Gittings v. Winter

Briscoe, J., delivered the opinion of the Court. This proceeding was instituted on the i ith day of June, 1903, in the Circuit Court for Howard County, by the plaintiff, as executor of the last will and testament of Annie M. Winter, deceased, against the defendant, Henry Winter, the surviving husband, to recover the proceeds of certain securities alleged to belong to the appellant’s testatrix at the time of her death and also for an injunction to restrain its disposition', pending the decision. Mrs. Winter died on the 10th day of November, 1902, leaving a last will and testament and leaving the defendant, a surviving husband. John S. Gittings, the plaintiff in the case, and a granddaughter, Eleanor A. Moale, a daughter of a deceased child, are children by a previous marriage to William Gittings.

These are her only heirs at law, and are the legatees mentioned in her will. The defendant died after the appeal in the case, and his executors are the present appellees. The property in controversy is derived from the sale of certain bonds and stocks which belonged to the wife at the time of her marriage in 1869 to Mr. Winter, but which were subsequently sold by him and invested in his own name, while in the State of California. The property is claimed on the part of the appellant, as property belonging to the testatrix and which had been placed in her husband’s hands to be sold, and reinvested for her and to belong to her.

And should at her death, belong to her heirs. ¹⁹⁶ On the other hand, the appellees contend, that the stocks and bonds belonging to the wife at the time of her second marriage, and which were afterwards sold, were absolute and unconditional gifts to the husband by the wife, and were not coupled with any condition or agreement that he was to will it, at his death to his wife, or to her heirs, or to hold the property otherwise than as his own. The facts out of which the controversy arose are fully disclosed by the pleadings and ■ the evidence and may be thus condensed and stated. By the second paragraph of the bill it is alleged, that a few days after the death of the .testatrix the defendant in a conversation with the plaintiff, who had then qualified, as the executor of the estate, inquired whether the testatrix had left amongst her papers any memorandum of certain stocks and bonds which he had sold for her many years ago and reinvested the' proceeds thereof in Calfornia for her; that such a memorandum existed and the plaintiff would find it. He further stated, that the testatrix had placed in his hands certain securities consisting of bonds and stocks which belonged to her amounting to about thirty thousand dollars to sell and reinvest for her; that he had sold these securities for greenbacks and with the greenbacks had bought gold and with gold had purchased Securities in California, and held them in his own name.

He also stated that the testatrix had often reminded him that the investments were hers and should be returned after her death to her heirs; that he admitted the securities were hers and that he had promised her he would embody a provision in his will securing the reinvestment of the property made by him for her at his death. And that he afterwards repeatedly admitted to him, that the reinvestments of the property were for the testatrix. In the second paragraph of this bill it is further alleged that after the conversation above referred to, the plaintiff did find the memorandum, amongst the papers of the testatrix and in her own handwriting; that it appears that the property sold consisted of 64 shares of the stock Camden and Amboy Railroad Company; $10,000 of Missouri State bonds; $4,000 of ¹⁹⁷ bonds of the Pittsburgh, Fort Wayne and Chicago Railroad; $2,000 of bonds of the Marietta and Cincinnati Railroad; 8 shares of the capital stock of the Northern Central Railroad, and 93 shares of the stock of the Lehigh Valley Railroad, and that these bonds and stocks sold for the sum of $29,000. The fourth and fifth paragraphs of the bill further charge that in the month of February, 1903, in a conversation with the defendant, the plaintiff stated that he had found the memorandum of stocks and bonds heretofore mentioned, and presented to him a list of the securities as taken therefrom.

The defendant examined the paper, acknowledged and identified the securities so sold, and said that he had a similar memorandum among his papers; that the securities were sold for greenbacks and the greenbacks turned into gold, so that the securities he purchased for her were the proceeds of the sale of securities referred to in the paper shown to him and identified by him. That he subsequently applied to the defendant for a written acknowledgment that the investments had been made for the testatrix out of her property and he would turn them over to her heirs, at his death, but received no reply to this application. The bill also charges in the sixth and seventh paragraphs thereof, that the testatrix frequently stated to the plaintiff in her lifetime, that the defendant had a large amount of her property in his hands, and did not pay the interest thereon to her, but had applied all the income and dividends to his own use, since the property was placed in his hands in October, 1869. That by the agreement between the defendant and testatrix as to these investments, he could only hold them for the term of his natural life and cannot claim any portion of her estate as her surviving husband.

