Patten v. Glover

Mr. Justice Shepard delivered the opinion of the Court: 1. The first question that is presented for determination is preliminary. The evidence of Curtis J. Hillyer is objected to by defendants because it consists of transactions and communications between him and Mrs. Patten under the relation of attorney and client. The witness said that he was an old friend of Mrs. Patten in California and Nevada, and that she frequently talked with him of her affairs in connection with her husband’s estate, which were involved because she had never rendered) any account to the court and had, in fact, never kept any regular account with her daughters and had no vouchers. She showed him a letter from her attorney in Nevada advising some settlement with the court, and at her request he corresponded with this attorney for a short time. He advised her to prepare as complete and fair a statement as she could. She did this, and witness went over the whole with her carefully. They both agreed that it was about cor — 477 — rect, and was a fair and liberal settlement. He advised her to explain it to her daughters, and have them to agree to it. She reported this as done, and he then drew up the instrument for the daughters to sign, and she informed him that they had signed it. The witness said that while he was a lawyer, he was not consulted by Mrs. Patten in that capacity at all, but simply as an old friend. It is evident also that the communications with Mrs. Patten were not intended to be confidential. We think the evidence is clearly competent, i Greenleaf on Ev., Sec. 240. 2. Another preliminary question arises upon the objections made to the evidence of the several complainants concerning certain transactions with and declarations by Mrs. Patten concerning this indebtedness to her children on account of their interests in their father’s estate. The testimony of each was to the effect that Mrs. Patten, a few days before the marriage of the defendant Augusta, delivered to her $80,000 in United States bonds, which were worth $102, 800 in cash at the time, in payment of her claim under the instrument reciting the indebtedness to her children as aforesaid, that the delivery was made with a declaration to that effect. One of the defendants testified in addition that a few days before her sister’s marriage, she (witness) went with her mother to the Treasury to withdraw the bonds. The mother had had a calculation made of the requisite amount of the bonds, at their market value, to make the sum of about $100,600. The amount was something over $79,000, and witness advised her mother to make it an even $80,000, to which she acceded. These witnesses all testified to the transaction, by which Mrs. Patten, shortly after this, made a loan of $45,000 to John E. Beall, taking the note in the names of the four complainants, for the purpose, as they say, of making a payment to them on account of the same indebtedness. The objection is based on the proviso to the statute making parties competent witnesses, “ that in actions by or against executors, administrators and guardians, in which judgment may be rendered for or against them, — 478 — neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.” R. S. U. S., Sec. 858. With respect to the $45,000 transaction and the declarations made concerning it, we think the objection well taken. These bear directly upon and support the issues made in the case upon the indebtedness of Mrs. Patten to them, her promise to pay the same, and also upon whether the bequest of the will was intended as an extinguishment of the indebtedness as against her estate. But in so far as the testimony relates to the transactions between Mrs. Patten and her daughter Augusta, and her declarations as to the object of the delivery of the bonds to her, we think the proviso does not apply. This is not subject matter of the suit in which the estate is interested. If the estate were interested, its interest would lie in making this proof, as it would have the effect of extinguishing her debt, which if unpaid would be a valid claim against it. 1 Wharton Ev., Sec. 468. Without reviewing or attempting the analysis of the very many cases in which the effect of this proviso has been discussed in its application to the particular state of facts therein, we will content ourselves with quoting what seems a satisfactory statement of the true doctrine, in its application to the question as here presented: “The conflict must be really between the dead, whose mouth is closed, and the living, who is able to speak, in order to enable the statute to apply.” x Wharton Ev., Sec. 470. 3. The evidence shows plainly enough that Mrs. Patten, in good faith, calculated the items of indebtedness to her children, on account of their father’s estate, as accurately as she could, and had the instrument executed by them in order to effect a complete settlement. They were her children; she had not married again, and was possessed of a large and growing fortune of her own. She had long before made a will in which her whole estate was bequeathed to these — 479 — children, share and share alike, and they were unmarried and living with her. She was evidently a good business woman, and thought it best to manage the, interests of her daughters while the foregoing conditions lasted. She did not, therefore, file it in the court in Nevada, but carefully preserved it. But we are not forced to indulge any presumption whatever with respect to her intention as to the effect of this settlement. The close calculation that she had made by a banker of the amount of bonds sufficient at the market rate to equal the principal sum due to her daughter Augusta, and the prompt delivery thereof to her on the eve of her marriage, together with her action in setting aside the Beall loan of $45,000 to the four others; and her declaration of purpose in so doing, furnished convincing evidence of her recognition of the binding effect of the settlement upon herself as well as upon them. Mr. Beall testified that when the loan was made to him, she directed that the notes be made payable to the four complainants, saying that the money was “ advanced to them out of the fund belonging to them out of their father’s estate.” She said she wanted the interest payable quarterly, so that they might have some separate income as “ pin money.” She said it was part of the sum due them, and that she had made certain advances to Mrs. Glover. Beall inquired if she wanted the notes made payable to the five sisters, and Mrs. Patten replied, No; that Mrs. Glover had received her portion. This express recognition of the debt and the partial payments made upon it effectually dispose of the defense of limitations. Cooper v. Olcott, ante p. 123. 