Carey v. Dennis

Bonds executed by a father in favor of hiá' sons, and delivered to a third party, with directions “to take care of them, and deliver them to his sons, in ease he died without a will,” are mere voluntary gifts, revocable at pleasure, and not evidences of debt; and, though delivered to the sons after the father’s death intestate, cannot have any operation, except as testamentary papers. To authorize a decree for the sale of lands to pay debts under the act of 1785, ch. 72, sec. 5, there must be an indebtedness existing in the lifetime of the deceased: the debt need not be payable in his lifetime, but must be shown to be existing. An instrument in any, form, whether a deed or a bond, where the obvious purpose is that it shall not take effect till after the death of the party making it, is a will, and H matters sot whether the party, at the time of executing it, intended to make a will or not. Where an instrument does not operate inter vivos, but is made to depend, for its whole operation, upon the event of the death of the maker to consummate it, it can only take effect as a testamentary paper. To vest any interest in the obligee, or, in other words, to create a debitum in presentí, a delivery of the bond, in the lifetime of the obligor, to the obligee, or to some one for his use, is necessary. Delivery is essential to the validity of every deed; it need not be made directly to the party who is to take, but may bo made to a third person, to hold for him as his trustee; in such a case there is a present interest vested, the delivery being regarded in law as if made to the party himself. But bonds placed in the hands of a third party as the agent of the obligor, and not intended to be delivered, a,nd not, in fact, delivered to the obligees until after the death of the obligor, are not debts, but in the nature of testamentary papers. In such a case, the party in whose hands the bonds were placed, is the mere agent of the obligor, and such agency is revoked by his death, and cannot afterwards be executed, and the subsequent delivery of the bonds to the obligees, is a void act, which vested no right in them as creditors of the obligor.

Appeal from the Equity Side of the Circuit Court for Worcester county. This was a creditors’ bill filed on the 17th of November 1854, by the appellants, two of the sons and heirs at law of Levin Carey, deceased, against the appellees, his administrator and other children and heirs at law, for the sale of the deceased’s real estate, to pay his debts. . The bill alleges that Levin Carey was, in his lifetime, indebted to the complainant Elijah in the sum of $12,000, and to the complainant Thomas in the sum of $10,000, on his certain bills obligatory, dated the 9th of December 1853, which are exhibited with the bill, and being so indebted, and having real and personal estate of great value, died intestate in the year 1853, leaving as his children and heirs at law, Joseph Carey, Nancy, wife of Thomas Dennis, Mary, wife of Peter L. Davis, Sophia T. Carey, and the complainants, ail of full age, to whom his real estate has descended; that letters of administration have been duly granted to Joseph Carey, who, in virtue thereof, has possessed himself of the deceased’s personal estate of great value; but complainants “are informed and believe that the same is not sufficient to discharge all the debts due and owing by the said Levin Carey, at the time of his death,” and are advised that any deficiency in said personal estate ought to be supplied by a sale of the real estate of their aforesaid debtor. The bill then prays for a sale of the real estate accordingly, and for general relief.. The obligations filed as exhibits with the bill, were written upon paper duly stamped, and the following is a copy of that in favor of Elijah Carey, the one in favor of Thomas H. Carey being precisely the same, except the name of the obligee and the amount, $10,000 instead of $12,000: “$12,000.00. For value received, I bind myself, my heirs and assigns, &c., to pay or cause to be paid to Elijah Carey, his heirs, &c., &c., the sura of twelve thousand dollars, with interest from the date until paid; as -witness my hand and Seal, this ninth day of December, eighteen hundred and fifty-three. Levin Caret, (Seal.) Testes, — Hillary R. Pitts, 1853, Deem. 9th. Solomon Carey.” Dennis and wife, and Davis and wife, in their answer, deny that these papers ever were the bills obligatory of said Levin, or were ever obligatory on him, or created any indebtedness on his pari to the complainants, or that they were ever either actually or virtually delivered by him to the complainants, or that they ever became obligatory on him in his lifetime, or upon the respondents since his death, or that the real estate which has descended to them is liable to be sold for the payment of the sums of money mentioned therein, or any part thereof. They also denji that the said Levin ever received from the complainants, or either of them, any valuable consideration for the sums of money mentioned in said papers, or any part thereof, and wholly deny that the same, or any part thereof, was a just claim against the said Levin, in his lifetime, or is a just claim against the respondents, or the real estate which has descended to them from the said Levin. They admit that he died intestate as to his real estate, leaving as his children and heirs at law the parties whose names, ages and marriages are correctly stated in the bill, and that Joseph Carey had administered upon the personal estate of the deceased, but they deny that said personal estate is insufficient to discharge all the debts due and owing by the deceased at the time of his death, and also deny that this court has any power or jurisdiction to decree the sale of the real estate so descended to the respondents, for the payment of said pretended claims, or either of them. Joseph Carey, in his answer, admits the allegations of the bill to be true, and submits to such decree as may be right. Sophia T. Carey, in her answer, admits that the names, ages and intermarriages of the children and heirs at law of her father, Levin Carey, are truly stated in the bill, and that administration on his personal estate has been granted to Joseph Carey, but says she knows nothing of her father’s indebtedness to the complainants, on the bills obligatory mentioned in the bill of complaint, or of any deficiency of his personal