JULIA MCMAHON, as Sole Executrix, etc., of JOHANNA CRONIN, Deceased, Respondent,
PATRICK CRONIN, Appellant.
APPEAL by the defendant, Patrick Cronin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 13th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk's office denying the defendant's motion for a new trial made upon the minutes.
The action was brought by the plaintiff as executrix of the will of Johanna Cronin, deceased, against Quincy W. Wellington and Benjamin W. Wellington, to recover the sum of $764.26, the money represented by a certificate of deposit, dated June 6, 1906, issued by Q. W. Wellington & Co.'s Bank, of Corning, N.Y. The defendant claiming the money, was substituted as defendant, and the money was brought into court.
Johanna Cronin died September 12, 1906, leaving a will wherein she gave all of her personal property to the plaintiff, her sister, subject to the payment of the income to the defendant during life, and appointed her the executrix.
It appeared upon the trial that on the 25th day of April, 1900, the defendant deposited $300 in the Q. W. Wellington & Co.'s Bank to the credit of Johanna Cronin, his wife, and received a certificate of deposit for that sum, which recited that Johanna Cronin had
deposited $300, payable on return of the certificate properly indorsed; that each year thereafter down to the year 1906 the wife indorsed the certificate taken the year before, and the defendant surrendered it to the bank and took out a new certificate for the amount and the interest and other like deposits, to the credit of his wife, so that the certificate issued on the 6th day of June, 1906, was for the sum of $764.26.
The defendant testified that each year he took the certificate home and put it in a drawer, of which he had a key, and where he kept all his other papers and accounts, and that it remained there until he took it back at the end of the year to exchange it for another; that when he put the certificate of June 6, 1906, in the drawer he put the key in his pocket, and did not take the certificate out of the drawer until after the death of his wife.
It also appeared that the defendant had done considerable business at the bank; that he had made several other deposits, and the certificates of deposit had been issued to him in his own name.
The plaintiff, the executrix and principal legatee, was called as a witness on the trial in her own behalf, and gave evidence concerning a transaction between the deceased and the defendant. The defendant gave evidence in his own behalf, under section 829 of the Code of Civil Procedure, concerning the same transaction testified to by the plaintiff. His narrative of the transaction is substantially that he told his wife that the note was due in Wellington's bank and he wanted to get it renewed to keep it up to date, and that he did not find the key where he kept it; that the deceased said: 'If you put it in my name, if you will I will give you the key and you can have that note if you will put it in my name, but I know, she says, the money is yours, she said, and your earnings.' He also testified that she said that she would feel more satisfied and better, and it would make her mind easy if he would put it in her name. 'But I know the money is yours; ' that he said that he knew she was sick, and 'I don't want your mind to be uneasy, I said, but you know the money is mine; I will fix it that way to please you.' He said that he then went to the drawer and took out the certificate, asked the plaintiff to sign his wife's name to it, and went up to the bank with it, and that before he surrendered it and received the certificate in question he had a conversation
with Mr. Eaton, the cashier. The defendant was then asked, 'What was the conversation?' This was objected to by plaintiff's counsel, excluded by the court, and the defendant excepted. The defendant was also asked, 'When you deposited this money in the bank in your wife's name and took the certificate home and put it in your drawer where you kept your papers, did you intend that as a gift to anybody?' This was objected to by the plaintiff and excluded by the court, and an exception was taken to the ruling. The court also refused to permit the defendant to testify to the talk had with the people at the bank in April, 1900, when he deposited the $300 to the credit of his wife and received the first certificate of deposit.
Waldo W. Willard, for the appellant.
Alexander C. Eustace, for the ...