Opinion
01-29-1903
VARICK v. HITT.
Isaac S. Taylor and James B. Vredenburgh, for complainant. Andrew Gilhooly and R. L. Lawrence, for defendant.
Bill by William W. Varick, administrator of the estate of Augusta A. Thompson, deceased, against Adrian Hitt, to determine the status of certain claims against the estate. Decree advised for complainant.
Isaac S. Taylor and James B. Vredenburgh, for complainant.
Andrew Gilhooly and R. L. Lawrence, for defendant.
STEVENSON, V. C. (orally). After the oral argument of this case, which occupied three days, I carefully examined and studied the voluminous briefs which counsel put in, and also went over the entire mass of testimony, some 2,000 pages, also examined the pleadings, and reached the conclusion which I mean now to announce; but at this date 1 may not be able to give a satisfactory, connected statement of all the reasons which underlie my conclusions. I shall only try, in a general way, to apprise counsel of the way in which I have dealt with this case as a whole, reserving for a written opinion the more detailed discussion of the testimony, in the event of an appeal being taken, which is to be expected in this case.
The bill, in its present form, was filed by Dr. Varick, as administrator with the will annexed of Augusta A. Thompson, deceased, and presents for investigation two entirely distinct matters. No objection has been taken, if any could be taken, to the trial and determination of these two distinct matters in one suit, and there is no embarrassment on the part of the court in dealing with them seriatim.
The first matter, in order of time, is this: Augusta A. Thompson was a' widow, who resided for many years in Jersey City. In the year 1885 she was about 55 or 58 years of age. She was living alone in her own house, and she owned other houses near by, which she let to tenants. She was in comfortable circumstances, having an ample support for herself, the extent of her income, as indicated, being about, as I recollect, $1,200 to $1,800 a year. She was a woman of pleasing address, youthful in appearance, in view of her age, a warm-blooded, perhaps somewhat impulsive, vigorous woman. She attended to her own affairs, and she seems to have been fully competent to take care of her own affairs. She had had two children by her deceased husband, who had died many years before, and I think the testimony indicates that she had lived for a number of years very much alone. Her relatives in 1885 consisted of a sister, I think two brothers, and quite a number of nephews and nieces. At this time the defendant, Adrian Hitt, appeared on the scene. He came from the West. His antecedents, his character, his various employments, will be referred to later on. He became acquainted with Mrs. Thompson in 1885, and from that time until November 7, 1887, he boarded at her house, or lived in her house at various intervals from time to time, but not continuously. He was a carpenter by trade at that time, and was endeavoring to maintain himself by running a carpenter shop, I think in a small way, in Jersey City. From November 7, 1887, until Mrs. Thompson's death on July 15, 1900, Mr. Hitt lived continuously in her house and boarded with her; that is to say, he lodged and had his meals with her. There was a brief period, in 1888 and 1889, I think, when he went back to the West, but he soon returned, and it seems quite plain that his going to the West was only a temporary interruption of this permanent residence that he had with Mrs. Thompson during these 13 or 14 years.
After Mrs. Thompson's death, Mr. Hitt made two claims against her estate in regard to the two matters on trial in this case. He produced what purports to be a promissory note, the body of which is in his handwriting, purporting to be signed by Mrs. Thompson, by which Mrs. Thompson promised to pay to his order, on demand, the sum of $32,000; and he claimed that this note represented an honest debt that was due to him. This note bears date September 5, 1899. The other claim which he made against the estate was a claim to the ownership of a promissory note given by one Thomson Kingsford to the order of Mrs. Thompson, bearing date, I think, September 9, 1899; and the note is for $10,000. It is made payable, I think, four or five years after date, but is payable, at the option of the maker, at any time. Mr. Hitt, after Mrs. Thompson's death, claimed that she gave him this $10,000 note as a gift. In the first of three successive answers which he filed in this cause, the second and third answers being brought about by exceptions filed to the prior answer in each case, Mr. Hitt states merely that Mrs. Thompson gave him this $10,000 note in her lifetime and failed to indorse it, not alleging that she gave it when she was in contemplation of death, as a gift causa mortis, leaving the inference that the gift was an ordinary gift inter vivos.
Without undertaking to recall or state the various proceedings that were had with reference to these two claims of Mr. Hitt, the final result was the filing of this bill on the part of the administrator, much in its present form, and with the last answer of the defendant in the form in which it now stands, presenting these two issues to the court: First, whether the note for $32,000 is a valid obligation of Mrs. Thompson's, or, in other words, whether any money is due to Mr. Hitt on that note; and, second, whether Mr. Hitt or the administrator is the lawful owner of the Thomson Kingsford note for $10,000. The answer at first objected to theJurisdiction of the court—set up that the matters in this litigation were cognizable in a court of law. Subsequently, during the progress of the trial, the defendant moved to amend his answer by striking out this separate defense, which, as I recall it, was pleaded in the usual way, the defendant asking that he might have the same benefit of this defense as if he had presented it by a demurrer. Counsel for the defendant made this motion, and announced to this court that it was the desire of the defendant to have all the matters finally and conclusively determined in this cause. I shall not, therefore, spend much time in dealing with the question of the jurisdiction of the court in respect of either of these two controversies, although some questions might have been discussed, if the answer had stood in its original form, in regard to the jurisdiction of the court in reference to the $32,000 note.
As to the controversy over the Thomson Kingsford note of $10,000, there could be no question about the jurisdiction of the court. It was not only claimed to be a gift causa mortis by the defendant, but, if objection might be made to the filing of a bill to determine a controversy over a gift or an alleged gift causa mortis by the administrator, all doubt about the jurisdiction of the court was removed, as I have heretofore explained, when, by consent of both parties to the suit— and all parties to the suit as it then stood— the executor of Thomson Kingsford came Into court in the cause, by a petition, and took an order, by consent of all parties, to the effect that lie should deposit the full amount of the note in court, and take the note. This was done. The proceeding was practically an interpleader proceeding, and the order that was made was, in effect, a decree of interpleader. The remaining parties in the cause (because the bill, by consent, was dismissed as to the estate of Thomson Kingsford), the complainant and the defendant Hitt, by their pleadings have set up amply their contentions in regard to this note and the money which it represented. The jurisdiction of the court, therefore, to try the ownership of the note, is beyond all doubt. The fund is in court. Nobody can get this fund without the order or decree of this court; and therefore, for that reason, there can be no question as to the court's jurisdiction.
In regard to the note for $32,000, the case is different. The bill prays that the note be surrendered for cancellation. It may be that some of the main questions with regard to that note can properly and completely be tried in an action at law, and might have been tried in the action brought by Mr. Hitt against the estate on the note, which was enjoined, if I remember right, when this bill was filed. Was it not enjoined, Mr. Taylor?
Mr. Taylor: Yes, sir.
THE COURT: It may be that the principal questions might be tried in such a suit. But, as a matter of fact, there are a number of very important issues in regard to that note, in reference to its status, which involve necessarily a question of fraud. If the note is not a valid note, then it is a gross fraud, and the conduct of Mr. Hitt in undertaking to collect it is dishonest and fraudulent in a high degree. I think there are very many circumstances about this case which would probably sustain the jurisdiction of the court, and justify the court in trying the whole question—all the questions relating to that note—whether it is a forgery or not, whether there was any consideration for it, whether it was obtained by undue influence, and all the other controversies which have been litigated in this cause. But I shall not deal with the matter. I have not undertaken to examine the authorities which have been cited. I shall respect the wishes of the parties. I shall exercise the jurisdiction which both parties in this cause admit the court has in regard to this $32,000 note, and, if there is any error made in assuming such jurisdiction, the matter can be examined in the court above.
Now then, taking up these two questions of fact in order, the first matter to be determined is the status of the $32,000 note. That comes first in point of time, and the discussion of it comes first logically. I cannot see how any court could satisfactorily deal with the status of the alleged gift causa mortis without first establishing the honesty or the fraudulent character of this $32,000 note. It makes a great deal of difference, in endeavoring to ascertain whether Mrs. Thompson gave Mr. Hitt this $10,000 note, which was just as good as a government bond, whether the court believes that Mrs. Thompson at tin-time owed Mr. Hitt $32,000, which was more money than could be realized from her entire estate probably, including the $10,000 note. It seems to me that the determination of the status of this note necessarily precedes the consideration, the proper consideration, of the status of the alleged gift causa mortis.
I may say here that whether either one of these claims of Mr. Hitt's is an honest, just claim, is to my mind a much more difficult question than whether or not both of them are honest and just or not. It is very much easier to believe that either one of these claims is well founded than it is to suppose that both of them are. The note which is produced as the foundation of this Claim for $32,000, as I said, is in the handwriting of Mr. Hitt. He claims that on September 5, 1899, Mrs. Thompson owed him $32,000. Of course, if she did not owe him $32,000, or any substantial sum at that time, then the note is of no value. The force of this piece of paper alleged to be signed by Mrs. Thompson lies altogether in the evidence which it affords that Mrs. Thompson owed Mr. Hitt $32,000 on September 5, 1899. It is true that Mr. Hitt produces a witness, one George M. Culver, whotestifies that he was present on September 5, 1899, and saw this note written out by Mr. Hitt, and saw Mrs. Thompson sign it, and that after it was thus executed he, the witness Culver, read it. He testifies to that. If his testimony is true it does not necessarily follow that Mrs. Thompson owed Mr. Hitt $32,000 at that time. There are a great many ways, a number of which are strongly suggested by the testimony in this cause in regard to the relationship of these two parties—their relations to each other—I say that there are a great many ways that can be suggested in which the note might have been executed without there being an indebtedness of $32,000 at the time. I have read and re-read Mr. Culver's testimony, both on his direct and on his cross examination, with great care, to see how far he narrates any facts which indicate the existence of an indebtedness, as distinguished from the mere execution of this note. There is very little in Mr. Culver's testimony on that subject. His testimony leaves upon the mind very largely this impression: that he went to Mrs. Thompson's house, and waited until Mr. Hitt appeared, being, as he says, Invited there by Mrs. Thompson; a prior note for $30,000, similar to the one in question, was then produced; a new note for $32,000 was made as its successor and substitute; the note was executed; it was handed to the witness to peruse; he evidently understood that he was there as a witness to a very important transaction; Mr. Hitt took possession of the note; the witness went away. And one very singular thing to my mind is that almost the same transaction is described by the witness as having occurred in his presence three years before, in 1896," when the prior note for $30,000 is alleged to have been made. The witness comes in, watches this ceremony, the witness goes away. What it means he knows very little about, and he tells us very little.