4. The Statute of Maryland of 1798, concerning estates, which provides that the claim of a creditor shall be barred unless suit is brought within nine months after the claim shall have been exhibited against an executor or administrator and rejected by him, is in force in this District, but has no application to tire facts of this case. Ch. 101, Subch. 8, Sec. 18. This statute refers only to claims which could be exhibited against the executor. The common law allowed — 480 — an executor to retain money in payment of his claims against the estate in his hands. Sec. 19 of the foregoing act took this right away and provided not for exhibition to any one, but for the passage of such claims by the Orphans’ Court, in which the claims of complainants are now pending. Moreover, this statute only operates after a claim has been duly exhibited and rejected, which is not the situation here. Coburn v. Harris, 53 Md., 352. 5. We cannot hold that the provision for complainants in the will of their mother is a satisfaction of the debt due them. This is not the case of a legacy to one who otherwise could take no interest; but of a general bequest, “share and share alike,” to those who are the natural objects of the testatrix’s bounty, and who would inherit the whole estate, in like manner, if no will had been made. Again, this will was made six years before the indebtedness was liquidated by the instrument of September, 1885, and contains no word of reference thereto. These considerations are sufficient to take the case out of the presumption which it is conceded the courts at an early period attached to the bequest of a legacy to a creditor where there was nothing on the face of the will to indicate a contrary intention. This rule of construction, though generally conceded to exist, has never met with favor. Mr. Pomeroy says of it: “This general rule being based upon artificial reasoning, has been distinctly condemned by able judgés. It is not favored by courts of equity; on the contrary, they lean strongly against the presumption, will apply it only in cases which fall exactly within the rule, and will never enlarge its operation.” 1 Pom. Eq. Jur., Sec. 527. He further says that they will take hold of very slight circumstances to remove a case from the operation of the rule, and adds, what is amply sustained by an examination of the reported cases, “ In fact, the discussion of the general doctrine chiefly consists in the statement and description of those facts and circumstances which prevent its application.” Id., Sec. 528. In a case not unlike this, the Court of Appeals of Virginia said: “ There is no doubt the rule still nominally exists; but — 481 — the tendency of the more recent decisions is to consider the bequest a bounty and not the discharge of an obligation. And the courts now lay hold of any circumstances, however trifling, for the purpose of repelling the presumption that the legacy was intended as a satisfaction of the debt.” Crouch v. Davis, 23 Grattan, 62, 93. In a well-considered case in Mississippi, it was also said: “ Inasmuch as the presumption is arbitrary and often in conflict with the real motives and wishes of the testator, and seemingly harsh, courts have been prompt to seize upon every circumstance to counteract and overcome it.” Gilliam v. Brown, 43 Miss., 641. See also, Spencer v. Spencer, 4 Md. Ch., 456; Edelen v. Dent, 2 Gill & J., 185 ; Owings v. Owings, 1 H. & G., 484; Partridge v. Partridge, 2 H. & J., 63; Van Riper v. Van Riper, 2 N. J. Eq., 1; Heisler v. Sharp, 44 Id., 167; Eaton v. Benton, 2 Hill, 576; Horner v. McGaughy, 62 Pa. St., 189; Reynolds v. Robinson, 82 N. Y., 103 ; 1 Redf. Wills (4th ed.), p. 540; Notes to Chancey's Case, 2 White & Tudor’s L. C. Eq., p. 821 et seq. The testimony in this case of the acknowledgment of the existence of the debts and the payments made to Mrs. Glover and the complainants on account thereof, long after the will had been made, if admissible for that purpose, would completely overturn any presumption of satisfaction, even if there were no intrinsic circumstances upon which the same might be done. The admissibility of evidence of the acts and declarations of a testator after the execution of -the will, when there is no expression therein with respect to the matter, not to explain the will, but to rebut a presumption of law, is supported by very weighty authority. 1 Redf. Wills (4th ed.), 540; Plunkett v. Lewis, 3 Hare, 316; Chancey's Case, 2 White & Tudor’s L. C. Eq., p. 781, and p. 808 et seq. 6. In order to determine the effect of the delivery of the bonds to Mrs. Glover, a few days before her marriage, it may be proper here to add, what might have been said in connection with the discussion of the question raised on the competency of the evidence in Mrs. Patten’s declaration of — 482 — her purpose in so doing. If no evidence whatever had been ■given to show that delivery of the bonds was intended as a payment upon the debt instead of a gift to Mrs. Glover, the presumption would lie that it was so intended. “ It is settled by the uniform current of decision in England that when a father or other person in loco parentis, being a debtor to his child by any kind of ordinary indebtedness, makes an advancement to the child upon marriage, or upon any other occasion, that advancement is presumed to be a satisfaction, or a satisfaction pro tanto, of the debt. In order that the provision may operate as a satisfaction, it is not necessary that it should be made on the marriage of a child, or should be expressly in the nature of a portion.” 1 Pom. Eq. Jur., Sec. 540; Plunkett v. Lewis, 3 Hare, 316. 7. Upon consideration of the whole case, we are of the opinion that the complainants are entitled to the relief prayed for, and the cause will be remanded to the Supreme Court of the District of Columbia, where a decree will be passed giving the same in accordance with this opinion.