An infant may affirm a contract or settlement made for her
benefit, like the one here in controversy, and may sue upon it as
if she were originally a party to it.
In a suit by children to establish their rights as creditors of
the estate of their deceased mother, other creditors are not
necessary parties, as the executors or administrators represent
them and guard their interests.
The bill in this case, filed by direction of the orphans' court
to obtain the advice of a court of chancery upon the rights of the
respective parties, discloses on its face a good cause of action in
equity.
That cause of action is not barred by the Maryland statute of
limitations, still in force in the District of Columbia.
Where a parent, being a debtor to his child, makes an
advancement to the child, it is presumed to be a satisfaction
pro tanto of the debt.
In a suit between devisees under a will, statements made by the
deceased to counsel respecting the execution of the will or other
similar document are not privileged.
The objection that the complainants were incompetent to testify
as to their mother's statements and as to transactions in which she
took part is entitled to some weight and is not free from doubt,
but such testimony is not indispensable to the maintenance of the
complainants' bill.
The general bequest to her daughters in the mother's will was
not an extinguishment of her debt to them.
No interest should be allowed prior to the mother's death.
Page 165 U. S. 395
This was a bill in equity filed in the Supreme Court of the
District of Columbia by Mary E. Anastasia Patten, and to charge the
estate and Helen Patten, against their sister Augusta P. Glover,
wife of John M. Glover, in aid of the jurisdiction of the supreme
court as an orphans' court to construe the will of their mother,
Anastasia Patten, and to charge the estate with certain claims of
the complainants prior to a general distribution of the assets.
The facts of the case are substantially as follows: complainants
and defendant, Augusta P. Glover, are the five daughters of Edmund
Patten, late of the State of Nevada, deceased, and of Anastasia
Patten, who, after her husband's death, took up her residence in
Washington, and died September 11, 1888, leaving a will executed in
San Francisco December 23, 1879.
Edmund Patten, her husband, died November 16, 1872, intestate,
his widow becoming his administratrix and also the guardian of each
of his children, all of whom were then, and for some years
continued to be, minors, under the age of twenty-one years. By the
law of Nevada, Mrs. Patten became entitled, upon her husband's
death, to one-half his estate, the other half descending to his
children. As administratrix and guardian, she took possession of
the entire estate, and retained the same down to the time of her
death. She made no accounting either as administratrix or guardian,
nor did she keep any regular accounts or preserve her vouchers.
In September, 1885, apparently because of a desire on the part
of the sureties on her bond, or some of them, to have her accounts
settled, Mrs. Patten undertook to adjust her indebtedness to her
children. She called in the services of Curtis J. Hillyer, a friend
of her husband and herself, and the result was the preparation of
the following document, intended to take the place of a formal
account and vouchers:
"Whereas our mother, Anastasia Patten, as guardian for us,
received in the years 1873-'4-'5 certain amounts of money, being
our portion by inheritance of the estate of our deceased father,
and whereas, no special separate investments of the
Page 165 U. S. 396
money so received have been made by our said guardian, but the
same has been by her kept and safely invested in connection with
moneys belonging to her in her own right derived from the said
estate, and whereas, our said guardian has, up to the present date,
had entire charge of our maintenance and education, and has during
the past thirteen years incurred a large amount of family expenses
for our benefit, of which expenses no account has been kept by her,
and whereas, we and our said guardian are now desirous of settling
the account between us in a just and equitable manner, without
attempting to secure technical accuracy in such settlement, and
whereas our said mother and guardian has submitted to us for
inspection all accounts and papers in her possession touching or
relating to the receipts and disbursements entering into such
accounting, and we have personally general knowledge concerning the
family expenses during said period, and whereas, from such
examination and knowledge, we believe that, by a payment to each of
us by our said guardian of the sum of $101,600, an equitable
settlement will be made and full justice done to each of us:"
"Now, therefore, each of us for herself agrees to accept the
said sum of $101,600 in full and complete settlement of all
accounts, claims, and demands between us and each of us and our
said mother and guardian, and in full satisfaction of all claims
and demands of whatever character arising out of or connected with
the administration of said estate or the said relation of guardian
and ward, and each of us for herself authorizes and requests that,
upon presentation of this agreement and a receipt for the above
amount, the court having jurisdiction thereof will, without further
investigation of accounts so far as they concern either of us, pass
the final accounts of our mother as administratrix and guardian,
and, by proper decree, discharge those liable as bondsmen for her
action in either capacity."
