Daggett v. Simonds

Knowlton, J. This is an action against the executor of the will of Esther L. Robbins to recover the amount of a promissory note made by the testatrix. The evidence tended to show that this note and three other notes payable to different persons were sealed up in an envelope by the testatrix before her death and handed to one Hattie A. Ray, who had been employed by her for thirteen years and was on intimate terms with her, working about the house and assisting her in different ways. The witness Ray testified that, when the testatrix handed her the note, she said, “ I do not feel as if I have paid Aunt Angie for all she has done for me, so I give her this note to part pay her. After my death, be sure Aunt Angie gets it. Do not leave it around so Simonds can get it, or there will be trouble if he does get it.” The person referred to as Aunt Angie is the plaintiff, and Simonds is the defendant. This note was sealed in an envelope with the letters “ A. D.” upon it. There was evidence from other witnesses tending to show that the testatrix delivered the note to Miss Ray to be kept until the death of the testatrix, and then to be handed to the plaintiff. There was no direct testimony as to whether she intended to reserve to herself a right of revocation ; but it was in evidence that Miss Ray kept the notes all the time until after the death of the testatrix, and then opened the envelope and delivered them to the persons for whom they were intended. The defendant made eight requests for rulings, all of which were refused, subject to his exception. Most of these could not properly have been given. in the form in which they were presented. The second was in these words: “ If Esther L. Robbins made the note in suit intending to keep it in her possession, either in her personal possession or in the possession of her agent or servant, during her lifetime, and that, should she not change her mind and destroy the note before her death, her agent or servant should deliver the note after her death to the plaintiff; that if Robbins did keep the note in her possession or that of her servant or agent until her death, and if after her death her servant or agent, pursuant to oral directions given her by Robbins, delivered the note to plaintiff, the plaintiff [347] not having theretofore at any time been in possession of the note, the plaintiff cannot recover in this action.” The evidence and the requests call for a statement of the law in regard to the kind of delivery required to give a promissory note validity. From the testimony of the different witnesses, the jury might have found that the testatrix intended merely to put the note in the custody of her servant in the same way as much of her other property was in the servant’s custody, and wished it to be held under her direction without a change of the possession, and to be delivered after her death in execution of her order. If this was the arrangement, it is clear that there was no delivery, and that the authority of the servant terminated with the death of the testatrix, and left the notes a part of her estate, to be administered by her executor. On the other hand, the evidence would have well warranted a finding that the notes were delivered to Miss Ray in escrow, to be held by her as a third person, as if she were not in the service of the testatrix, and with an intention on the part of the testatrix that her possession should be for the benefit of the plaintiff, and that she should deliver the note to the plaintiff on the death of the maker. If this was the arrangement, she having accepted the possession and having delivered the note after the death of the maker to the plaintiff and the plaintiff having then accepted it, there was a good delivery in escrow, and the second delivery related back and took effect from the time of the first delivery. The general doctrine applicable to a delivery in escrow was stated by Chief Justice Parsons in Wheelwright v. Wheelwright, 2 Mass. 447, and was referred to in Hatch v. Hatch, 9 Mass. 307, 310, and in Foster v. Mansfield, 3 Met. 412. In the last case, the grantor made a deed and delivered it to a third person with a request that he would deliver it to the grantee after his, the grantor’s decease, which he did. It was held that the deed took effect by relation at the time of the first delivery. Chief Justice Shaw says in the opinion : “ It is immaterial to inquire, what would have been the effect, if the grantor had recovered from his sickness and taken back the deed. As the estate did not effectually pass till the second delivery, if that second delivery bad been prevented, it would probably have been held that it was wholly inoperative.” See Hale v. Joslin, 134 Mass. 310. [348] In Worth v. Case, 42 N. Y. 362, the defendant’s testator sealed up a paper and delivered it to the plaintiff, who was his sister, with this indorsement upon it: “ Mary C. Worth. This is not to be unsealed while I live, and returned to me any time I may wish it. T. B. Worth.” She took it and kept it without knowing its contents until after his death, when she opened it and found it contained a promissory note for ten thousand dollars, payable to her, for which there was a valuable consideration in her previous services to the testator. It was held that there was a good delivery, inasmuch as the maker intended that it should pass as a binding contract, subject to be defeated by the opening oi the paper by Mary C. Worth, or by his recall of it during his lifetime. In Giddings v. Giddings, 51 Vt. 227, a sealed envelope was left with a third person, who indorsed upon it these words: “ Letter left in my care by Benjamin Giddings, to be handed to Mr. Giddings if he calls for it; otherwise not to be opened in his lifetime.” The Mr. Giddings referred to in the indorsement was Benjamin Giddings. The envelope contained three notes made by Benjamin Giddings to three of his nephews, and on the outside it was directed to one of them. The indorsement was in accordance with the instructions given. There was evidence of a consideration for the notes. It was held that this was a delivery in escrow, and that, the letter not having been recalled by Benjamin Giddings, the notes were binding upon his administrator. That an unexercised right of revocation is of no effect to defeat a deed delivered in escrow is held in Blanchard v. Sheldon, 43 Vt. 512, and in Morse v. Slason, 13 Vt. 296, 307. Foster v. Mansfield, 3 Met. 412, cited above, suggests the same proposition. In Belden v. Carter, 4 Day, (Conn.) 66, the grantor in a deed handed it to a third person, saying, “ Take this deed, and keep it; if I never call for it, deliver it to B. after my death; if I call for it, deliver it up to me.” He did not call for it, and after his death it was held a good deed in the hands of the grantee. The doctrine in regard to the delivery of deeds in escrow is generally held applicable to promissory notes, and there is no good reason why it should not be. . Bell v. Ingestre, 12 Q. B. 317. Benton v. Martin, 52 N. Y. 570, 574. Sweet v. Stevens, 7 R. I. 375. 4 Am. & Eng. Encyc. of Law, (2d ed.) 204, and cases cited. [349] Without determining whether we should go so far as the decision goes in Worth v. Case, 42 N. Y. 362, we are of opinion that if the testatrix in the present case delivered the note in escrow, to be held by Miss Ray and delivered to the plaintiff on condition that the maker died without recalling it, the happening of the condition left Miss Ray with authority to deliver it to the plaintiff, and thereby to give her a good title. If, on the other hand, Miss Ray was simply to take the note into her custody and to hold it as the servant of the testatrix, under her orders, she could not effectually deliver it to the plaintiff after the death of the maker. The instructions to the jury, taken in connection with the refusal to give the instructions requested, failed to state the rules of law applicable to the case so clearly as was necessary for their guidance. The note was given for a valuable consideration, and it unquestionably would have been valid if it bad been delivered by the testatrix to the plaintiff personally. The case is not like Parish v. Stone, 14 Pick. 198, in which the note was given for • two distinct and independent considerations, one of which was valid and the other not, and in which it was held that the note should be apportioned. There was no error in the admission or exclusion of evidence. The directions given by the testatrix in regard to the note are competent on the question whether there was a delivery, and her admissions upon that subject are evidence against her executor. The amount of the claim of the witness Ray against the estate of the testatrix was immaterial, as was also the amount of her claim against the executor personally. Exceptions sustained.