I do not lose sight of the conversation which Mr. Culver would have us believe took place between himself and Mrs. Thompson on one of these occasions, when Mrs. Thompson, as the witness said, with tears in her eyes, spoke of Mr. Hitt's generosity to her, and even stated that all her property would be barely sufficient to pay what was owing to Mr. Hitt. I must say that I do not believe that Mrs. Thompson ever said anything of that kind to Mr. Culver.
Now we have the note for $32,000 speaking for itself, and proved to have been executed and delivered to Mr. Hitt, by this one witness, who swears point-blank to the fact. But still, the underlying question is, did Mrs. Thompson owe Mr. Hitt $32,000 at the time this note was made? I reach the conclusion, without doubt in my own mind, that Mrs. Thompson did not owe Mr. Hitt $32,000, or any substantial sum, and that, if she executed this note in the presence of Mr. Culver and delivered it to Mr. Hitt, there is some explanation of the fact that we have not received in this case, and probably never will receive, inasmuch as the one person who could tell the truth, if I am correct in my conclusion, is silent in death. The improbability of this indebtedness of $32,000 existing from Sirs. Thompson to Mr. Hitt is so great that it would have to be removed by testimony which would almost amount to a demonstration of the existence of the debt.
I said that Mr. Hitt came from the West In 1885, and he, within two years after, attached himself to Mrs. Thompson, and lived with her during the balance of her life. Now it has seemed to me from the very opening of this cause, in which there is such a vast amount of testimony and so much contradiction, that it is idle to undertake to grope one's way through the maze of this testimony without ascertaining what, in fact, were the relations existing between Mrs. Thompson and Air. Hitt. That is a subject that cannot be passed by and left in any uncertainty. Mr. Hitt claims that after he had, at various intervals, had his lodging and board at Mrs Thompson's house, he established himself permanently there in November, 1887. He claims that he and Mrs. Thompson at that time became united in relations which he describes as a common-law marriage. In other words, the relations of this man and woman became intimate on November 7, 1887, and they lived together practically as man and wife from that time on until her death. That is Mr. Hitt's claim. I am strongly inclined to believe that this claim is well-founded. I may say I reach that conclusion. Certainly, if there is any error in that conclusion, Mr. Hitt cannot complain of it. I find, in accordance with his insistment, that this man and this woman did live together in Intimate relations during this long period of time, and I think the whole testimony on both sides of this cause is consistent with that theory, and is not consistent with any other. Why, of course, they misrepresented about it. Mrs. Thompson had to explain to her relatives and friends why it was that she had this man Hitt, this carpenter, living in her house. He was not, plainly, a man who was exactly Mrs. Thompson's social equal. Mrs. Thompson had a number of friends who were people of wealth and refinement, who took an interest in her. She might very well hesitate to contract marriage with this man, who had come strolling to her door from the West—a man whose antecedents she knew nothing of. But she had to account for his presence in her house. And how did she account for it when her friends inquired? Why, in the most natural way possible. She said that she paid Mr. Hitt for all that he did for her; that she had been frightened by a burglar who had in 1887 or thereabouts endeavored to break Into her neighbor's house, and she didn't like to live alone. And there might have been some truth in that; and Mr. Hitt was a veryuseful man. Mr. Hitt stated to various persons that he paid his board, and that he got $3 a day for every day that he worked for Mrs. Thompson. And I think the testimony indicates that both Mr. Hitt and Mrs. Thompson naturally exaggerated the usefulness of Mr. Hitt to Mrs. Thompson in respect to the care of her property. Mrs. Thompson did not need a mechanic to live with her for the purpose of taking care of her houses and making repairs. She took care of her own houses, for the most part— the business connected with them; collected her own rents; and she was abundantly able to do so. Occasionally Mr. Hitt would mend a door, or do something of that kind around the house. But I am very strongly impressed with the idea that in the large number of conversations that are testified to between Mrs. Thompson and various parties, including her relatives, and between Mr. Hitt and various other parties, what was said was in a measure untrue—contained an element of misrepresentation which one would naturally expect to find in such a case. Mrs. Thompson had difficulty in vindicating her right before her relatives to keep this man in her house. She addressed Mr. Hitt always in their presence as "Mr. Hitt." I think that almost all the witnesses were questioned on this point. The sister, Mrs. Langwith, and Mrs. McCarty, a friend, each of whom spent very many months in Mrs. Thompson's house while Mr. Hitt was there, say that Mrs. Thompson always called him "Mr. Hitt," and Mr. Hitt always addressed her as "Mrs. Thompson"; and these witnesses also say that there were no familiarities indulged— allowed—between them. Their demeanor toward each other was such as to indicate that their relations might have been ordinary business relations, and that Mr. Hitt was in Mrs. Thompson's house in the capacity of a workman, or an employe, if not a servant. A good deal of testimony was given by Mrs. Thompson's relatives to the effect that they regarded Mr. Hitt, and subsequently his niece Clara Longquist, as being in the house in the capacity of a servant. It was quite natural that they should have that impression, and that was the impression that naturally Mrs. Thompson would seek to make upon them. But when, as they did occasionally, break out with the question direct to Mrs. Thompson in what capacity this man Hitt was there, the testimony shows that on several occasions Mrs. Thompson's replies were very unsatisfactory.
Now, while these people were living together and conducting themselves in the way I have indicated, so as to make it possible for them to live together without scandal, we find abundant proof that they took a very different interest in each other from that which such an employer would take in such an employe. The most significant and trustworthy piece of evidence of that character that I recall consists of two letters written by Mrs. Thompson to Mr. Hitt in June, 1900, when he was temporarily in the Adirondacks. They are very affectionate letters. They indicate a very high degree of personal regard. They do not begin "Dear Mr. Hitt"; they begin "Dear Adrian"; and they end with expressions of love. They are such letters as a woman would write to her husband. They are such letters as this woman, Mrs. Thompson, might well have written to Mr. Hitt if she entertained a deep affection for him, if their relations were sentimental. They are not such letters as Mrs. Thompson would write to a carpenter who was simply in her employ as a servant, whom she found it convenient to keep in her house as a guard against burglars.
I cannot recall, much less state in an orderly manner, all the testimony which bears upon the solution of the question of the actual relations of these two people. The inference from the whole, I think, is plain that this man and woman had an interest in each other which they were concealing from the world, and especially from the relatives and friends of the woman. When Mrs. Thompson was prostrated by her last illness, and her niece, Mrs. Beulah Wilson, an intelligent, well-educated Indy, took charge of the house, the conduct of Mr. Hitt was such as to lead Mrs. Wilson to ask her aunt if she were married to him, because she says that she was anxious to know what the fact was, and in asking this question she does not seem to have feared the resentment of her aunt, nor does she seem to have incurred such resentment. Without pursuing this subject further, I may say that I think the testimony abundantly sustains Mr. Hitt's contention as to what his relations with Mrs. Thompson in fact were.
Mr. Hitt testifies that from the time these relations were established, November 7, 1887, for 13 years, until Mrs. Thompson's death, he was engaged in the business of making and exploiting inventions. As soon as he went to live with Mrs. Thompson, as soon as these intimate relations were established, according to his own testimony, he abandoned all effort to maintain a carpenter shop, and practically all regular efforts to make any money by the prosecution of his trade. Down to that time he had maintained a carpenter shop in Jersey City. From this time onward he ceased to endeavor to earn money in that way and he devoted himself to the exploiting of these inventions. He interested various parties with money in these inventions. There is a series of partnerships and corporations in which Mr. Hitt was interested; and for short periods the testimony shows that he received a daily wage of $3, or something like that, the periods of such employment, however, being comparatively brief. There is no evidence that Mr. Hitt was making any substantial amounts of money by any business that he maintained from 1887 down to 1900, with the exception of thispatent business, to which I am about to refer. Well, he had to live during that period; he had to be lodged, and fed, and clothed. He also was making inventions and procuring patents, for which he required considerable sums of money. He sold these patents, or different interests in them, and from time to time—it is proved beyond all doubt—he received moneys, sometimes considerable sums, and the evidence indicates that he turned these moneys over to Mrs. Thompson. One of his partners, Mr. Cobin, says that Mrs. Thompson practically was his banker; that Mr. Hitt never had any money, that he always went to her for money, got what he required, and all moneys that he made went to her.