"[Signed]"
"Mary Ellen Patten"
"Katherine Augusta Patten"
"Josephine Antoinette Patten"
"Edith Patten"
Page 165 U. S. 397
This paper was signed by all the complainants except Helen, and
by the defendant Augusta. Helen, being then a minor, did not sign
it, but subsequently adopted and accepted the adjustment and
settlement evidenced by the paper.
This paper was never presented by Mrs. Patten to the proper
court, and it was in her possession when she died. She did not at
that time pay to her children, or any of them, the sum therein
mentioned in settlement of her indebtedness to them, but
subsequently, and in February, 1887, when her daughter Augusta was
on the point of marrying her husband, John M. Glover, she assigned
and transferred to her United States government bonds of the par
value of $80,000, and the actual value of $102,800, with the
benefit of the interest accruing thereon since the preceding 1st
day of January. Then Augusta married, and left her mother's
home.
Mrs. Patten did not at that time pay or give her other daughters
anything on account of her indebtedness to them. In the following
autumn, however, namely, on October 15, 1887, she made for them and
in their names an investment of the sum of $45,000, being at the
rate of $11,250 for each, which the complainants claimed to have
been a payment on account of her indebtedness to them. It was
undisputed that the interest on this investment, from the time it
was made until Mrs. Patten's death and thereafter, was always
deposited in bank to the credit of the appellees, and for their
account.
Within a year after this transaction, namely, on September 11,
1888, Mrs. Patten died without having done anything further towards
settling her accounts as administratrix or guardian or paying her
indebtedness to the appellees. It was found that she had left a
will bearing date December 23, 1879, some seven years after her
husband's death and nearly six years before the preparation and
execution of the paper, in September, 1885.
By the terms of this will, Mrs. Patten devised and bequeathed
the whole of her estate, subject to $45,000 in legacies, to her
five daughters, and named as her executrices such of them as might
have attained the age of majority at the time of her death, and who
should not be otherwise incapacitated, to
Page 165 U. S. 398
undertake the trust. By virtue of the latter provision, all of
the daughters were appointed and qualified in the Supreme Court of
the District of Columbia as executrices, but, as the will was
executed in the presence of two witnesses only, it was invalid to
pass real estate situate in the District of Columbia, and, as the
greater part of Mrs. Patten's estate at the time of her death
consisted of such real estate, it descended to her daughters as
though she had died intestate.
The daughters having all qualified as executrices and having
entered upon the discharge of their duties, the appellees, claiming
to be creditors of the estate of which they were also executrices,
presented to the Supreme Court of the District of Columbia a
petition wherein, after reciting the indebtedness of Mrs. Patten to
all of her daughters, including Mrs. Glover, by reason of her
guardianship, they alleged that in September, 1885, the amount of
her indebtedness was adjusted, settled, and determined by mutual
agreement (except as to Helen), evidenced by the paper writing of
that month hereinbefore set forth; that Helen, being fully advised
in the premises, adopted and accepted the said agreement and
settlement; that by virtue of the premises, Mrs. Patten became and
was indebted to each of the petitioners and to Mrs. Glover, as of
that date, in the sum of $101,600; that on February 17, 1887, as of
January 1, 1887, Mrs. Patten paid on account of her indebtedness to
Mrs. Glover $102,800 by transferring to her bonds of the United
States; that afterwards Mrs. Patten paid each of the petitioners on
account the sum of $11,250, and that, by virtue of the premises,
the estate of Mrs. Patten stood indebted accordingly, but, as the
petitioners were advised that they might not retain for their
claims unless passed by the court, they accordingly in their
petition prayed the court to pass upon and authorize the payment of
the same.
