
    Jemima Crane, Appellant, v. Charles Phillips and Others, Respondents.
    Fourth Department,
    July 9, 1907.
    .. Money received — party— when plaintiff need not sue as administratrix — complaint.
    The plaintiff sxied to recover moneys alleged to have been advanced by her to the / defendant to deposit in a savings bank for her benefit. It was shown that the moneys were portions of an estate and the plaintiff claimed the same as a gift from her husband, the intestate, which claim at one time had been contested by the daughter. The mother and- daughter, however, had settled their differences and the latter did not appear in the action to recover themoneys. The defendant, xvho had deposited the money in the name of his wife, denied the ■ plaintiff’s title and made no admission of liability to any one.
    
      Held, -that the complaint should not have been dismissed solely upon the ground that the.plaintiff should have suejl as administratrix rather than'in her Own name, for her individual title to themoneys was not contested by the daughter, nor was the daughter’s title asserted by the defendant."
    , Appeal by the plaintiff, Jemima Crane, -from a judgment of the Supreme Court -in favor of the defendants, entered in the office of the cleric of the county of Oswego on the 15th day of May,. 1906, upon the report of a referee, dismissing the complaint upon the merits.
    
      S. M. Coon, for the appellant.
    
      F. T. Cahill, for the respondents.
   Spring, J.:

The plaintiff, an elderly lady, commenced this action to recover the sum of $l,300 and interest which.she. alleged she confided to the defendants Phillips in various sums during the years 1901 and 1902 to deposit with the defendant-savings bank for her benefit,, and also to recover the possession of the pass book containing the entries of such moneys. She claims that the money was deposited in the bank by the said defendants tó the credit of said defendant Bessie Phillips, the wife of the defendant Charles Phillips. The plaintiff demanded of the defendants the repayment of the sums deposited and the delivery of the said pass book. The defendants refused to comply with such demand and repudiated wholly-the claim of the plaintiff, and upon the trial denied that any sums were ever placed in the bank by them for- the plaintiff other than appeared upon her own pass book.

This question of fact, involving the real controversy between the parties, we do not pass upon, for there is another incidental question, not pertaining to the merits, which evidently influenced the decision of the referee and his erroneous determination of such question calls for a new trial of the action.

James Crane died intestate in. May, 1900, leaving him surviving his widow, the plaintiff, and Ida May Wilcox, his daughter and only next of kin. In August following the plaintiff was appointed the administratrix of the goods, etc., belonging to her husband. A controversy arose between the mother and daughter over the division of the personal property. The daughter commenced a pro ' ceeding in the Surrogate’s Court of Oswego county to compel the administratrix to' file an inventory, and later for a compulsory accounting. These proceedings were adjourned along from time to time until January 30, 1902, and in November 1901, the mother and daughter amicably ad justed their differences, and the proceedings seem to have terminated without any formal order or decree.

It was during the pendency of these proceedings that the moneys were committed to the defendants Phillips by the plaintiff to deposit for her. The plaintiff claimed that personal property which had once belonged to her husband, and which had been acquired through their joint frugality, had been given to her by the husband shortly before his'death. She was. harassed by the attempts of her daughter to compel her to disclose the amount of this money and property, with a view to its distribution as assets of Mr. Crane, the decedent.

The.Phillips and the plaintiff had long been friends and neighbors. She testified that her. husband advised her to consult Mr. Phillips if she needed advice over her property matters. She was often at the Phillips’ household after her husband’s death. She had little business experience, and in January, 1901, gave Mr. Phillips $500 to deposit in his name for her benefit. He made the deposit in the name of his wife, and the plaintiff acquiesced in this arrangement, and the subsequent-deposits were entered an the same pass book. All this time the plaintiff claimed to be the unqualified owner of this money. She testified that she inherited money from her father’s estate, and acquired some by her thrift during her long married life, and her husband gave the bulk of his personal property to her, and there is some corroborative evidence of the gift by the husband. ...

There is plenty of proof that these sums which she claims she turned over to Mr. Phillips to deposit belonged to her. The settlement of the mother and daughter occurred some time-before the commencement of the action. They were friendly after this reconciliation. The daughter with .her husband was present at the trial, although not sworn. ■ There is no suggestion that she' was. making any claim during the trial to the money deposited.

The defendants Phillips were not acknowledging a liability to any one. They did not offer to repay to the administratrix the sum which the plaintiff claims she had handed Mr. Phillips to be depos-' ited for her. They were disavowing the demand and disputing the story of the plaintiff, and contended that the entries upon the pass book of Bessie Phillips were all moneys which belonged'to her as the book indicated. If they had admitted that they had received those sums from the plaintiff, but were in doubt whether they belonged to her individually or as administratrix there would have been no litigation". The rights of the mother and the daughter,, if there was any conflict, would have been readily adjusted.

If the plaintiff’s story is to be credited that she intrusted these moneys to her friends, the defendants, to be placed in the bank tobe earning interest for her, there is very little left, under the evidence, to the proposition that the money belonged to her in her capacity as administratrix and not individually. The evidence should be strong and decisive to permit that defense to prevail, especially when there is no admission of liability, and no claim by the next of kin, and no attempt to bring, lier in as a party to the action, and no such defense is interposed in the answer.

The referee, however, lias disposed of the case on the ground that the plaintiff individually cannot maintain the action.- He finds specifically: “ That plaintiff has not proved by a fair preponderance of evidence that she was the owner of any of the 'moneys so deposited. That any moneys entrusted by plaintiff to either defendant Phillips-to deposit in the name of either defendant Phillips were the money of the estate of James Crane and.not of plaintiff individually.”

In his conclusions of law, after finding that the plaintiff is not entitled to recover either the bank book or' the moneys, he decides. “That plaintiff would not be-entitled to recover in this action any of said moneys entrusted by her to defendants Phillips or either of them, if any.”

In his memorandum or opinion lie., says: “If the evidence given by plaintiff had slidwn that the money plaintiff claims she entrusted to the defendants Phillips had been money absolutely belonging to plaintiff, and which her daughter had no right to inquire about or demand that plaintiff as administratrix should tell freely about on inventory or in Surrogate’s Court, I should feel very differently about this case. But Mrs. Wilcox had a right and plaintiff aa administratrix was bound • to give her full information about the property of James. Crane and all that was in his name at the time of his death or any reasonable time before. * * * Regretting that plaintiff’s desire to conceal from her own daughter may have deprived her of property, I believe that my duty as-referee is to find the plaintiff has not proved her case and to direct judgment in favor of defendants Phillips. Recognizing that the-courts often allow plaintiff trustees for creditors to recover property conveyed or concealed with illegal intent while denying relief to the one who conveys, .or ■ conceals, I express no opinion as to the right of one suing as representative of the estate of James Crane. As I do not believe that the money deposited was the property of Jemima Crane or that she was entitled to recover, I leave the other questions for future action-:”

This is not .a controversy .between the mother and the daughter. The plaintiff is seeking to recover moneys which she claims the defendants Phillips are unlawfully and dishonestly withholding from her,- and. the truthfulness of that claim is the gist of the action and the question to be determined.

The judgment should be reversed.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and fact.  