The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This action is brought by the plaintiff for a declaratory judgment decreeing that the title to certain bonds and mortgages more fully described in the complaint herein is in her, by virtue of "the acts of the late Katherine Schaefer in the delivery and recordation of the assignments of the mortgages, as well as the acts and conduct of the late Katherine Schaefer, subsequent to the recordation."
That plaintiff is making such claim is admitted by the answer interposed herein, but it is therein specifically denied that said claim is a meritorious one.
In the seventeenth paragraph of that answer the estate of Katherine Schaefer sets up the claim that "no right, title or interest in and to the mortgages referred to in the complaint herein is vested in the plaintiff, other than her distributive share, as such in administration proceedings, by virtue of the said plaintiff being one of the children of Katherine Schaefer, deceased."
It is upon the pleadings of the respective parties and the evidence received on the trial of this action that I am asked to render judgment in the case at bar.
The facts are as follows:
The decedent Katherine Schaefer was the mother of Elsie M. Speaker the plaintiff and the defendants Lillian Keating and Charles Schaefer; and the wife of Theodore Schaefer.
The said Lillian Keating, Charles Schaefer and Theodore Schaefer as administrators of the goods and chattels of Katherine Schaefer, deceased, are defendants in this action.
Adam Christmann was made a defendant simply because he had possession of the bonds and mortgages and assignments in question at the time of the commencement of the action. He had been an active member of the bar for 39 years, except during the time he was a Judge, and had a large practice in real estate law, and in the Surrogates' Courts.
He was a Judge of the Municipal Court of the City of New York, Borough of Queens, Third District, from January 1, 1920, to February 1, 1927.
He is a disinterested witness.
Katherine Schaefer for reasons of her own selected Elsie M. Speaker as the object of her bounty. These reasons will become apparent from the facts as they will later appear.
On December 21, 1936, prior to the execution of the assignments of mortgages hereinafter described, Katherine Schaefer, in pursuance of a plan, had her lawyer, Adam Christmann, a defendant in this action, prepare an instrument in the form of a letter, which was signed by the plaintiff Elsie M. Speaker, in the following words:
"I hereby authorize you to collect any and all interest on mortgages which may be held by myself and yourself, as joint tenants and sign for same.
"I further agree that I shall not make any claim against your estate for any interest that may have been collected by you.
On January 26, 1937, Katherine Schaefer in furtherance of said plan (initiated December 21, 1936, although considered by her prior to that time) caused to be executed, acknowledged and recorded, seven assignments of mortgages to Katherine Schaefer and Elsie M. Speaker, jointly, survivor to take all.
Frances Kanz testified that she knew said Katherine Schaefer for thirty years and the plaintiff Elsie M. Speaker for a like period, and was separated from them but renewed her friendly relations with said Katherine Schaefer in the month of October, 1936, and after that time until Katherine Schaefer's death saw her on an average of once a week, and sometimes went out with Mrs. Schaefer alone, and sometimes with Mrs. Schaefer and her son Charles, and also went with Katherine Schaefer and Charles Schaefer to visit the plaintiff in New Jersey, whom she visited alone and with whom she maintained close friendly relations.
She is a disinterested witness, and further testified that on a visit to said Katherine Schaefer in the latter part of January, 1937, the said Katherine Schaefer told her that Charlie had taken her to the lawyer's office that afternoon and that she had made over her mortgages in Elsie's (the plaintiff's) name and her reasons for so doing.
The defendant Adam Christmann, a disinterested witness, testified why Katherine Schaefer created the assignments of the mortgages in question.
The husband of the plaintiff, William Speaker, Jr., testified that the act of Katherine Schaefer in making the assignments was made known to Elsie M. Speaker a month after it was done, and I see no reason to doubt his testimony, as the plaintiff knew of the plan, see her letter (Ex. 7), and surely she knew of it during the lifetime of said Katherine as is shown by her actions hereinafter recited.
The defendant, Adam Christmann, further testified that the assignments were made pursuant to the instructions of said Katherine Schaefer, and that interest on said mortgages, during the lifetime of said Katherine Schaefer was to be made payable to said Katherine Schaefer, but that he did not collect and pay over the interest to said Katherine Schaefer, as that was attended to by her son Charles who collected the interest.
Between the date of the making of the assignments of the mortgages and the death of said Katherine Schaefer, which occurred on August 2, 1939, one of the mortgages, referred to in the testimony herein as the Roessler Mortgage, was paid off, and the plaintiff Elsie M. Speaker joined with the said Katherine Schaefer in the execution of a certificate for the discharge of said mortgage. (Exhibit C).
The monies obtained from the discharge of this mortgage were paid to said Katherine Schaefer only. William Speaker, Jr., the husband of the plaintiff Elsie M. Speaker, testified that said payment was made to said Katherine Schaefer under an arrangement made with said Katherine Schaefer by Elsie M. Speaker, that if any mortgages were paid off, the funds would be re-invested for their joint purposes. Of course he is an interested witness, but in view of all the circumstances, and especially in view of Exhibit 7 which referred to interest only and not to principal, and the fact that the said Katherine Schaefer was experienced in making mortgage loans, and the plaintiff was not, and further that the said Katherine Schaefer desired to live on the income, I am convinced that the witness was telling the truth.
Between the date of the making of the assignments of the mortgages on January 26, 1937, and the date of the death of said Katherine Schaefer on August 2, 1939, one of the mortgages became due, and said Katherine Schaefer and the plaintiff Elsie M. Speaker as parties of the first part joined in an extension agreement of said mortgage with one Clara Dietrich (Ex. 8). This agreement was not recorded.
The defendant Charles Schaefer testified that it was agreed by the plaintiff Elsie M. Speaker that on the death of their mother she would share the assigned mortgages with him, and that Exhibit 7 was given to protect his rights. This claim was made by him in his individual capacity, although he was one of the administrators of the goods and chattels which were of Katherine Schaefer, deceased.
Neither the defendant Adam Christmann, the witness Frances Kanz, or William Speaker, Jr., husband of the plaintiff, testified to any such alleged arrangement as testified to by the defendant Charles Schaefer, and certainly Exhibit 7 does not corroborate him or support his contention. I am convinced that there was no agreement on the part of the plaintiff, Elsie M. Speaker, with either said Katherine Schaefer or the said Charles Schaefer or with both of them to give to the said Charles Schaefer after the death of said Katherine Schaefer any of the said mortgages so assigned to her jointly with Katherine Schaefer.
Nowhere in the testimony of said Charles Schaefer do we find any statement that the plaintiff said she would give him half. He says that his mother, now dead, speaking with him and plaintiff said half and plaintiff acquiesced. The most he testified to saying to the plaintiff was: "I had to depend on her doing the right thing by me after my mother's death." I believe he is in error as to such a statement being made by his mother, or acquiescence by the plaintiff, as I am convinced ...