To this petition Mrs. Glover, the remaining executrix, appeared
and filed an answer admitting the inheritance by her and the
complainants of the estate aforesaid from their father, and set
forth in substance that the said testatrix did become guardian of
the complainants and said defendant, as alleged, and did receive
their said estate aforesaid said as such guardian,
Page 165 U. S. 399
but that said testatrix never formally settled her accounts as
such guardian, she not having been called upon so to do; that the
document above set forth was drawn and signed in order to enable
said testatrix formally to close her accounts as guardian
aforesaid, but that the amounts agreed by the terms of said paper
to be accepted by the complainants and said defendant were never
paid, nor was any evidence of indebtedness given to them or any of
them, and that notwithstanding said paper, the accounts of said
testatrix as guardian as aforesaid remained open at the time of her
death, and the said estate of the complainants and the said
defendant was dealt with by said testatrix after the execution of
said paper in the same manner as before the same was so drawn and
signed; that therefore, by reason of the circumstances, a trust
existed on the part of the said testatrix towards the complainants
and the said defendant in respect of their said estate, and that
the relation of said testatrix to the complainants and the said
defendant was recognized and treated by her to the day of her death
as that of trustee and
cestuis que trustent, and not of
debtor and creditors.
Defendant further set forth and contended that by her last will
and testament, the said testatrix devised, subject to certain
bequests of comparatively trifling amount, all her estate, real and
personal, as well the estate of the said defendant and the
complainants held in trust for them as her own estate; that such
devise operated the extinguishment, discharge, and payment of any
claim upon the part of the complainants in the premises; that their
claims ceased to be provable as debts against the estate of said
testatrix; that such alleged extinguishment, discharge, and payment
are not affected by the fact that the said defendant and the
complainants took title to the real estate of said testatrix by
descent, instead of by devise, in consequence of the insufficient
execution of the will, and that the several indebtednesses alleged
by these complainants were never recognized or acted upon by said
testatrix, and no part payments were made by her on account
thereof.
Upon consideration of the petition and answer, the court made an
order that further action upon the petition be suspended
"until said other matters whereof this Court had not
Page 165 U. S. 400
jurisdiction shall be first tried and determined in the
appropriate tribunal, in such manner as counsel may advise."
Thereupon, on January 8, 1890, complainants filed their original
bill in this cause, to which Augusta P. Glover interposed a
demurrer and answer, and also filed a cross-bill, in which her
husband joined. This was followed by a variety of answers, motions,
demurrers, and amendments unnecessary to be set forth in detail, as
the material facts already sufficiently appear. Subsequently, a
considerable amount of oral and documentary evidence was taken and
returned, and the cause having been transferred to the Court of
Appeals of the District in pursuance of the Act of Congress
approved February 9, 1893, that court, on November 8, 1893, entered
a decree that the complainants were entitled to the relief prayed
for, and that the cause be remanded to the supreme court, with
directions to enter a decree in conformity with the opinion of the
court. 1 App.Cas.D.C. 466. From this decree Augusta and her husband
appealed to this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The object of this bill is to determine certain questions in aid
of another branch of the same court, sitting as an orphans' court,
and already in possession of a petition by the complainants to
establish an indebtedness against the estate of their mother,
action upon which petition was suspended by that branch of the
court, awaiting the determination of these questions.
The theory of the complainants is that the amount of Mrs.
Patten's indebtedness to her daughters was adjusted and settled by
mutual agreement of the parties, evidenced by the instrument of
September, 1885, at the sum of $102,600 each; that defendant,
Augusta P. Glover, received her share upon her marriage by a
transfer of $80,000 of the United States bonds,
Page 165 U. S. 401
worth $102,800, and that the complainants received a credit in
October, 1887, of $11,250 each.
The theory of the appellants is that the relation of the
testatrix to her children was that of trustee, and not of debtor,
and that the will, by reason of its provisions, operated the
extinguishment, discharge, and payment of the complainants' claims,
and that said claims ceased to be provable as debts against the
estate.
Several assignments of error are filed, which will be disposed
of in their order.
1. That Helen was improperly joined in the bill as complainant,
because she was not a party to the instrument of September, 1885.
Being a minor, she did not sign the instrument, and would not have
been bound by it if she had done so; but, if there were any
indebtedness to the children, it arose from the fact that the
mother was guardian of all of them; that the law made no
discrimination between them, and such indebtedness was due as much
to Helen as to the others. While the instrument makes no mention of
the children by name, it was evidently intended as much for her
benefit as that of the other sisters, and, upon her arriving at her
majority, she had her election either to disaffirm it or to adopt
it as an adjustment of the amount due to herself. She chose the
latter alternative, and in her petition to the orphans' court of
May 10, 1889, for the allowance of her claim, avers:
"That the petitioner, Helen Patten, being fully advised in the
premises, now adopts and accepts said agreement and the settlement
aforesaid as though she had duly participated in the same at the
time of the making thereof."