Now, it would be an impossibility to deal with the mass of testimony in regard to the various sums of money which Mr. Hitt alleges he received from 1885 until 1900, and all of which he would have us infer were turned over to Mrs. Thompson for his benefit. The testimony, I will say, that Mr. Hitt adduces to show that he received any considerable sums of money during this period, or any such sum as $32,000, is entirely unsatisfactory to my mind. He starts out by claiming that in 1885 he walked to California on a wager with a man who is unknown in this cause, who is not traced, named Joseph Smith, and that he won the wager of $2,000; and then he made another wager with the same man, Smith, that he could walk back within a certain time, and he walked back and made $6,000; and he would have us believe that by the summer of 1885 he had collected about $8,000 in cash as the proceeds of this extraordinary double walk. A part of this money he received in cash at the Astor House in New York, alone. Nobody saw him receive it. Nobody knows anything about his reception of this money who is brought to testify in this cause. This court is asked to believe that he had $8,000 in cash in 1885, when he was endeavoring to establish himself in a petty business as a carpenter and inventor and builder here in Jersey City. It did not go into any bank that we know of. He asks us to believe—and he alleges this in his answer—he alleges in his answer that within six months after he received this sum of money he turned it over to Mrs. Thompson. That means that by the winter of 1885-86—about that time—he gave this woman $8,000; a woman with whom he was not living, with whom his relations were not intimate, for whom he was occasionally doing jobs of work, and at whose house he was occasionally staying for a time. That is what he would have us believe. It is unfortunate for Mr. Hitt that he can bring no one who knows anything about this money at all. Its origin is in a wager. It is an extraordinary way to make so much money. It would be very extraordinary if a man like this could make that much money and nobody know anything about it. I have to reject his story as too Improbable to accept without strong corroborating testimony.
It appears in the case that Mr. Hitt himself made various statements in regard to this walk, to various witnesses, which are inconsistent with his present claim. One witness, whose credibility does not seem to be attacked in any way, says that Mr. Hitt told him that he made the wager, not with a man named Smith, but with a man named Richard Fox, and that it was for $5,000. The same witness, or another—I have forgotten which—testified that Mr. Hitt told him that he had made this walk (and I believe it is conceded that be did walk to California) on a wager, and that what he made by the walk out he lost by failure to complete the walk back within the time limited. He stated also, according to one witness, that he had been "beat" out of the money. So that we have the origin of this $8,000 left in a state of great doubt and obscurity. On the other hand, it is a very curious thing that Mrs. Thompson could have received $S,000 in cash from this man in the winter of 1885-86, and no trace be left of it. No bank got it from her. She then, if I recall the situation correctly, was dependent very largely for banking facilities and the care of her money upon friends in New York, with whom she was in constant correspondence, and from whom she was receiving dividends on stock, from intimate financial friends who took great interest in her. It seems incredible that Mrs. Thompson could have disposed of $8,000 at that time and no one know anything at all about it.
The other items of money that Mr. Hitt claims he received from 1885 to 1900 are to a very large extent very imperfectly proved. The testimony in regard to them is very unsatisfactory. There are a number of instances where Mr. Hitt alleges that he received money, and had money, but he does not produce the men who paid the money—the persons who would know about it—although an examination of the testimony makes it highly probable that some person could be produced who would corroborate him. No such corroboration is offered. I think I may state with safety that, with the exception of some moneys that were received for the sale of these patents, or machinery connected with the business that Hitt carried on— with the exception of some of those moneys, which are traced to Mrs. Thompson—there is no proof, except from Hitt himself, that he ever received the sums of money which he claims to have received, and no proof of any kind that Mrs. Thompson ever received such sums from him.
Now, let us see what the probabilities would be in regard to any moneys realized by Hitt out of this patent business from 1887. It is not disputed that a building or shop of some kind was erected upon one of Mrs. Thompson's lots, opposite her residence, where Mr. Hitt installed himself, and wherehe worked constantly and industriously at these various inventions that he was endeavoring to make. He interested a man named Cobin in those patents. Cobin was associated with him for some time. He afterwards interested Mr. Plenty and Mr. Berg; and then again, at another time, he interested the Simons, wealthy merchants of New York. All these people dealt with Mr. Hitt as a poor man. Mr. Cobin evidently became quite intimate with Mr. Hitt. He comes here and testifies at length in his behalf. Mr. Cobin started in by paying $1,500 for an interest in one of Mr. Hitt's patents, and then they undertook to manufacture the patented article. Mr. Cobin says, in substance, that he was to supply the money, and Mr. Hitt was to do the work. Mr. Cobin never found out that Mr. Hitt had any money. He regarded him as a poor man. Mr. Hitt, in dealing with Mr. Cobin, the Messrs. Plenty and Berg, and the others, occupied the position of the struggling inventor who has a patent that is valuable, and who wants the capitalist to come in and take a share in the patent as compensation for the amount necessary to put the patented article in the market. And yet, if we believe Mr. Hitt's story, while he was dealing with these men on the basis of his being a poor man, having no money, and their having a good deal, Mrs. Thompson was holding for him $15,000, $20,000, $25,000, in cash. He was a comparatively well to do man. Mrs. Thompson owed him more than could be realized from her estate at a forced sale. And yet nobody suspected it —nobody found it out.
In 1896 a judgment was recovered against Mr. Hitt in the district court, for about $200 I think, and a shert time before or after— about that same time another judgment was recovered. Nobody could collect anything out of Mr. Hitt. And in 1896, when a levy under one of these judgments was made upon the machinery in Hitt's place, Mr. Hitt delivered to the constable a claim, signed by Mrs. Thompson or in her name, claiming that she owned all the machinery that was subject to levy. Yet we are asked to believe by Mr. Hitt that at that time he was a comparatively rich man.
Now, if Mr. Hitt had amassed all this money, largely by his inventions, it is not probable that he would have been willing to give up large interests in his valuable patents to these persons who only contributed a small sum of money—the small amount of capital necessary—to conduct the business successfully. That is not the way inventors do. Let an inventor get $10,000 out of a patent, and he has almost always four or five other patents in mind that are a great deal better Mr. Hitt would almost inevitably have made some exhibition in his business transactions of the possession of this money, if he had any such sum of money. It is incredible to my mind that this money would have flowed secretly, through secret channels, from him to this woman, Mrs. Thompson, and that he should have taken from her, as he claims he did, simply her promissory notes. It would require an enormous amount of testimony to overcome the intrinsic improbabilities of the story that this man tells.
Now, he says in his answer that from 1887 down to 1900, 13 years, he (Hitt) ran the house—paid the expenses of running Mrs. Thompson's house; and also that he carried on during that period a business for them both, but in her name. That is the statement made in the first answer, which I believe was eliminated from the subsequent answers?
Mr. Taylor: I think it was, sir.
THE COURT. I think it was eliminated. The first answer was, unnecessarily, sworn to, was it not?
Mr. Taylor: Yes, sir.
THE COURT. That is what Mr. Hitt meant to be a sworn statement—that he ran this establishment, paid all the expenses, but was carrying on the business in Mrs. Thompson's name, and for their joint benefit. That is the purport of it. He makes out a case of partnership, in the whole of this business carried on in relation to these patents, from 1887 down to 1900. I am inclined to think that there is a good deal of truth in Mr. Hitt's statement that this was in some respects a partnership business. It is not true that Mr. Hitt paid the expenses of the house. That statement is not only not proved on his part— and he might have brought a great deal of proof if it were true—but the contrary is proved. It is proved that Mrs. Thompson paid the expenses, and there is no evidence of any kind whatever, as I recollect the whole mass of this testimony, that Mr. Hitt ever paid Mrs. Thompson one dollar for his board.
Now we have, according to Mr. Hitt's own insistment, a man and woman living together in illicit relations, occupying the same house, but concealing those relations, and each one naturally representing to the onlooking world that their relations were innocent—were founded in the business interests of the two. Mr. Hitt states that he was carrying on this business all this time in Mrs. Thompson's name as a partnership business, and he has repeated that statement, or similar statements, a number of times, as has been proved. I am inclined to think that there is a good deal Of truth in that. Once let it be granted that Mrs. Thompson was ensnared into a relation with this man such as I have indicated, and all the rest very naturally follows. He would live with her practically as her husband. He would get all the benefit of the household that she maintained—be boarded and lodged. It is proved that she bought him clothing—I think underclothing: and he, full of ideas, some of which werepractical perhaps, and some of which we know were visionary, was carrying on the shop of a patentee and inventor, across the street, working day and night, and selling these patents and interesting various people in them. Why, the money manifestly came from Mrs. Thompson, just as Mr. Cobin's testimony indicates; she was the banker, and any moneys that he got would naturally go to her. I have not the slightest doubt when he got $1,000 or $1,500, as he did on one or perhaps several occasions, by check, it would go to Mrs. Thompson.
But how about Mrs. Thompson's side of the account? We haven't that here at all. Mr. Hitt lived with Mrs. Thompson for 13 years, as I have said—boarded and lodged with her. It is proved that he received sums of money from time to time in order that he might get out patents, and received moneys from her for the purchase of machinery. The mere fact that on one, two, three, or more occasions, sums of money that Mr. Hitt received, amounting to $500 or $1,500, or whatever, were immediately turned over to Mrs. Thompson, is only the natural result of the state of affairs that existed, of the relations that bound these people together. I should consider it very strange indeed if Mr. Hitt, receiving all that he plainly did receive from Mrs. Thompson, sustained by her financially in so many of his transactions, should have pocketed the money that was occasionally realized when he succeeded in interesting some unfortunate victim in one of his unsuccessful patents. And that leads me to speak for a moment of this very curious and significant fact: That while Mr. Hitt made a large number of inventions, which he has described, while his counsel produced a great many patents, or certified copies from the Patent Office, of patents issued to him, nobody has mentioned a single patent which Mr. Hitt made from which anybody has made any money by manufacturing and selling the patented article. The sole source of revenue to Mr. Hitt as a patentee, which is proved in this case, from all these 13 years of persistent, industrious effort on his part—the only source of revenue to him in his business—has been the sale of a patent or an interest in some of his patents to some third party. Mr. Cobin came over here from New York, bought an interest in one of the patents—and I think it was the hand car patent—for $1,500, and supplied what money he could, and left, I think, not very long afterwards, perhaps within a year or two, with a loss of capital and a gain of experience. The other gentlemen who were induced to go in with him met with precisely the same fate. All the money that Mr. Hitt ever got, as proved in this case, on account of his patents, was by their sale, and not by the manufacture and sale of any article that was covered by his patent.
