because if the will of Pabodie was set aside in pursuance of an agreement entered into between Mrs. Pettis and the heirs of Pabodie, whereby she received a part of the estate, she is still bound to cancel the mortgage and live up to the writing. "And also, because the paper writing signed by Pabodie acted as an equitable assignment of the mortgage, and should be so considered. "And because there are other statements in the opinion which are erroneous and should be corrected." This was filed September 13, 1877, after the close of the March Term, 1877; the court having adjourned July 28, 1877, to meet according to law. To this petition and bill the respondent, Peckham, demurred. Both respondents also moved to dismiss it as a petition for a rehearing on the ground that it was filed too late. These motions to dismiss and the demurrer were heard at the October Term in Providence County.