An infant may affirm a contract or settlement thus made for her
benefit, and may sue upon it as if she were originally a party to
it. Irrespective, however, of any promise which the law might imply
from the procurement by Mrs. Patten of the execution of this
instrument by her daughters, if there were any indebtedness arising
from her relation as guardian to her children, it existed in favor
of Helen as much as the others, and, as evidence of the amount of
such indebtedness, this document is as potent in her behalf as in
that of her sisters.
Page 165 U. S. 402
2. The second assignment, that there is a nonjoinder of
necessary parties defendant, is based upon the theory that there
are three legatees interested in the estate to the amount of
$45,000; that there is no averment that these legatees have been
paid or can be paid in full out of the personal estate if the
claims of the complainants and those of other creditors are
satisfied. There is nothing in this objection. The complainants do
not sue as executrices, but expressly aver that they bring the suit
"in their own right," as creditors of their mother's estate, and
for the purpose of establishing their debt. To such a suit other
creditors are not necessary parties. The case of
Dandridge
v. Custis, 2 Pet. 370, is directly in point. This
was a suit brought by the plaintiff against the executors of the
will of Mrs. Martha Washington to obtain payment of legacies
bequeathed to him in her last will. In reply to an objection that
the residuary legatees under the will should have been made
parties, Mr. Chief Justice Marshall observed:
"They have undoubtedly an interest in reducing the sum to be
allowed out of it to the complainant, but they have the same
interest in reducing every demand on the estate. Whatever remains
sinks into the residuum, and that residuum is diminished as well by
the claims of creditors and specific legatees as by this. In all
such cases, the executors represent the residuary legatees and
guard their interests. It is a part of that duty which requires
them to protect the interests of the estate. In such suits the
residuary legatees are never made parties. To require it would be
an intolerable burden on those who have claims on an estate in the
hands of executors."
If this be the law with respect to residuary legatees, who are
necessarily and directly interested in defeating every other claim
against the estate, with much greater force is the rule applicable
to specific legatees, who are in much less danger of being affected
by the allowance of other claims. That such legatees need not be
joined is as clearly settled as that other libelants need not be
joined as respondents in a suit in admiralty to establish a claim
against a vessel, although they may be admitted to defend.
Wiser v. Blachly, 1 Johns.Ch. 437;
Pritchard
v.
Page 165 U. S. 403
Hicks, 1 Paige 270;
West v. Randall, 4 Mason
181; Daniell's Ch.Prac. c. 5, § 2.
3. That there is no equity in the bill. Defendants' position in
this connection is that the case made is an indebtedness
created by the instrument of September, 1884, to which
Helen was not a party; that there was no agreement by Mrs. Patten
to pay the sum named or any sum whatever, and that the paper
constituted a mere offer on the part of each of her children to
receive a specified sum in satisfaction of her claim against her as
guardian; that this paper therefore is no contract, and contains no
promise on the part of the mother; that the only right which the
complainants have to come into equity arose from the fact that,
being executrices, they cannot sue themselves, and therefore cannot
recover by action at law the debt due them by their testatrix; that
if the bill failed to show that they could have sued at law during
their mother's lifetime or could now sue her executrices, were they
some one else than themselves, they have no better standing in
equity than at law.
This, however, is a somewhat inaccurate statement of the
complainants' case. The averment of the amended bill is (paragraph
6) that in her lifetime, the said testatrix was indebted to the
complainants and the defendant Augusta P. Glover, by reason of the
fact that they had inherited from their father an estate which was
received and retained by the testatrix as their guardian, and that,
in
"September, 1885, the amount of indebtedness of said testatrix
in the premises, on account of the estate aforesaid, was adjusted,
settled, and determined by mutual agreement of the said testatrix,
on the one part, and, on the other, the complainants and the said
defendant, except the complainant Helen Patten,"
who was a minor. The amended bill further avers (paragraph 12)
that
"it then was, and for a long time theretofore had been, the duty
in law of said testatrix, guardian as aforesaid, to deliver to
them, and each of them, their said estate as aforesaid, the same
consisting, in contemplation of law, exclusively of money; that
thereby the said testatrix, as guardian aforesaid, was and had
theretofore become in law the debtor of the complainants
Page 165 U. S. 404
and the said defendant, and each of them, without regard to said
paper so drawn and signed as aforesaid, and the said paper was only
in law an adjustment, accounting, and settlement between the said
testatrix, guardian as aforesaid, on the one part, and the
complainants and said defendant, on the other, having for its
object and purpose the ascertainment of the amount of indebtedness
of the said testatrix to the complainants and the said defendant,
and each of them."