It is incredible to me that such a man as Mr. Hitt could, in September, 1809, as the result of 13 years of the sort of business which he says he carried on, have succeeded in secretly lending to Mrs. Thompson $32,000 of money, while all the time he was in some way clothed, lodged, fed, supplied with money—supplied with the amount of capital which he may have expended, or in fact did expend, during that period. And it is almost equally incredible, I may say it is highly improbable, that Mrs. Thompson, during the same period, could have secretly disposed of $32,000 through channels that we cannot discover—in a way that is not disclosed in this case. Why, it would be a most extraordinary and mysterious exchange of situations between these two people. We have, in 1887. Mrs. Thompson with a nice little estate of probably $30,000 or $35,000, with no extravagant habits, an exceedingly careful woman according to the undisputed testimony, and with an income of perhaps $1,500 or $1,800. a nice substantial income, upon which she could live, and manifestly did live in the way in which she was pleased to live, without any impairment of her principal.
Mr. Hitt we have, a stranger from the West; a stroller; a convicted counterfeiter, by the way; a man who had been walking on a wager to San Francisco the year before, with plainly no more than the proceeds of the walk, if there were such, in his pocket, and with some other very uncertain items of property which he undertakes to describe to us as existing out in the West. We have this man embarking in this sort of patent business, which is notoriously uncertain, in which he never gets a single patent which is proved to have been valuable as a source of revenue to anybody who undertook to manufacture the patented article. He goes on in this speculative, inventive business for 13 years, and all the moneys that he gets, apart from the $8,000 that he is said to have got from his wager, amount to a few thousand dollars—not very many—which he received from the sale of these patents, as I have said. And now, at the end of the 13 years, the situation of these two parties is just about reversed. The fortune that Mrs. Thompson had has disappeared, nobody knows where, and Mr. Hitt has become possessed of just about the same fortune—$32,000—from sources which certainly had been concealed from all the persons he was associating with, and with whom he was doing business, and who were deeply interested in his financial resources. I am unable to take $32,000, practically the entire fortune of Mrs. Thompson, and give it to Mr. Hitt, in affirmation of this claim of his, merely because he brings a piece of paper, in his own handwriting, a promissory note, the body of which was written by him, and because Mr. George M. Culver testifies that he saw the ceremony of the signing and delivery of this note. There is something very strange about Mr. Culver's being brought in as the Importantwitness in this case. It is perfectly evident that there would be nothing on which this claim of Mr. Hitt could rest at all to this note of $32,000 if Mr. Culver's testimony be eliminated. The whole case of Mr. Hitt's rests on this piece of paper which bears on its face the signature of Mrs. Thompson, and the testimony of Mr. Culver. All the improbabilities to which I have referred—all the statements which seem to me to be almost incredible which I have discussed—all these things are to be set aside because of the probative force of this piece of paper alone, supported by the testimony of Mr. George M. Culver. Mr. Culver is an old companion of Mr. Hitt. He has known him for 20 years. He knew him out West before he ever came to Jersey City. He came to New York in 1884, I think it was, in company with Mr. Hitt, and they then and there established a sort of corporation, in which they were officers, and which they called the American Investment Company, I think it was, and they went into the business, or tried to go into the business, of exploiting patents. The concern lasted only a few months, during which Mr. Hitt and Mr. Culver were roommates, living together in New York, as well as being connected in this business. Then they turn up in Jersey City together. Mr. Culver has a deep interest in this walk to California; goes part of the way in order to see how his friend is coming out. After Mr. Hitt's return from his walk he boarded free at Mr. Culver's house for a time. Mr. Culver is a man who has lived in a large number of houses in Jersey City. He has moved some him or 20 times, perhaps more; very often neglecting to pay his rent, according to his own admissions. For eight or nine years he has had a position at Ellis Island in connection with the immigration office there. He has had a position there which seems to be similar to that of a watchman or police officer—perhaps combines both functions. It is a subordinate position. That his relations with Mr. Hitt have been intimate and friendly is perfectly plain. If Mr. Hitt were going to pick out some one in Jersey City to be a witness for him, I flunk it is fair to say that it would seem that Mr. Culver would be or might be the very sort of man whom he would select. Now there is something very strange to my mind in Mr. Culver being the witness here. He says that he saw the $30,000 note made in 1800; that he witnessed it at Mrs. Thompson's request; that in 1809, in September, he was passing her house, and Mrs. Thompson requested him to call. He said he would do so, but he did not do so for two or three days; and then, as he and Mr. Hitt would both have us believe, without Mr. Hitt's knowing anything about it, he called in the afternoon at Mrs. Thompson's house, and then, when Mr. Hitt came In, he witnessed the note. Mrs. Thompson then picked this man out, waited three or four days, recognizing the importance of this note that she was giving, and the propriety of having a witness who could be relied on to prove it in the event of her death. She selects this man Culver, who is the intimate friend and companion and former business associate of the payee of the note, on whose behalf the note is to be proved, and she waits three or four days for this man to come, and he is the witness whom she chooses for the protection of Mr. Hitt. It is unreasonable, I think, to suppose that Mrs. Thompson would have made such a selection. It is easier to my mind to believe that, if the note was signed, the witness Culver was brought to the place where it was signed by Mr. Hitt, and that there were circumstances attending the signing and delivery of that note, which, if disclosed, would account for the signing of it, if in fact it was signed—if there was any such note signed by Mrs. Thompson. Only a short time before the note for $30,000, made in 1890, is said to have been signed, Mr. Hitt had procured this man Culver to come as tenant and occupy a house of Mrs. Thompson, adjoining hers, for the purpose of keeping a boarding house. He was put out, or he left, and Mrs. Thompson recovered a judgment against him for almost an entire year's rent. Mr. Culver was not the sort of a man that Mrs. Thompson would naturally bring into her affairs. One witness testified that Mrs. Thompson expressed herself in very uncomplimentary terms in regard to Mr. Culver. But it is hard to believe that after this man Culver had left Mrs. Thompson's house, and deprived her of nearly a year's rent, three years later, the judgment for the rent being unpaid, Mrs. Thompson would have brought this man to her house to be the solemn, credible witness of this important transaction, for the protection of Mr. Hitt. Mrs. Thompson was, according to the testimony of many witnesses, an intelligent, level-headed, business woman. If she wanted to have a witness who could protect Mr. Hitt, she hardly would have picked out this man. There were other witnesses, many near at hand, who more naturally would have been brought in, and who, within the plain view of Mrs. Thompson, would have been safer witnesses to employ than Mr. Culver.
In regard to the attempt on the part of the complainant to prove by the time-books. or copies of the time-books, kept at Ellis Island, that Mr. Culver was on Ellis Island, and could not have been in Jersey City, when this note was executed, I have had no opportunity to re-examine the question of the competency of the testimony which was offered on that subject. I retain the tentative conclusion which I reached at the end of the argument of the question, to the effect that the testimony which was offered is incompetent and must be disregarded.do not think that this is a matter of great importance, because it does not strike me that the testimony, if competent, is entitled to very great weight Mr. Culver, as I recall his testimony, stated that as the time-books had formerly been kept before recent reforms were instituted, absentees were uniformly marked as present. No witness was brought to contradict this testimony.
I do not think it is necessary in this case to determine whether the note for $32,000 is a forgery or not. Two experts swear it is a forgery; two experts of high degree— Messrs. Kinsley and Carvalho. Two experts of equally high degree—Messrs. Ames and Hay—swear that the note is genuine. And we have had some five or more hundred pages of testimony of these learned experts, sustaining their respective theories. I do not intend to waste any time in the discussion of that testimony, or in an attempt to make a determination as to the genuineness of this signature. The testimony of these experts on this signature shows that it may be genuine, or that it may be a forgery. Perhaps it would be more accurate to say the testimony of Messrs. Kinsley and Carvalho was to the effect that the signature is a forgery. The testimony of Mr. Ames and Mr. Hay, I think I may say, is to the effect that the signature may be genuine, or may be a forgery. These gentlemen admit that a forgery—an imitated signature —may be so well done that all their art is vain to establish the fact of forgery. It is a mistaken notion that many people have that a signature cannot be forged successfully. There are numberless instances where signatures are copied with such accuracy that it is impossible to demonstrate whether they are genuine or whether they are forgeries.
Now, then, Mr. Hitt is not only a convicted counterfeiter, or convicted of having counterfeit coin in his possession, he is an inventor, an engraver, and he is a very ingenious man. There is no question about that whatever. There is a great deal about his history, his character, and his peculiar abilities, to justify the suspicion that he might be a very successful simulator of handwriting. But I am not going to undertake to determine the question whether this signature is a genuine one, or whether it is a forgery. It is enough to reach the conclusion that the note does not represent a valid indebtedness of $32,000, or any substantial indebtedness, from Mrs. Thompson to Mr. Hitt. It may not have been forged. It may be that Mr. Hitt, using his persuasive arts, bringing whatever forces of persuasion or constraint he could upon Mrs. Thompson, induced her to sign this note. He may have given her a note, for all we know, for the same amount, or for double the amount. There may have been a variety of circumstances under which this note might have been made, which would, however, take it altogether out of the category of obligations. And right in connection with that matter it is worth while to note the fact that plainly this was not a business transaction. The relations of these people, according to Mr. Hitt's own story, were peculiar, and such as I have described. Mrs. Thompson was spending large sums of money on Mr. Hitt, and no account was stated between them when this note was made—none whatever. How does it happen to be just $32,000, even? How did it happen that in 1892 (it may have been 1893 or 1894) Mr. Hitt surrendered all the notes that he alleges he received when the separate advances were made, and took a note for just $24,000—the first note that this man Culver says he saw—just $24,000? Was that a business transaction? Well, it might be. It might be that they settled up their affairs, and, being very intimate and friendly, they might have thrown off the interest, and made it a round sum, $24,000, and that note therefore was made in that form. But how comes it that in 1896, three or four years later, they met, and the $24,000 note is destroyed, and a new note given for $30,000? That is Mr. Culver's story. That Is Mr. Hitt's Insistment. Is that a business transaction? Does that represent an indebtedness? And then we have the curious fact that three years later, during which interval I believe Mr. Hitt claims that he advanced Mrs. Thompson some $1,500, they meet, and this same ceremony is gone through with, performed again, in the presence of Mr. Culver—the $30,000 note is surrendered, and a note is given for $32,000. How did they reach that figure, $32,000? The defendant makes no explanation. The interest alone on the $30,000 note for the three years would be $5,400. And if I am right in my recollection that Mr. Hitt claims he advanced $1,500 during that interval, as I think is the case, it is evident that the new note, instead of being for $32,000, ought to have been for $37,000 or more. Was that a business transaction? Was that such a transaction as these two people, living as man and wife, with their intimate personal relations and with their complex financial relations, would have been liable to make—just the round sum of $32,000, apparently with no receipts given, no statement of account? There is a great deal to suggest that, if Mr. Culver was present and saw this thing done, it was not a business transaction; that it was understood by the parties that a note was given for a purpose—some purpose which we may surmise, but about which we have no proof whatever.