The special prayer of the bill, in addition to the usual prayer for general relief, is, that the defendant should make, sign and deposit with the Clerk of the Court, an inventory of the specific investments of the testatrix property so made by him; that he bring the securities into Court to be dealt with and disposed of by the Court; that he be restrained by injunc ¹⁹⁸ tion from selling or disposing of these securities, and that a decree be passed, declaring that the defendant is entitled to no interest in the securities other than the right to receive the income and dividends during his life, and that he has no interest in the residue of the testatrix property, as surviving husband. The defendant, on the 6th of August, 1903, answered the bill, wherein he admits that he received from his wife all the securities herein mentioned, except the eight shares of Northern Central Railroad stock; that with the knowledge of his wife he sold the securities for greenbacks and converted these into gold; that the amount realized from the sale of the stocks and bonds was $26,310.55 in currency and $21,027.83 in gold. He avers, that the stocks and bonds were an unconditional gift to him from his wife, after their marriage and denies that it was accompanied by an agreement that he was to will or to hold the property otherwise than as his own. He also avers, that his wife did not in her lifetime claim or assert any right or claim to the proceeds of the sale of the stocks and bonds or the investments thereof; that be held the investments in his own name and as his own property, with her knowledge, and without any dispute, question or claim thereto by her.

He also denies having had the conversations with the plaintiff, as alleged in the bill, and further denies that he ever admitted that the investments were made for his wife’s benefit or that he promised to hold them for the benefit of the heirs of the testatrix. He further avers, that nothing that occurred between himself and his wife can legally or equitably defeat his right, as surviving husband to his legal estate in the property owned by his wife, at the time of her death. And he relies upon and claims the benefit of the statute of limitations, as a bar to the plaintiff’s suit, and insists that the plaintiff is equitably estopped and precluded from prosecuting the same by the laches of the defendant’s testatrix. The Circuit Court for Howard County sustained the defendant’s contention and from a decree dissolving an injunction which had been previously granted and dismissing the plaintiff’s bill, this appeal has been taken. ¹⁹⁹ It appears, then, from the pleadings in the case, that the object of the bill is, in substance, to declare the proceeds of certain securities, which were derived from a sale of the wife’s property, conceded to be her property at the time of her second marriage, but which was subsequently sold and reinvested by the husband, in his own name, and held by him at the time of his death, to be the property of the plaintiff’s testatrix, and to belong to the plaintiff as the legal representative of the wife.

The principal dispute in the case relates to questions of fact, and the proper construction to be given a memorandum in the handwriting of the testatrix, and found by the plaintiff among her papers after her death. There were but three witnesses in the case, two on the part of the plaintiff and one for the defendant, he having been examined in his own behalf. The memorandum of the stocks and bonds, upon which the claim of the appellant, partly rests, is dated December, 1891, and is as follows: “Sold by Mr. Winter in 1869, for par, 64 shares Camden and Amboy. 10.000 bonds Missouri State bonds. 4.000 Pittsburg, Fort Wayne and Chicago. 2.000 Marietta Cincinnati bonds. 8 shares Northern Central R. R. 93 Lehigh Valley R. R. It brought 29,000 when sold. List of property which Mr. Winter sold belonging to me given him by me, Oct., 1869.

Copy taken from Mr. Winter’s Acc. Book marked “private.” Signed, Annie M. Winter. On the opposite side of the paper is an additional entry, also in the handwriting of the testatrix, to this effect, “My property given into the hands of my husband, Henry Winter, Oct. 1869. Sold by him for $29,000.” Signed, Annie M. Winter.

And immediately under the foregoing and in the same handwriting, is the following: “At Morgan Bankers, New York, hold for Mr. Winter his securities as follows: ²⁰⁰ 10.000 S per cent bonds of the Northern Pacific R. R. 20.000 of the Atchinson; 1 opeka and Santa Fe R. R. bonds from letter from Morgan Feb. 28th, 1896.” It will be thus seen, as the question raised on this branch of the case is one of fact, and is to be solved by the evidence disclosed in the record, it will be necessary for us to quote at length, from the testimony of the witnesses. Mr. John S. Gittings, the plaintiff in the case, testified that his mother died on the 10th of November, 1902, and that letters testamentary were granted to him on her estate; that subsequently he had the following conversation with the defendant. “He asked me a few days before I had examined her box in the Mercantile Trust Company, if I had found any memorandum of certain stocks and bonds formerly belonging to her which he had sold for her and reinvested for her in California.” “I told him I hadn’t found any, but she had mentioned many times in her lifetime the fact that he had reinvested thtxt money for heroutofthe proceeds of those securities, and he then said, “You will find that memorandum somewhere among her papers;” “she has got it I know.” I asked him then where he thought I would be likely to find it and he said “in that desk,” “pointing to her private desk that stood by the door, and a few days afterwards I sent over and got some large articles of furniture belonging to her, the desk being among them, and examining the desk, going over the papers there, the bills and things of that kind, receipts and so-, forth, I found this memorandum, which is marked Exhibit A.” He said further, on that occasion, that those securities were