As, under the laws of Nevada, the children were entitled to
one-half their father's estate, and as the mother received the
entire estate, and dealt with it as if she were the sole
proprietor, although she was in fact guardian and trustee for her
children as to their share, it requires no argument to show that
she held a moiety in trust for them, was bound to account to them
whenever an account was demanded, and was bound to pay to each of
them one-fifth of such moiety. Regularly, this accounting should
have been made to the court in Nevada, which granted the letters of
administration; but, as there was no one interested in the estate
except herself and her children, she adopted the easier course of
settling with them directly, and procured from them their assent to
the instrument of September, 1885. While Helen was not a party to
this instrument, by reason of nonage, as she stood in the same
position to the estate as her sisters, and was equally a creditor
of her mother, there is no reason why the instrument may not be
used as an acknowledgment of her mother's indebtedness to her as
well as to the others. The fact that the sisters became executrices
of their mother's will did not cancel such indebtedness, but
rendered it impossible to bring an action at law, inasmuch as they
would be plaintiffs in their own right and defendants as
executrices. They did, however, petition the orphans' court for the
allowance of their claims, making their sister (the only person
interested adversely to them) a party to the proceeding. That
court, instead of passing on the matter directly, thought it a
proper subject for the advice of a court of chancery, and directed
this bill to be filed. We are of opinion that, upon its face, it
discloses a good cause of action.
Page 165 U. S. 405
4. That the cause of action is barred by the statute of
limitations. It has always been held by the Supreme Court of
Maryland that the act of 1715, which is still in force in this
District,
Shepherd v. Thompson, 122 U.
S. 231,
122 U. S. 234,
does not apply to a claim by an executor against his estate,
inasmuch as the executor cannot sue himself at law,
State v.
Reigart, 1 Gill, 1;
Brown v. Stewart, 4 Md.Ch. 368;
Spencer v. Spencer, 4 Md.Ch. 456;
Semmes v. Young's
Adm'r, 10 Md.Ch. 242.
Irrespectively of this, however, it appears that in October,
1887, Mrs. Patten loaned $45,000 to one John E. Beall, and took a
note payable to the order of the four complainants, which was
subsequently paid to them. The testimony of the complainants as to
this transaction is objected to upon the ground that, by Rev.Stat.
§ 858,
"in actions by or against executors, administrators, or
guardians in which judgment may be rendered for or against them,
neither party shall be allowed to testify against the other as to
any transaction with or settlement by the testator, intestate, or
ward unless called to testify thereto by the opposite party or
required to testify thereto by the court."
Conceding the statute to be applicable to this case, it does not
apply to the testimony of Beall himself, who swore to taking a loan
of this amount from Mrs. Patten, and giving a note payable to the
order of the four complainants, Mrs. Patten stating
"that the money was advanced to them out of the fund belonging
to them out of their father's estate, and that she wished them to
have the income of that amount of money;"
that
"she wished the interest notes made payable at intervals of
three months, so that they might have the income, and she used the
words 'pin money,' and further declared that she never had made
them any allowance, and she wished them to have for themselves,
every three months, the interest of this money to spend for
themselves."
She also said
"that $45,000 was being distributed in this manner to the four
girls as a part of what was coming to them from their father's
estate, and she said that she had made advances to Mrs.
Glover."
The note was subsequently paid to the four daughters. The
testimony of another witness is to the effect that Mrs. Patten told
him
"that it was some money she
Page 165 U. S. 406
wanted to give those four girls for pin money to give them a
sense of independence; . . . and further that she had already
provided for the other daughter (the married daughter) quite
liberally, and she thought that she ought to give these girls
something."
This testimony is not only uncontradicted, but accords with the
probabilities of the case. It is scarcely reasonable to suppose
that Mrs. Patten, who was indebted to her daughters in the sum of
over $400,000, should have advanced them the large sum of $45,000
purely as a gift, and with no intention of being credited with it
upon her debt, particularly in view of her statement to the witness
Beall that she made advances to Mrs. Glover. We think this must be
regarded as payment upon the account of her indebtedness, and that
it removed the bar of the statute of limitations.