The conduct of Mr. Hitt after the death of Mrs. Thompson affords practically a conclusive test of the truthfulness of his claim that she died indebted to him in the sum of $32,000—a sum greater than her entire estate, if liquidated in the ordinary way, would probably yield. In applying this test, the declarations and actions of Mr. Hitt, which depend for their proof upon the unsupportedtestimony of Mrs. Thompson's relatives—the nephews and nieces—may be excluded from consideration. It is true that, whenever an apparently impartial and entirely unimpeached witness testifies to conduct on the part of Mr. Hitt which discredits his claim to the $32,000 indebtedness, he does not hesitate to contradict the witness point blank, or attempt to give an explanation of his conduct which sustains an ingenious theory that the impartial witness was not false, but mistaken or forgetful.
Mr. Hitt stands contradicted by a very large number of witnesses, including a number of the interested relatives of Mrs. Thompson. If it were necessary to discover who tells the truth where Mr. Hitt is contradicted by one of the nieces or nephews, the safe conclusion would be that Mr. Hitt, whose interest is far greater than the opposing witnesses, cannot in every case be right, and the contradicting nephew or niece false and wrong.
But without going into all the details of Mr. Hitt's conduct subsequent to Mrs. Thompson's death, including particularly his declarations, there is enough of this conduct so proved as to make it absolutely necessary that the proof should be accepted, notwithstanding his denials or attempted explanations.
Now, let us see what facts Mr. Hitt must have known—what facts must have been ever present in his mind during the period following Mrs Thompson's illness and death, during which he pursued the conduct which we must accept as proved by impartial witnesses. We now assume that Mr. Hitt's claim is substantially true. Mr. Hitt knew that Mrs. Thompson's estate owed him $32,000 for borrowed money, for which he held Mrs. Thompson's note which had been executed in the presence of a living witness manifestly for the purpose of facilitating its proof. He knew the nature and extent of Mrs. Thompson's estate, was capable of describing it in detail, and was plainly aware of its approximate value. The note for $32,000 which Mr. Hitt held had been executed less than a year prior to Mrs. Thompson's stroke, and during that time comparatively few transactions are alleged to have taken place between these people, so that Mr. Hitt could hardly have been in a position of anxiety on account of any unsettled pecuniary matters between himself and Mrs. Thompson. What would a man in Mr. Hitt's position naturally have done upon the death of this debtor, whose entire estate was probably inadequate to meet the debt due to him? Would not such a creditor have naturally immediately announced his claim, and stated, in substance, to the relatives or devisees under the old will: "You can take the property Into your possesion, but here is my claim, which will absorb it all." Instead of pursuing this course, it seems almost safe to say that every act and declaration of Mr. Hitt in relation to Mrs. Thompson's estate and his claims upon it appear to be inconsistent with the existence of this $32,000 note and claim. When young Dr. Culver saw Mrs. Thompson, within about four hours after her seizure, what Mr. Hitt wanted to know from the doctor—what he was anxious about—was whether there was any immediate danger of Mrs. Thompson's dying, because Mrs. Thompson was indebted to him, and he wanted to get some papers signed by her. Upon Dr. Culver's second visit, later in the day, Mr. Hitt renewed his anxious inquiry on this subject. If Mr. Hitt held Mrs. Thompson's note for an amount as great as her estate would yield, to his knowledge—a note executed in the presence of a witness who lived in Jersey City, and could readily be produced— why should he be so anxious about getting further papers signed?
Although I have avoided, for obvious reasons, dealing with the $32,000 claim and the $10,000 claim on the Kingsford note, together, yet I cannot help pointing out here how preposterous these two claims, when taken together, appear to be, in view of this testimony of Dr. Culver. Mr. Hitt not only held this note for $32,000, which he knew would probably absorb the entire estate, but, if we accept his further claim, founded upon the testimony of Clara Longquist, only two hours before he anxiously followed Dr. Culver into the parlor to ascertain whether Mrs. Thompson could sign papers, so as to secure an indebtedness to him, Mrs. Thompson had given him the Kingsford note for $10,000, and had made this donation in the presence of a person whom he desires us to accept as a credible witness. Some days later, during Mrs. Thompson's illness, she undertook to cancel a mortgage which she held upon property belonging to a relative, and Mr. Hitt stood by and made no objection. She also sought to procure a lawyer for the purpose of effecting this cancellation, and for the purpose of making a will or making conveyances of her property. Mr. Hitt took part in these transactions, without disclosing the fact that Mrs. Thompson's estate owed him more money that it could pay—that every dollar of her estate would probably be required to meet his claim for borrowed money.
After Mrs. Thompson's death, Mr. Hitt made a large number of claims affecting the estate of Mrs. Thompson to many different witnesses, including a number of witnesses about whose impartiality and honesty no question can be raised. There were many instances in which it is almost impossible to believe that Mr. Hitt, whether he is to be dealt with as an honest man or as a dishonest man, a truthful man or a constitutional falsifier, would have concealed the existence of this $32,000 note if it was in existence at the time. In many instances the explicit statements which he makes are entirely inconsistent with the theory that his pecuniary relations with Mrs. Thompson wereindicated by a series of settlement notes made from time to time, which finally culminated in the note for $32,000, made less than a year before Mrs. Thompson's death. A number of these inconsistent statements are testified to by relatives of Mrs. Thompson, but many more are testified to by witnesses whose credibility cannot be in any way impeached. There is a great deal in the testimony to justify the theory that Mr. Hilt, being disappointed in procuring any testamentary disposition in his favor from Mrs. Thompson, was for many weeks after her death casting about for some grounds—any grounds—on which to make a claim against her estate.
On the day of Mrs. Thompson's death he declared to Messrs. Wollever and Durrell that Mrs. Thompson had not left him the scratch of a pen; that she left him nothing in his interest; that she intended to leave him something, and was going to make out a will or other writing just prior to her death, but that her relatives would not let her alone, and he (Hitt) could not have any private conversation with her, and so she failed to make out the papers. Mr. Wollever further testified that Mr. Hitt stated that Mrs. Thompson was going to give him (Hitt) the house belonging to Mrs. Thompson, which he (Mr. Wollever) occupied as tenant. The attempted explanation of this testimony by counsel, on the theory that Mr. Hitt was speaking merely of a will, is plainly inadequate and unsatisfactory. Hitt was bewailing his loss, and distinctly creating the impression that he (Hitt) had lost a benefaction from Mrs. Thompson because her intention to convey property to him in some way had been thwarted by her relatives, who constantly surrounded her. If Hitt had this $32,000 note in his possession, not to mention the $10,000 Kingsford note in addition, it is unreasonable to suppose that he would have made such statements and acted such a part as are described by Messrs. Wollever and Durrell. Mr. Wollever further testified that immediately after Mrs. Thompson's death Mr. Hitt came to him, and claimed that the rents of the house occupied by Wollever were due to him (Hitt), and proposed that the tenant (Wollever) should destroy his lease and his prior receipts from Mrs. Thompson, and accept receipts from Hitt in place thereof. Hitt served notice upon Wollever to pay the rents to him, and the paper was put in evidence, bearing date August 25, 1900. How can one believe that Mr. Hitt, having an honest claim upon Mrs. Thompson for $32,000, not to include the Kingsford note, which would make his total claim $42,000, would make this fraudulent assertion to Mr. Wollever, or serve this fraudulent claim to the rent upon him?
At the very start, Immediately after Mrs. Thompson's death, we find Mr. Hitt setting up the false claim to a common-law marriage. This an unscrupulous and dishonest man In Mr. Hitt's position would be very liable to do, in view of the facts which I have found to be established in this case in regard to the relations of these two people, provided he thought that he could thereby obtain any personal advantage. But if Hitt had a prior charge on all Mrs. Thompson's estate as creditor to the extent of $32,000, disregarding the alleged gift of the Kingsford note, it is difficult to see why he would conceal his perfectly honest business demand, which amounted to a small fortune, and, while bewailing the failure of Mrs. Thompson to give him any benefaction, set up this claim to a common-law marriage. A few days after Mrs. Thompson's funeral, Mr. Hitt found means to exclude her relatives from her residence. He declared that he had a lease from Mrs. Thompson of the residence, or a portion of the residence, which lease had a considerable time yet to run. While he was thus in possession he told one Mrs. Miller, who appears to be an entirely disinterested witness, and who inquired with surprise as to the reason of his remaining in possession, that he was remaining until he should get $5,000 that was due to him. One of the relatives testifies that Hitt told him that he was going to get seven or eight thousand dollars, or that that amount was due him. Hitt spoke to several witnesses about his making a claim against Mrs. Thompson's estate for services that he had rendered to her, and stated, if I remember right, to one witness, that what he could prove, or the period for which he could make charges, would yield him very little. To a number of witnesses Mr. Hitt most distinctly claimed that he had an interest as partner with Mrs. Thompson, or otherwise, in specific pieces of her property, and he even alleged that half the money in her name on deposit in the bank belonged to him (Hitt). Mrs. McCarty, an intimate friend of Mrs. Thompson—not interested, however, in her estate—testifies that on the day of Mrs. Thompson's funeral she (Mrs. McCarty) had a conversation with Hitt in which she asked him of Mrs. Thompson had made a will, and that Hitt replied that that was conditional on how the heirs treated him; that Mrs. Thompson had not left him a cent; that he had not a cent to his name; and that he could not be dispossessed for 18 months.
