Opinion
04-10-1901
BOHLE et al. v. HASSELBROCK et al.
Chas. W. Parker, for complainants. Mr. Besson, for defendants.
Suit by John C. Bohle and others, complainants, against Diedrieh Hasselbrock and others. Decree for defendants.
Chas. W. Parker, for complainants.
Mr. Besson, for defendants.
STEVENS, V. C. Anton L. Bohle died in March, 1863. He left, him surviving, a widow, Anna, and four children, John, Anna, Anton, and Sophie. Sophie married August Schroeder, and in April, 1888, died, without leaving issue. Anton L. Bohle left a will, by which he appointed his wife executrix and guardian of his children. By its third paragraph he gave, in substance, the interest and income of his estate to his wife for life, with remainder to his four children. He provided that, if the Income should not be sufficient to support and educate his children, his wife might use so much of the principal as was necessary for that purpose. In August, 1864, the widow married Diedrieh Hasselbrock, and had issue by him. She died in 1898. On January 1, 1868, she purchased two lots of land in Hoboken. The complainants' claim is that she purchased them with moneys belonging to the estate of her first husband, and that they are therefore bound by a resulting trust, or, at least, affected with a charge in their favor. By the second paragraph of her will she gave these lots to her three surviving children by her first hus band, and so they take the fee in any event. If, however, the land is to be regarded as affected with a trust, Diedrieh Hasselbrock, The second husband, has no curtesy; If it is not, then he has. If the land is affected with a charge, then the curtesy is subject to: the charge. The children are in possession, and he has Instituted an ejectment to recover an estate by the curtesy. The present bill is tiled to restrain this legal proceeding. It appears that at the time of his death, in 1803. Anton L. Bohle had accounts in New York savings banks amounting, according to the calculation of complainants' counsel, to $7,780.73. What other estate he had, except a small grocery business, does not appear. The evidence shows, and it is admitted by defendants' counsel, that on January 2, 1868, the executrix drew from different savings banks various sums, deposited, some in herown name, some in her late husband's, and some in her childrens', amounting in the aggregate to $10,430.35. Of this amount it is agreed that $6,423 were trust funds. The controversy is over the difference. It is conceded by complainants' counsel, however, that there is no proof of the account ($1,497) in the Mechanics' & Traders' Bank, it having failed, and its books having been destroyed; and it is only claimed that of the balance ($2,510.35) $1,289.45 can be traced into the trust funds. The dispute is therefore narrowed down to these lastmentioned figures. I think the evidence fails to indicate with sufficient certainty that any of this sum of $1,289.45 was trust money. The proof is only this: It appears from the itemized accounts that on January 3, 1866, the executrix drew from the Seamans Bank $2,080; from a trust account, $518.75; and on January 6th, from the Bowery Bank, from an individual account, $518.75,—$3,117.50. On January 10th she made deposits in the East River Bank for her children to the amount of $2,000, and in the Metropolitan Bank, for herself, $650. There is not the slightest evidence, other than that afforded by the above figures and dates, that the deposit of $650 made in the Metropolitan Bank was part of the $3,117.50 thus drawn out. The court is asked to make the inference that it was, from the short interval which elapsed between the making of the drafts and the making of the deposits. But it appears that one of the drafts ($518.75) was upon an account that stood in the name of Anna herself, and it further appears that on January 15th of the same year-she drew from the Emigrant Bank $1,660, and about the same time (as counsel for complainants states in his brief) put on record a mortgage for $2,870.
In such a state of the proofs it is impossible to make the inference contended for. Her executrix's account, if she ever rendered one, is not in evidence. We do not know what the debts of the estate were, what her private means were, or whether she found it necessary to spend any of the principal for the education of her children. All we know is that on one day she drew out trust money, and on a subsequent day deposited money, presumably her own, because put into her individual account. The court cannot assume a breach of trust without proof, or make an inference of guilt when it is quite possible that the transaction might have been innocent. On July 19, 1867, Mrs. Hasselbrock drew from her late husband's account in the Metropolitan Savings Bank $530.45. She drew from an individual account in the same bank a similar amount, and on the same day she made a deposit of $1,310 in another individual account, also kept in that bank. The amounts drawn do not correspond with the greater amount deposited, and consequently there is nothing to indicate that the $530.45 taken from her late husband's account was parcel of the $1,310deposited in her own account, except they were drawn and deposited on the same day. Assumiug that they were, it does not follow that the transaction was necessarily a breach of trust. She might have been entitled to reimbursement for something paid out of her own funds, in the execution of her duty as executrix and trustee. She had a right in certain contingencies to spend principal. Twenty-four years have elapsed, and she is not here to explain what she did. Under these circumstances it is too much to say that it is clearly proven that the money was money of the estate. This fact, to use the words of Mr. Justice Depue in Cutler v. Tattle, 19 N. J. Eq. 560, must "be distinctly established by satisfactory evidence." The record title to land cannot otherwise be affected by parol testimony. The remaining item of $109 is open to the same objections. Of the price paid for the property ($14,700) my conclusion is that only $(3,423 are shown to have been trust moneys.
It now remains to be considered whether the complainants have an equitable estate in the property proportionate to the amount contributed, or whether they have a charge. The complainants contend they have an estate. In Cutler v. Tuttle, supra, it is said by Mr. Justice Depue that there is no doubt that payment of part of the purchase money will create a resulting trust to the extent of that payment, but that it will not arise upon payments made in common, when the consideration is set forth in the deed as moving solely from the grantee, unless satisfactory evidence is offered exhibiting the portion which was really the property of each, and establishing the fact that the payment was made for some specific part or distinct interest in the estate. Much on the same principle, if the only facts appearing be that the grantee has taken a deed to himself individually, and has used, in the purchase, both his own money and trust money, the court does not declare a resulting trust, but, says Mr. Perry in his work on Trusts (section 842), "usually gives a lien on the land only for the amount of the trust fund invested and interest." To the same effect are Lewis, Trusts, 897, and the following cases: Lewis v. Madocks, 17 Ves. 55; Price v. Blakemore, 6 Beav. 507; In re Pumfrey, 22 Ch. Div. 260; Humphreys v. Butler, 51 Ark. 354, 11 S. W. 479. The statement of Mr. Bispham (section SO), if he is to be understood as intimating that in cases like the present an estate, and not a charge, is given, is hardly borne out by the authorities. In one of the cases cited by him (Bitzer v. Bobo, 39 Minn. 18, 38 N. W. 609) a resulting trust was said to have arisen, but in the greater number only a lien was adjudged. Such was the decision In Wallace v. McCollough. 1 Rich. Eq. 420; Day v. Roth, 18 N. Y. 456; Warner v. Morse, 149 Mass. 400, 21 N. E. 960. If the court gives a lien in the present case, the intent of the testator will be effectuated. He directed that his money should be invested upon good bonds and mortgages of real estate. The charge will stand in place of the mortgage, and interest will run from Mrs. Hasselbrock's death. This conclusion will, however, necessitate amending the bill and making August Schroeder, the husband of the deceased daughter, a party.