assets to pay bis debts, and is willing to submit to such decree as may be right. A general replication to the answers was then filed, and a commission issued, under which testimony was taken. Solomon Carey, a witness for the complainants, and a brother of the deceased, proved the execution, by Levin Carey, of these obligations in his presence, and that he, deponent, signed his name as a witness thereto, at the request of said Levin; that Doctor Pitts, Joseph and Elijah Carey were present at the time, and deponent thinks that Thomas Carey was also present, but will not say positively. In answer to interrogatories on the part of the complainants, as to whom the said papers were delivered after their execution, and as to what, if any thing, Was said by the said Levin Carey in regard to their execution and delivery, and generally in regard to their preparation, and his business as connected therewith, this witness says: “Said papers were delivered .in a package, with a similar one for $12,000 in favor of Joseph Carey, to me after their execution. Said Levin Carey told me that if he died without a will, to deliver them to his three sons, Joseph, Elijah and Thomas. I went there with Doctor Pitts, the Doctor having told me that my brother wanted to see me. After I got there, and after the usual salutations when persons meet, and after having spoken about the blessings of God towards him, he then told the Doctor he wished him to do some writing for him. The Doctor asked him what he wanted him to write. He said he wanted to make some arrangements for his sons; that if he died without some arrangements, they would be defrauded. He theft told the Doctor that he wanted him to draw three obligations, one for Joseph for $12,000, one for Elijah for the same, and one for Thomas for $10,000. The Doctor remarked to him that he supposed he wanted him to write his will, and, in order to do so, had brought a book with a form. He then said he had thought about making a will, but be could not do it; that it would be impossible to delineate his lands unless he had them run out and plats made of them. He then called on the boys to bring paper, pen and ink, and the stand was arranged for writing. He then told the Doctor that his sons had gone through a great deal of hardship for him, wet and dry, cold and hot, to Milton, Milford, and so on, with the wagon, day and night, and that they had gone through enough to kill a dog; that they had helped him to make the property, and that he could not die a just man and could not die satisfied without doing something for them; that in dying so they would be defrauded, and forever remain so. The Doctor then tried his pen and proceeded to draw a form. The form was drawn and shown to Mr. Levin Carey, and I looked at it too. He asked me if I thought it was drawn right. I told him I thought it was drawn in the usual way of drawing them things. The Doctor then proceeded to draw the three obligations as he had before directed him. The Doctor had drawn one or two of them, and my brother, who was looking oven them, told him that he had made a serious mistake, that he had left out. the word ‘dollars.’ The Doctor took it and interlined the word ‘dollars’, upon my brother having called his attention to the mistake. This error occurred in the note to Joseph, and the interlineation was made before the paper was executed. After they were all drawn and examined by the old man, he signed them, and while signing each he said, ‘I acknowledge this to be my hand and seal, for the true intent and purpose therein mentioned.’ He called the boys to take them and see if they were right. Joseph and Elijah were present; I do not know whether Thomas was or not. Elijah took them and looked at them, and said I believe they are right. Levin Carey said that Sophia had been with us and remained with us all the while, and that her health is not as good as the others, and she ought to have more than the other girls. After dinner, when the notes had been signed, sealed and passed to me, I asked him if he had forgotten Sophia? He said no; that he had not forgotten any of the girls; that they would all get some property. Previous to this time, he said that after that he supposed there would be some §6000 to divido among (hem. About the time he. was giving the obligations, he was speaking about their bearing interest from the date, or something about that. I then asked him if he intended to redeem them in land, and he made no reply. I repealed that question two or three times, and after the'second or third time, he remarked that his sons-in-law were shrewd fellows, and said that he wished his sons to have the ftdl value of the obligations. I do not think the obligations had been signed when I asked him this question.” This witness, also, in his examination in chief, proved that Nancy lived with her father till she was married; that Mary lived with her uncle most of the time from twelve or fourteen years of age till her marriage, and in answer to the tenth interrogatory says, that deponent became satisfied there was no will, and be delivered them to Joseph, Elijah and Thomas, each, the note that was payable to him on its face.” On cross-examination, this witness proved that for the last twenty-six years the family of the deceased consisted generally of his wife and part of his children; Joseph, Elijah, Thomas and Sophia were there most of that time; Nancy was also there till she married; Mary went, when she was twelve or fourteen years of age, to live with her uncle, and so went, as witness believes, with the approbation of her parents; Sophia lived with her father till his death. He also proved that the daughters labored in the family in household business, doing kitchen and house-work, and also on the farm, while they lived with their father; witness has seen them at work in the field dropping corn, stripping blades, and dropping beans and peas; that Joseph did not live in the house with his father part of the time for the last twenty-six years, but lived on an adjoining farm, which actually belonged to him, but from which his father had all the proceeds, and the control of, and owned the stock on it — so deceased told deponent; that the deceased also left a widow, who is still living. Doctor Hillary R. Pitts, a witness for the complainants, also proved the execution by Levin Carey of the obligations in question, and that deponent signed his name as a witness