I shall not undertake to state, for I certainly cannot recall, all of the declarations of Mr. Hitt in regard to his various claims upon Mrs. Thompson's estate which he made after her stroke, and especially after her decease, which are, to my mind, inconsistent with the existence of this alleged debt of $32,000. It is impossible to disregard this mass of evidence against Mr. Hitt, and it is impossible to accept his denials or explanations.
Before leaving this part of the case, however, I should refer particularly to the interviews between Mr. Hitt and the complainantDr. Varick, as administrator, and his counsel, Mr. Isaac S. Taylor. These gentlemen first called at the Thompson residence on August 16, 1900, a month after Mrs. Thompson's death. They called in an official capacity, for the purpose of getting information in regard to Mrs. Thompson's estate, and the claims against it. They found Hitt in possession, with his niece, Clara Longquist, and at first indisposed to let them in. Mr. Taylor proceeded, in the discharge of his duty as counsel for the administrator, to put questions to Mr. Hitt, and he took notes of the information which he thus received. Mr. Taylor testified, refreshing his recollection from these notes. Mr. Hitt made various claims in relation to moneys which he said he had put into Mrs. Thompson's property, and, among other things, stated that as to certain houses Mrs. Thompson and himself were partners, and that he had put in them about $5,000. He stated further that Mrs. Thompson bad given him the Kingsford note and the furniture in the house on June 29th, the day of her stroke. Sir. Taylor then asked Hitt what other claims he had against Mrs. Thompson, and Hitt replied that he had no claim, except in matters of partnership, and that he would give up the possession of the house if his claims were secured. Mr. Hitt then went on to volunteer very minute information as to all the facts and circumstances upon which he based his claim to a common-law marriage with Mrs. Thompson. Although he had every opportunity to refer to this note of $32,000, if it then was in existence, Mr. Taylor testifies that ho said nothing about it. Mr. Taylor was conducting a close professional inquiry as to the assets and liabilities of Mrs. Thompson's estate. If anything had been said about this note, he could hardly have missed it. It is a very curious fact that Hitt told Mr. Taylor that Mrs. Thompson had told this man Culver about the common-law marriage some years after it had taken place. The ingenious counsel for defendant tried to make it appear that Mr. Taylor, owing to partial deafness, misunderstood Mr. Hitt's statement— that Mr. Hitt referred to some obligation which he held against Mrs. Thompson, of which Mr. Culver was the witness. Mr. Hitt, of course, gives testimony in support of this theory, just as he, without hesitation, contradicts the testimony of half a dozen or a dozen different witnesses, many of whom are plainly entirely credible and impartial. There is a large mass of testimony in addition to Mr. Taylor's, some of which I have heretofore referred to, which goes to show that Mr. Hitt, disregarding considerations which ought to have secured his silence on the subject, put forth this claim that Mrs. Thompson was his common-law wife, in the belief that, he thereby established a foundation for some claim on his part against her estate. That Mr. Hitt for some weeks after Mrs. Thompson's death thought that he was promoting his interests and strengthening his claim against the Thompson estate by claiming the existence of this common-law marriage, I think, is clearly established. It is certainly a most significant and suggestive fact that while the common-law marriage, in Mr. Hitt's mind, was the important fact to be proved, and long before he had alleged the existence of a $32,000 note, or apparently became conscious that his claims as a creditor to the extent of $32,000 made all other claims of little or no consequence, he pointed out this man Culver as the convenient witness by whose testimony the common-law marriage was to be established.
On August 23d Mr. Taylor and Dr. Varick again went to the Thompson residence, in order to make an inventory, and had further conversation with Mr. Hitt. Mr. Taylor testifies that he again asked Hitt what his claims against the estate were, and that Hitt said that he had no claims, except in matters of partnership in patents and real estate, the extent of which he declined to state, but that he would inform Mr. Taylor later what this partnership was. On September 7th Mr. Taylor testifies Hitt told him that he claimed one-half of all the real estate and all the personalty. Later in the same month Hitt refused to surrender possession of the Thompson residence, telling Mr. Taylor that they could not put him out. At none of these interviews did Hitt refer to any note for $32,000, and Mr. Taylor and Dr. Varick both testify that their first notice of any such alleged note came at a later date—I think, in October.
My conclusion from the whole testimony in regard to the declarations and other conduct of Mr. Hitt during a period of some weeks following Mrs. Thompson's illness and death is that it is not reasonable to conclude that Mr. Hitt would have said the things he is proved to have said, done the things he is proved to have done, made the claims against Mrs. Thompson's estate which he is proved to have made, if he honestly believed that he stood as a creditor of Mrs. Thompson's estate to the extent of $32,000, and that he held an honest note, signed by Mrs. Thompson, for that amount, and signed in the presence of a witness who could be produced at any time. The explanation which Mr. Hitt undertakes to give of his silence in regard to this note, because he had temporarily lost it, is to my mind entirely unsatisfactory, and involves difficulties for which no explanation of any kind is offered.
I have occupied too much time with what I intended to be a mere outline of the considerations which have persuaded me that this $32,000 debt is an entire fiction; and therefore the complainant, on that issue, is entitled to a decree for the cancellation of the note, and establishing its invalidity.
And now, having reached this conclusion upon this first question, the more difficult question remains, and that is as to whetherthe alleged gift causa mortis of the Kingsford note was made by Mrs. Thompson to Mr. Hitt on June 29, 1900, the day when she received her stroke, from which she died about two weeks later. I may again refer here to the effect upon Mr. Hitt's claim to this gift of a conclusion in his favor as to the $32,000 note. It is because I have felt constrained to conclude, from the testimony in this cause, that Mrs. Thompson did not owe Mr. Hitt $32,000, that a great deal of the difficulty conies in relation to the alleged gift. If she owed him $32,000, she knew right well, if she was an intelligent woman, that she owed him more than could probably be realized from her estate. That she would, in this situation of affairs, practically in secrecy—in secrecy so far as her family was concerned—make him a donation of the $10,000 note, is very improbable. At any rate, it is not likely that she would make the donation in the manner and under the circumstances that the defendant would have us believe. But the fact that I find is that Mrs. Thompson owed Hitt nothing at the time of her death. My own belief is that if she received all the money that he ever got by the sale of his patents, or otherwise, that would not even up the account between them. They were living in a very peculiar way. They could give moneys to each other without creating any indebtedness. In my judgment, the testimony here shows that Mr. Hitt had very much the better side of the bargain, as between himself and Mrs. Thompson. All the wages that he earned, and profits that he made, if he turned them over to this woman, would not make up to her, in my judgment, what she must have expended directly on his behalf. These moneys went to Mrs. Thompson, in my opinion, very much as the wages of a mechanic—of an honest, sober, industrious mechanic—go, every two weeks, to his wife, when he gets his wages and goes home.
I think, therefore, we start out to deal with this alleged gift upon the theory that Mrs. Thompson owed Mr. Hitt nothing on June 29, 1900, at the time she received this stroke. She knew that her relations with Hitt were exceedingly unsettled, and that proceedings might be had after her death which would result in very unpleasant disclosures. She had every reason to have a settlement with Mr. Hitt, and it may be that this unsettled situation was preying upon her mind, and resulted in the statements which she made, and which are proved by numerous witnesses, some produced on one side, and some on the other, in this case. These witnesses show that the open account between herself and Mr. Hitt was giving her trouble. She was fond of Mr. Hitt, though. There is no doubt about that. There was no breach of their relations down to the very last day of her life; and here were these letters, these affectionate letters, written just a few days before her stroke—written by her to Mr. Hitt She would naturally desire to accomplish two things, in my opinion: She would wish to have her affairs in such shape that there would be no discreditable disclosure after her decease. She worried about that, and she wanted to have a settlement, so that could be all cleaned up, if she was about to die. And I think that it is highly probable—whatever might have been the balance of an account stated between these two parties, if such an account were possible— that Mrs. Thompson would wish to make some benefaction to Mr. Hitt When I refer to the stating of an account between them, 1 am not intimating for a moment that the relations between these two people—the money relations, the pecuniary relations—were of a character to be reduced to any legal or business rules. They were confidential relations, and, as I said a little while ago, the money passed between them as between man and wife. But if a fair and equitable account of benefits received by each from the other could be stated, then, in my opinion the account would be largely, substantially, in Mrs. Thompson's favor; and yet, notwithstanding that fact, it seems to me to be highly probable that Mrs. Thompson would wish not only to have a settlement and clearance with Mr. Hitt, so as to have all their transactions protected from scrutiny after her decease, but that she also might wish to make him a substantial present. The fact that Hitt had had a disreputable career in the past is of no consequence, because Mrs. Thompson is not shown to have known it. When he was charged with having been guilty, I think of arson (and it appears, I think, that he was arrested out West for that crime, and was tried and acquitted), Mrs. Thompson investigated the matter (so she said—so she told Mr. Cobin), and satisfied herself that the charge was not true. All that was bad about Hitt had occurred prior to June, 1900. All that Mrs. Thompson knew about Hitt that was evil, she must have known then. But there is not a shadow of doubt about it that in June, 1900, Mrs. Thompson had an affectionate regard for Mr. Hitt She loved this man, whether he was a bad man or not. Her feelings towards him were such, it seems to me, as to make it highly probable that she would wish to benefit him, either by a will, or by a gift causa mortis if the circumstances did not admit of her making a will. I think, therefore, we start out with the proposition that the circumstances of these two people at the time of the alleged gift were such as to make a gift causa mortis from Mrs. Thompson to Mr. Hitt highly probable. The question is, did she make such a gift?