In aid of this construction, there is the presumption that where
a parent, being a debtor to his child, makes an advancement to such
child, it is presumed to be a satisfaction
pro tanto of
the debt. 1 Pomeroy's Eq.Juris. § 540;
Plunkett v. Lewis,
3 Hare 316.
5. That the communications made by Mrs. Patten to the witness
Hillyer were privileged from the fact she consulted him as her
legal adviser. There is some doubt as to whether she did consult
him in that capacity, or simply as a friend, who had for a good
many years been the attorney of her husband. It is clear that while
she visited him frequently concerning the settlement of her account
as administratrix and guardian, she paid him nothing, and he made
no charge against her. But whatever view be taken of the facts, we
are of opinion that in a suit between devisees under a will,
statements made by the deceased to counsel respecting the execution
of the will, or other similar document, are not privileged. While
such communications might be privileged if offered by third persons
to establish claims against an estate, they are not within the
reason of the rule requiring their exclusion when the contest is
between the heirs or next of kin. That reason is thus stated by
Lord Brougham in
Greenough v. Gaskell, 1 Mylne & Keen
98:
"But it is out of regard
Page 165 U. S. 407
to the interests of justice, which cannot be upholden, and to
the administration of justice, which cannot go on without the aid
of men skilled in jurisprudence, in the practice of the courts, and
in those matters affecting rights and obligations which form the
subject of all judicial proceedings. If the privilege did not exist
at all, everyone would be thrown upon his own legal resources.
Deprived of all professional assistance, a man would not venture to
consult any skillful person, or would only dare to tell his
counselor half his case."
In
Russell v. Jackson, 9 Hare 387, the contest was
between the heirs at law and a devisee. The heirs claimed that the
devise was upon a trust, unexpressed because illegal. It was held
that a solicitor, by whom the will was drawn, should be allowed to
testify what was said by the testator contemporaneously upon the
subject. Vice Chancellor Turner, in delivering the opinion of the
court, observed:
"In the cases of testamentary dispositions, the very foundation
on which the rule proceeds seems to be wanting, and in the absence,
therefore, of any illegal purpose entertained by the testator,
there does not appear to be any ground for applying it. . . . That
the privilege does not in all cases terminate with the death of the
party I entertain no doubt. That it belongs equally to parties
claiming under the client as against parties claiming adversely to
him I entertain as little doubt, but it does not, I think,
therefore follow that it belongs to the executor as against the
next of kin, and in such a case as the present. In the one case,
the question is whether the property belongs to the client or his
estate, and the rule may well apply for the protection of the
client's interests. In the other case, the question is to which of
two parties claiming under the client the property in equity
belongs, and it would seem to be a mere arbitrary rule to hold that
it belongs to one of them rather than to the other."
An epitome of this case is given in the opinion of Mr. Justice
Swayne in
Blackburn v.
Crawfords, 3 Wall. 175,
70 U. S. 193,
in which case, on a question of marriage and legitimacy, it was
held that an attorney who drew the will for the alleged husband, in
which the children of the connection set up as wedlock were
described
Page 165 U. S. 408
as the natural children of the testator, might testify as to
what was said by the testator about the character of the children
and his relations to their mother, in interviews between himself
and the testator preceding and connected with the preparation of
the will.
As was said in that case, page 194:
"The client may waive the protection of the rule. The waiver may
be expressed or implied. We think it as effectual here by
implication as the most explicit language could have made it. It
could have been no clearer if the client had expressly enjoined it
upon the attorney to give this testimony whenever the truth of his
testamentary declaration should be challenged by any of those to
whom it related. A different result would involve a perversion of
the rule, inconsistent with its objects, and in direct conflict
with the reason upon which it is founded."
See also Hunt v. Blackburn, 128 U.
S. 464,
128 U. S.
470.
The same rule has been applied in several cases in the state
courts:
In re Layman's Will, 40 Minn. 371;
Scott v.
Harris, 113 Ill. 447;
Graham v. O'Fallon, 4 Mo. 338;
Wharton on Evidence § 591;
Goddard v. Gardner, 28 Conn.
172; Weeks on Attorneys § 165.