thereto, at the request of the said Levin; that Solomon Carey was present, and that Elijah Carey was also present, and remained there, as witness believes, all (be time of the transaction; he has no recollection of anyone else being present. In answer to the same interrogatories which were propounded to Solomon Carey, this witness says: “The papers were delivered to Solomon Carey, after their execution, by Levin Carey, who requested him to give them to his sons, in case he died without a will. I received a message from the said Levin Carey the day before the execution of these papers, to go the next day to sec him, that he liad some particular business for me to transact. I went the next day. After being there some timo, Mr. Levin Carey introduced the subject to me himself, and stated that he wanted to give his boys certain amounts, and proposed to do it by giving his notes, (I don’t recollect that lie mentioned the amounts at the time,) and asked me if I thought it would be good. I replied that I did not. know to the contrary. He then asked me to draw him a note. I drew him one, as a form, on unstamped paper, and handed it to him for ids examination. He read it, and approved of it, and handed it to his brother Solomon, who also read it, and approved of its form. Stamped paper was then furnished, and at the request of Levin Carey, I drew three notes on the stamped paper, and inserted the amount of $>12,000, as directed by Levin Carey, in each of the two in favor of Elijah and Joseph, and $)10,000 in that in favor of Thomas, and then handed them to Mr. Levin Carey, for his inspection. He read them, got up out of his bed, went, to the table where I wrote the notes, and signed them, and while signing each he made the remark, ‘1 acknowledge this to be my hand and seal, for the full intent and purpose therein mentioned.’ After lie had signed the notes, Mr. Solomon Carey and myself were called upon by him to witness them, which we did. Mr. Levin Carey then delivered all three of the notes to Solomon. Carey, with the request that he wanted him to take care of them, and deliver them to his sons, in case lie died without a will. Before, during, and after the preparation of these notes, Mr. Levin Carey stated to me that he was induced to give his sons these amounts because be thought they were entitled to them; that they had labored very hard for him through life; bad done a great deal for him, and that he could not die satisfied without giving .to them these amounts. He either stated that one or more of his sons were now between the ages of thirty and forty years, and that he had done very little for them, and that they had done a great deal for him. He stated a great deal of hardships they had gone through for him, but this deponent does not recollect what they were. After the deliveiy of the notes as aforesaid, this deponent asked the said Levin Carey, if he recovered, whether he intended to revoke these notes? deponent asked the question two or three times, to which the said Levin Carey made no reply.” It was admitted that at the time of the execution of these papers, as deposed to by the above witnesses, Levin Carey was sick, and that he died of the same sickness. The complainants also offered in evidence the administration account and proceedings in the Orphans Court, showing a balance of about $3000 of personal property in the hands of the administrator, due the estate, after paying debts other than these obligations, which balance said court ordered the administrator to retain, to meet the claims upon these obligations, and also that of. the administrator, Joseph Carey, for $12,000, all of which had been presented against the said personal estate, and the payment of which was resisted by some of the distributees and heirs at law of the deceased. A number of witnesses on both sides were then examined as to the quantity and value of the real estate of the deceased. From their evidence it appears that he owned about three thousand acres of land in Worcester county, lying in a body; that a comparatively small portion of it was cleared and cultivated, the residue being cedar, cypress and gum swamp. By averaging the testimony of all the witnesses as to their estimates of its value, it did not exceed $30,000. The defendants, Dennis and wife, and Davis and wife, filed exceptions to the bill, upon the ground that it contains no sufficient averment that Levin Carey died without leaving personal. estate sufficient to discharge the debts due by him. They also filed exceptions to the admissibility of all the items of evidence tending to show the amount and value of said personal estate. They also excepted to the admissibility of so much of the deposition of Solomon Carey as states “that after deponent became satisfied there was no will, he delivered them to Joseph, Elijah and Thomas, to each the note that was payable to him on its face.” [Note. — In the argument of the case in the Court of Appeals, this last exception was rested, upon tiie ground that there was no tenth interrogatory, to which this part of the deposition professes to respond, and no such interrogatory appears in the record.] The cause having been set down for final hearing, was argued, and the court below (Spjenoe, J.) overruled the defendants’ exceptions, and delivered the following opinion accompanying his decree dismissing the bill: “This cause has been fully and ably argued by the counsel ■on both sides. After an attentive examination of the authorities cited in argument, and others applicable to the case, and a careful consideration of the facts and circumstances disclosed by the testimony, the court is of the opinion that the instruments of writing filed with the complainants’ bill, and upon which the demands of the complainants against the estate of the deceased. Levin Carey, solely depend, were signed and sealed, and placed in the possession of Solomon Carey by the deceased, with a testamentary purpose, and were not intended by him to have any effect or operation whatever, until after his decease; that they did not create nor impose any obligation upon the deceased, nor pass any interest to the complainants during the lifetime of the deceased, being imperfect in execution as the deeds of the deceased, for want of a proper ■delivery; The bill of the complainants must, therefore, be dismissed.” From the decree accordingly passed dismissing the bill, the complainants appealed.