It is urged on behalf of the complainant that this note, being a negotiable note, could not be the subject-matter of a gift without an indorsement. I cannot adopt that view. There is no authority whatever to sustain it. The authorities cited are to the effect that even nonnegotiable notes may be the subjectmatter of a gift causa mortis. The authorities are not to the effect that negotiable notes cannot be the subject of a gift without Indorsement. The authorities cited are dealing with the effect of the delivery of the evidence of a chose in action, where the legal title to the chose in action does not pass by delivery; and the authorities are all to the effect that nonnegotiable notes, insurance policies, savings-bank books, and similar evidences of choses in action, may be the subject-matter of gifts causa mortis, upon the idea that, while the legal title does not pass, an equitable title does pass; that the possession of the evidence of the chose in action places the donee in a position, if not to collect, still to exclude the donor or his estate from collecting; and thus a conclusion has been reached, not without adverse rulings, however, that this class of choses in action may be the subject-matter of a gift causa mortis, by delivery. But where you have a negotiable instrument, there is no reason why a transfer of it, by way of gift causa mortis, cannot be made by delivery and without indorsement. I can see no reason why, if a nonnegotiable note can be the subject-matter of a gift, a negotiable note may not in like manner be the subject-matter of a gift; in each case, of course, there being no indorsement and no assignment. But where the subject-matter of the alleged gift causa mortis is a negotiable promissory note, and the gift is made by the payee of the note to a third party, where it is alleged that such gift was made by delivery of the note to a third party, and it appears that both parties to the transaction understood perfectly well that the regular mode of transferring such a security was by indorsement, then the absence of an indorsement is a circumstance which throws great suspicion upon the gift, in my opinion.
Mrs. Thompson understood perfectly well on the 29th day of June, 1900, if she was in the possession of her faculties, that she could not give this note to Mr. Hitt, so that he could collect it readily, without indorsement. Mr. Hitt understood that perfectly well. And yet it is alleged Mrs. Thompson, with time to write and the ability to write her name, handed this note over to Mr. Hitt, as a gift which would be absolutely operative in the event of her decease, and that she was deeply interested in making this gift to him. Yet she did not call for a pen, and indorse the note that she thus endeavored to give.
It seems to me that in all cases where it is claimed that a chose in action has been transferred as a gift causa mortis, by delivery alone, and it also appears that there was opportunity to accompany the delivery of the evidence of the chose in action by a written assignment, and the parties understood the necessity of such written assignment in order to effect a complete legal transfer, it is safe to hold that a strong presumption is raised against the existence of a donative purpose on the part of the dying person, together with the other external facts which are necessary to support that donative purpose and make it effective as a gift. There is no explanation offered in this case for the neglect of Mrs. Thompson to indorse this note. The whole proof of the donation consists in the testimony of Clara Longquist, the niece of Mr. Hitt. She came from the West and took up her residence with Mrs. Thompson in February, 1899, and remained there continuously with Mrs. Thompson until Mrs. Thompson's death. Mrs. Thompson received her into the house. She was not there as a servant. She was there more as a child. Her presence in the house only further illustrates the affectionate feelings of Mrs. Thompson towards Mr. Hitt. But Clara is the only witness, and the question is whether, under all the testimony in this case, this court would be justified in taking $10,000, almost a third of the entire estate of Mrs. Thompson, from her relatives, in order to give it to Mr. Hitt. The question is, is it safe to stand a decree affecting so much property upon the testimony of this single witness—this niece of the alleged donee, who was living with him, dependent upon him, and who at the time was only 16 years of age? It must be conceded that this young woman gave her testimony with great positiveness, and she repeated her story without variation; that she withstood several of the tests which astute cross-examiners subjected her to. There is very little in her story which can be pointed out which indicates untruthfulness. A transaction such as she described, however, might have occurred in the bedroom of Mrs. Thompson after she had received this stroke, and still it might not have included a gift of this promissory note.
These gifts causa mortis are dangerous things. The law requires, before Mr. Hitt can come into this court and claim $10,000 as an ordinary testamentary gift from Mrs. Thompson, that he should produce an instrument in writing signed by Mrs. Thompson, and also acknowledged with peculiar solemnity by her in the presence of two witnesses, who thereupon subscribed their names as witnesses. That is what Mr. Hitt would have to prove if he claimed a testamentary gift in the ordinary form of one-third of Mrs. Thompson's estate. And yet, in cases of these gifts causa mortis, it is possible that a fortune of a million dollars can be taken away from the heirs, the next of kin of a deceased person, by a stranger, who simply has possession of the fortune, claims that he received it by way of gift, and brings parol testimony to sustain that claim.
In. a long series of cases, which I cannot cite from memory, some in this state, and some in other states—recent cases—the danger of extending the law of gifts causa mow his is distinctly pointed out. We have the case in this state of Keepers v. Fidelity DepositCompany, 28 Atl. 585, in the Court of Errors and Appeals, in which Mr. Justice Dixon delivers the opinion of the court, and points out the danger of extending the scope of these gifts causa mortis. In that case he refers to a gift of a fortune invested in securities, and deposited in a safe deposit box, and where the donee produces the key and claims a symbolical delivery. The Court of Appeals called a halt to the extension of the rule as to the force and effect of delivery as a necessary element of a gift causa mortis. They stop short of the delivery of a key as a symbol. They recognize the fact that it would be very dangerous law if a man could possess himself from the dead body of a friend of the key of a safe deposit box, and then, by means of oral testimony which he could bring into court, establish his title to his friend's entire fortune.
Chancellor Kent, if I remember right, years ago laid down the rule that a chose in action which was not legally transferable by delivery could not be the subject of a gift causa mortis. If I remember right, under his ruling this alleged gift to Mr. Hitt would be held ineffectual, in the absence of an indorsement or a written assignment. After his day the law of gifts causa mortis undoubtedly was extended so as to make it possible to make such a gift of a life insurance policy, a savings-bank book, or of this sort of a note. It becomes one to speak cautiously, in view of the very many decisions on this subject, but I cannot help saying that I strongly incline to think that the rule laid down by Chancellor Kent is the wiser and safer rule. And just as the Court of Errors and Appeals in the Keepers Case protected the entire deposits of a rich man in a safe deposit box from the fraud of some person who might steal the key of the box from his dead body, so the savings of people of small means in savings banks and in life policies—because that is a common mode of investment nowadays—might well be protected by a rule which would require an assignment in every case. It seems to me that where the chose in action does not pass by delivery, where an assignment is necessary to make legal title, although it is too late to try to lay down a rule that without a written assignment no gift causa mortis will be sustained, I do not think it is too late to suggest as a proper rule that the absence of a written assignment, where there was knowledge of its importance and opportunity to make it, should raise a strong presumption against the gift—a presumption which cannot be removed in a case like this by a single witness, whose relation to the donee, or alleged donee, is such as evidently justifies the apprehension that she testifies under his control, under restraint from him, or at his dictation. It seems to me that in such a case the witness to sustain the gift should be an absolutely impartial witness—one about whose ability to tell the truth, and disposition to tell the truth, there can be no question whatever.
I incline to think that there is a further presumption established against this alleged gift, based on the confidential relations of the parties. There seem to be good grounds for holding that a gift by Mrs. Thompson to Mr. Hitt of $10,000, about one-third of her entire fortune—a gift which both donor and donee seem to have intentionally refrained from disclosing to Mrs. Thompson's next of kin—should be deemed prima facie the product of undue influence. If this be a correct conclusion, the gift could hardly be freed from its taint by the uncorroborated testimony of a girl of 16 years old, a relation and dependent of the alleged donee, who merely testifies to the facts which occurred at the time the gift was made, but who did not at that time know of the nature and extent of the confidential relations of the parties.
Notwithstanding the probability that Mrs. Thompson might feel disposed to give Mr. Hitt some substantial present upon her decease, and the direct and positive testimony of Clara Longquist, there seem to be strong grounds for the conclusion from the testimony already referred to that this gift causa mortis of $10,000—about a third of the donor's entire estate—has not been proved by testimony which can be safely accepted as adequate. But when we come to look at the conduct and declarations of Mr. Hitt which are amply proved in this case, excluding even the testimony of the interested nieces and nephews, the difficulties in the way of establishing this gift are greatly multiplied, and, in my judgment, become insurmountable. As we have seen, within two hours after the alleged gift was made, with the gift of $10,000 in his pocket, Mr. Hitt anxiously followed young Dr. Culver to know whether Mrs. Thompson would be in a condition to sign papers to secure an indebtedness due from her to him. We must now exclude the $32,000 note from consideration, and the alleged $32,000 indebtedness as a myth. We are dealing then with a man, a claimant, who stands before the court not only as a convicted criminal, but also as one who in this cause has preferred a fraudulent claim against the estate of a deceased friend. If Mr. Hitt had this $10,000 gift in his pocket, he hardly would have exhibited such anxiety to have Mrs. Thompson sign some paper which would settle an indebtedness due to him from Mrs. Thompson. If such an indebtedness was in existence, it seems strange that Mrs. Thompson should have made this gift to Mr. Hitt without making any reference to the debt which she owed, and the existence of which he (Hitt) was anxious about, notwithstanding the $10,000 benefaction which he had just received from his debtor. That Mr. Hitt made this anxious inquiry of Dr. Culver is not disputed. The rational way of accounting for it, in my opinion, is that Hitt was desirous that Mrs.