6. The objection that the complainants were incompetent to
testify as to their mother's statements and as to transactions in
which she took part is entitled to some weight, and is not free
from doubt. There is much reason, however, for saying that as the
object of this testimony was not to prove complainants' claim
against the estate, but to show that their sister Augusta had had a
similar claim, and had been paid, and the testimony related to
conversations between Mrs. Patten and her daughter Augusta, the
statute did not apply; in other words, that it was not a
transaction with or a statement by the testator within the meaning
of the statute.
Monongahela National Bank v. Jacobus,
109 U. S. 275;
Wharton on Evidence § 468.
We do not, however, consider this testimony indispensable to the
maintenance of complainants' bill. Discarding it for the present
from our consideration of the case, there is no doubt that Mrs.
Patten became the guardian and trustee for
Page 165 U. S. 409
her children to the extent of one-half of her husband's estate;
that she rendered no account of her stewardship; that at the
suggestion of the witness Hillyer, she procured the document of
September, 1885, to be drawn up and signed by her daughters; that
by this instrument each of the daughters except Helen agreed to
accept the sum of $101,600 in full and complete settlement of their
accounts, claims, and demands between each of them and their mother
arising out of or connected with the administration of their
father's estate, and requested that upon the presentation of this
agreement and a receipt for that amount, the court having
jurisdiction would, without further investigation, pass the final
accounts of their mother as administratrix and guardian and
discharge her bondsmen. There is no doubt, too, that in the month
of February, 1887, Mrs. Patten called at the bank of Riggs &
Co. and inquired of a member of the firm what amount of bonds, with
the premium added, would make up a sum somewhat over $100,000,
stating that "her purpose was to transfer these bonds to one of her
daughters about to be married;" that he furnished her the necessary
figures, "somewhere in the neighborhood of $79,000, which made up
about the amount she wished to use," and that he gave her a
memorandum of them; that Mrs. Patten told him afterwards that she
put these bonds under her daughter's plate, and that she went off
and forgot them. The testimony of the complainants, which for this
purpose is competent and uncontradicted, was: That Mrs. Glover
asked the witness Josephine on one occasion, when she had returned
home, where she had been. That she replied that she had been to the
Treasury, where her mother went to transfer her bonds to her name
to the amount of $80,000, to which Mrs. Glover said, "That is not
enough." Josephine replied: "It is too much; if I had not been
there, you would have gotten but $79,000." That she saw the bonds
in the possession of her sister Mrs. Glover, who returned them to
her mother with a request that she should keep them for her, and
that they were subsequently sent to her at St. Louis by registered
mail. That Mrs. Glover repeatedly said to her sisters that "when
she was married, she would ask for her money; that she had
Page 165 U. S. 410
a right to it, and she would ask for it." And that she
repeatedly admitted afterwards having received her share of her
father's estate. This admission is sworn to by each one of the
complainants, and is entirely uncontradicted.
The court below was of opinion that upon this state of facts,
the complainants were entitled to the relief prayed, and in this
opinion we concur. We can come to no other conclusion than that,
upon the undisputed facts of the case, there was an indebtedness by
Mrs. Patten to her daughters; that such indebtedness was liquidated
by the agreement of September, 1885, and that the defendant Mrs.
Glover received an amount in bonds which at their market value, was
somewhat greater than $100,000. As this payment was made to her
upon the eve of her marriage, and as the amount was evidently
computed as near as could be to the amount of the indebtedness, as
stated in the agreement of September, 1885, the presumption is that
it was intended as an advance and as a satisfaction of the debt. 1
Pomeroy's Eq.Jur. § 540;
Plunkett v. Lewis, 3 Hare
316.
7. The claim that the general bequest to her daughters,
contained in Mrs. Patten's will, was an extinguishment of her debt
to them is equally unfounded. The appellants rely in this
connection upon the general proposition that where a debtor
bequeaths to his creditor a legacy equal to or greater than the
amount of his debt, it shall be presumed, in the absence of a
contrary intent inferable from the will, that the legacy was
intended to be in satisfaction of the debt. Had Mrs. Patten,
subsequent to the execution of the agreement of September, 1885,
made special bequests to her daughters, or either of them, of
amounts equal to or greater than the amount of her indebtedness to
them, the rule might perhaps be invoked as an answer to their
claim; but the rule is in fact nothing more than a presumption, and
may be rebutted by slight evidence that such was not the intention
of the testator.
Spencer v. Spencer, 4 Md.Ch. 456;
Gilliam v. Brown, 43 Miss. 641;
Williams v.