Thompson should make a will or conveyance for his benefit, and he naturally made the same representation to Dr. Culver in regard to moneys that were due him from Mrs. Thompson's estate which he afterwards repeated to Dr. Varick, Mr. Taylor, and other witnesses. It is a most extraordinary fact, if this $10,000 gift was made, that the existence of it was sedulously concealed by both donor and donee, even though circumstances occurred from time to time under which a declaration of the gift, especially by the donor, if such a gift had been made, would almost have been inevitable. Clara Longquist, Mr. Hitt's niece and dependent, who is brought forward as the sole witness of the gift, also concealed her knowledge of it; and, while her silence is less significant than that of Mr. Hitt and Mrs. Thompson, it la nevertheless a fact which makes against the truthfulness of the story which she now tells. The contention on behalf of Mr. Hitt is that Mrs. Thompson was fearful that she would die at any moment, or become incapable of making a will or otherwise taking care of Mr. Hitt, and that, in order to insure Mr. Hitt the benefaction which she intended, she hastily made this gift immediately after her seizure, and while her faculties were still bright. But a few days after her stroke, according to the testimony of a large number of witnesses, Mrs. Thompson was competent to do business, and proceeded, still in contemplation of death, to make gifts of her Jewelry, and even had brought before her the tin box from which it is alleged she had already taken the Kingsford note, and was making arrangements to cancel a mortgage which she held upon the property of her sister or niece, and yet she made no mention of this gift to Mr. Hitt. It seems almost impossible to believe that Mrs. Thompson could have remembered that she had made this gift, and yet refrained from mentioning the fact in the presence of her relatives who were the very persons whose knowledge of the fact would most amply protect Mr. Hitt. We can frame very many declarations which Mrs. Thompson very naturally would have made on this occasion when both Mr. Hitt and so many of her relatives were present in her bedroom. But the business goes on, the jewelry is distributed, the receipt is written on the mortgage for cancellation, the arrangements for procuring a lawyer are made, and Mr. Hitt takes part in all this business, but conceals the fact that Mrs. Thompson had made a gift to him of one-third of her estate in the form of this Kingsford note. What possible reason can be suggested which would appeal to Mr. Hitt's mind as an inducement to conceal the gift of this note? Would not a person in Mr. Hitt's situation, whether he was an honest man or a rogue, plainly see that the concealment of this gift was most dangerous; that the gift would have to be declared after Mrs. Thompson's death; that the very time and occasion for making an attack upon the gift Impossible was presented when all these relatives were in Mrs. Thompson's presence, and all he (Mr. Hitt) had to do was to announce the gift, and express his gratitude to his benefactress. In regard to the mental condition of Mrs. Thompson about two hours after her stroke, when the alleged gift was made, the proofs are not satisfactory, and make a finding as to the fact somewhat difficult. Without discussing any technical questions in regard to the burden of proof, or attempting to state the mass of testimony relating to this subject, I may say that the result of all the testimony, including also the failure of Mrs. Beulah Wilson to testify in regard to the matter at all, leaves my mind in doubt as to the competency of Mrs. Thompson to make such a gift as this at the time when, according to the testimony of Clara Longquist, the gift was made.
The magnitude of the alleged gift, also, in my opinion, makes against Mr. Hitt's contention. While it may be admitted that Mrs. Thompson, assuming that her pecuniary relations with Mr. Hitt were reduced to a business basis, and an account between them stated, might very naturally have wished to make a further benefaction to Mr. Hitt upon her decease, in addition to all the advantages which he had derived from their association together and from the use of her property, still I hardly think that the testimony in this case justifies the opinion that Mrs. Thompson would probably have given Mr. Hitt a clean slate, and then, in addition, have donated to him a third of her entire estate. The various statements that Mr. Hitt made to the effect that Mrs. Thompson had done nothing for him—left him not the scratch of a pen in his interest —all of which statements plainly implied that Mrs. Thompson had died without having an opportunity to express in substantial form her friendship for him, add improbability to the story that in fact Mrs. Thompson had made what in effect was a testamentary disposition to the extent of $10,000 in favor of Mr. Hitt.
The most important declaration of Mr. Hitt subsequent to Mrs. Thompson's death which discredits this alleged gift causa mortis was made to Mr. Josephus Plenty. This gentleman is evidently a man of character and of financial responsibility—a man who, as a witness, is shown to be entirely impartial, and whose credibility has not been in any way attacked. Mr. Plenty was one of the business men who were induced by Mr. Hitt to embark in the business of exploiting his patents. Within a few months prior to Mrs. Thompson's death, Hitt had worked for Mr. Plenty for a time as mechanic, earning wages at the rate of about $2.50 a day. The relations which these men sustained to each other were such as to make it highly probable that Mr. Hitt would talk frankly with Mr. Plenty, especially in relation to theestate of Mrs. Thompson. Mr. Plenty had been acquainted with Mrs. Thompson, and had been brought into business relations with her in connection with the patent business between himself and Mr. Hitt, and the machinery which Mr. Hitt and Mrs. Thompson owned in connection with that business. Mr. Plenty testifies that within a few days after Mrs. Thompson's death he had a conversation with Mr. Hitt, which appears to have been the sort of conversation which, under the circumstances, very naturally would take place between these two men upon their first meeting after Mrs. Thompson's death. Mr. Plenty inquired about Mrs. Thompson's death, and Hitt told him the circumstances of her stroke. Hitt stated that he and his niece were alone with Mrs. Thompson in the house; that she directed the niece to bring a tin box, and that it was brought; that Mrs. Thompson took out some papers and gave them to Hitt, and that among these papers were some certificates of stock in the Johns Manufacturing Company; that she handed these certificates, which amounted to about $70,000, par value, to Mr. Hitt, with directions that Hitt was to sell them, and put up a monument to Mrs. Thompson, and divide the remainder of the proceeds among the nephews and nieces. Mr. Plenty further testifies that he asked Hitt if Mrs. Thompson had not done anything for him, and that he replied that that was all that she did. Mr. Plenty also states that at that time Mr. Hitt said nothing about either a $32,000 note or a $10,000 note. Upon being further questioned, and going over the subject again, Mr. Plenty testified that he asked Hitt if Mrs. Thompson had done anything for him, and Hitt said "No," but that Mrs. Thompson had left him the stock as a trust. It is difficult to believe that Mr. Plenty can be mistaken in regard to the substance of this conversation. The circumstances under which it occurred, and the previous relations of Mr. Plenty with Mr. Hitt and Mrs. Thompson, indicate that Mr. Plenty must have felt a considerable degree of curiosity in making the inquiry of Mr. Hitt whether Mrs. Thompson had done anything for him. Plainly, the inquiry covered not only a testamentary benefaction, but a gift causa mortis. In reply, Hitt undertook to describe the very transaction in which he now claims, and his niece testifies, the gift causa mortis was made. If the gift of the $10,000 note in fact had been made, it follows that Hitt must have intentionally concealed the existence of the gift from Mr. Plenty, and must have intentionally told him what was not true. Nothing appears in the relations then existing between Mr. Plenty and Mr. Hitt which would seem to have been likely to induce Mr. Hitt to conceal the gift by misrepresentation and falsehood. I have not sought to recall the testimony of the in terested relatives in regard to declarations or other conduct of Mr. Hitt which seem to discredit the gift causa mortis which he now makes. Mrs. Beulah Wilson, however, a niece of Mrs. Thompson, and, I think, a nephew as well, unite in testifying that Mrs. Thompson, in Hitt's presence, a few days after her stroke, spoke of the Kingsford note as a valuable asset of her estate, which she then had in her tin box, and that Hitt heard this statement.
The declarations and other conduct of Mr. Hitt which I have mentioned—and there are more of the same sort which I do not undertake to recall—in my judgment, so far discredit the story which Clara Longquist now tells as to make it impossible, under the rules of law and of evidence to which I have referred, relating to the establishment of gifts causa mortis, to accept the uncorroborated story of this single witness as sufficient to prove that this very large gift in fact was made. It may be that Mr. Hitt, after Mrs. Thompson's death, pursued a policy of concealment, misrepresentation, and mendacity with reference to the gift which he then had in his possession. But Mr. Hitt makes no such claim, but, on the contrary, seeks to maintain that he was always truthful, and in his endeavor to establish that fact, meets the adverse testimony to which I have referred with contradiction or unsatisfactory explanations. If the state of the evidence which appears to me to compel the conclusion that Mr. Hitt has failed to satisfactorily prove this gift which he now claims is due in any measure to the dishonesty of Mr. Hitt in the conduct of this cause, and his untruthfulness in giving his testimony—if, in case Mr. Hitt had told the whole truth with frankness, a better case would have been made on his behalf for the establishment of this gift—he has himself to blame for the condition of the proofs upon which this court is obliged to act.
I have occupied three times as much time in the discussion of this case as I expected to occupy at the start, and I have, no doubt, omitted to touch upon a great many circumstances which sustain the two conclusions which I have announced. I think, however, that what I have said will be sufficient to indicate to counsel the main lines of argument which have led me to the conclusions which I have stated.
I shall therefore advise a decree that the note for $32,000 is not a valid obligation in the hands of Mr. Hitt, and that it be surrendered to the complainant for cancellation, and also that the alleged gift causa mortis of the Kingsford note has not been proved in this case by sufficient evidence to Justify its establishment, and that, in the absence of such proof, the fund representing this note, now in court, should be awarded to the complainant.