Crary, 4 Wend. 443,
s.c., 5 Cow. 368;
Eaton v.
Benton, 2 Hill 576;
Reynolds v. Robinson, 82 N.Y.
103;
Heisler v. Sharp, 44 N.J.Eq. 167;
Homer's
Executors
Page 165 U. S. 411
v. McGaughy, 62 Penn.St. 189;
Crouch v. Davis'
Executors, 23 Gratt. 62. These cases hold that the mere fact
that the debt was unliquidated is enough to rebut the
presumption.
It requires no argument to demonstrate that the rule has no
application to a case where the bequest is a general one -- all of
the property of the testator "to be divided between them share and
share alike" -- and the will is made six years before the
indebtedness is liquidated. That Mrs. Patten evidently did not
consider her debt to her daughter Augusta extinguished by the will
is evident from the fact that she paid the amount at the time of
the marriage of her daughter, and there is no reason to suppose
that she intended to treat her differently from her other
daughters. Evidently the whole theory of a debt's being
extinguished by a bequest presupposes a bequest subsequent to the
indebtedness, and while the indebtedness may have been said to have
arisen in this case upon the receipt of the children's moiety of
their father's estate, it was never treated by any of the parties
in the light of an indebtedness until the amount had been
liquidated by the arrangement of September, 1885.
The effect of rejecting the claim of the complainants would be
to prefer Mrs. Glover to her sisters to the extent of $102,800,
when there is absolutely nothing in the will of the mother, in the
arrangement of September, 1885, or in the facts or circumstances of
the case to indicate that this was ever contemplated by Mrs. Patten
or by the daughters themselves. The instincts of a mother would
naturally lead her to put her daughters upon an exact equality, and
the case is manifestly one for the application of the legal maxim
that "equality is equity." That it ever entered her mind that one
of her daughters should be preferred to the others in the very
large sum of $102,800 is extremely improbable.
8. Whether the fact that Mrs. Glover had been paid her share of
the indebtedness was strictly pertinent to the issue or not, it was
alleged in the bill and in the amended bill, was first demurred to,
and then denied in the additional answer. The fact had some
tendency to prove that the indebtedness,
Page 165 U. S. 412
which was incurred and liquidated in favor of all the sisters
under the same circumstances, was a genuine one, was recognized
both by the testatrix and Mrs. Glover as such, and that the bill
was not an attempt on the part of the complainants to obtain a
preference over their sister.
It would have been more satisfactory if the defendant had
offered herself as a witness and given her version of the
transaction, or at least had put forward some testimony tending to
show a different theory; but as she preferred to rest her case upon
the testimony of the complainants, and as the facts proved are
susceptible of but one construction, we can only assent to the
conclusion of the court below.
The fact that Mrs. Patten did not pay, or agree to pay, her
daughters interest upon the amount of her indebtedness as
liquidated is urged as a reason for holding that she continued to
regard herself as trustee for her children in respect to their
share of their father's estate, and never contemplated that an
indebtedness to them had been recognized. This, however, seems
inconsistent with the instrument of September, 1885, which was
evidently prepared for a purpose, and was wholly unnecessary if her
relation to her daughters were solely that of a trustee for their
benefit. If it were for the purpose of fixing her liability, for
which the sureties upon her bond were to be responsible, it would
scarcely be consistent to hold that, so far as concerned her
relations with her daughters, it was not intended to create a
liability. It either created a liability or it did not. If it did,
it was a liability to her children. If it did not, the instrument
was useless.
It is true that no interest, as such, was paid or promised, but
as an offset to that, the daughters were never charged with their
expense of maintenance, although most of them were of age. What the
result would have been if an account had been regularly opened, and
interest credited to each daughter, and a charge made against each
for her maintenance, we can only conjecture; but, in the loose way
in which business is usually done between members of the same
family and household, it is not singular that no such account was
kept. If Mrs. Glover had not received her share, it would make
but
Page 165 U. S. 413
little practical difference whether the agreement of September,
1885, were treated as an operative instrument or merely one for the
purpose of satisfying the sureties on the administratrix' bond. As
the effect of the latter construction would be to prefer Mrs.
Glover to this amount over her sisters, the court will construe it
as the parties themselves have construed it. It is apparent from
what has been said that no interest should be allowed prior to the
death of Mrs. Patten.
The decree of the court below is therefore
Affirmed.
