
    Ruth H. Smith, Resp’t, v. Caroline A. Smith, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    1. Equity—Action to compel assignment—Evidence op teems op agbeement.
    The plaintiff placed certain moneys in the hands of the defendant to invest on bond and mortgage as claimed by her for her sole benefit. The defendant invested the money by purchasing two bonds and mortgages, the assignment being made to the defendant absolutely if she should survive the plaintiff, or if the mortgages should be paid off during their joint Eves, but in event of the defendant’s death before the payment of the mortgages the plaintiff surviving then to the plaintiff absolutely. This action was brought to compel an assignment from the defendant to the plaintiff. Held, that the silence of the plaintiff when informed of the terms of the investment soon after it was made was entitled to weight as an agreement that the investment conformed to the agreement between the plaintiff and defendant.
    8. Same—Action to compel assignment.
    
      Held, that such agreement being wholly for the benefit of the party seeking to sustain it and not being supported by any valuable consideration the assignment to the plaintiff should be made.
    Appeal from a judgment rendered at a special term in Suffolk county.
    Plaintiff and defendant are sisters. The plaintiff, in 1884, was living in Flatlands, Kings county. She had, in the savings banks-in Brooklyn, a considerable sum of money. Her sister Caroline, the defendant, offered to put out this money for her on bond and mortgage, so she could get more interest than in the bank. Plaintiff thereupon went to the savings bank with the defendant, drew out her money, and gave $2,000 of it to the defendant to invest for her on bond and mortgage. She took no receipt for the money, and there were no witnesses to the transaction. Defendant afterward told plaintiff that she had put the money on bond and mortgage, but plaintiff never saw the papers; was not present when the papers were taken, and did not know, at that time, •in whose name they were taken. The defendant did have the money put out on bond and mortgage. She purchased of J. Lawrence Smith two mortgages belonging to his wife, Sarah N. Smith, one for $1,600, and one for $400, and took assignment of the same as follows: “To said Caroline A. Smith, absolutely if she survives the said Ruth, or if the said mortgages shall be paid off during their joint lives, but if the said Caroline shall die before said mortgages are paid off, leaving said Ruth surviving her, then from and after the death of said Caroline, to said Ruth absolutely.” Plaintiff says that the money was to be invested in her name, and that no arrangement was made with the defendant to have it invested as the defendant invested it. It is not claimed that plaintiff participated in the transaction of the assignment, or gave any directions in relation to the same. That such was the arrangement between the plaintiff and defendant, rests upon the absolutely uncorroborated testimony of the defendant.
    Some time after the assignment was made, the defendant told the plaintiff she had invested the money in the name of both of them. Upon learning this fact, she authorized her counsel, Mr. Elliot Smith, to demand of the defendant that the mortgage be transferred to her. It appears that he did not do this, so that she subsequently authorized her present counsel to make the demand, which was done, and the demand refused. Whereupon this action was brought to compel the transfer of the mortgage to plaintiff. The cause was tried before Mr. Justice Bartlett, who rendered the following opinion:
    
      Milmot M. Smith, for Resp’t; Thomas Youny, for app’lt.
   Bartlett, J.

—It is undisputed that the fund which has given rise to this litigation was the sole property of the plaintiff. She turned it over to the defendant to invest for her on bond and mortgage. The defendant invested it by purchasing two mortgages, which she procured to be assigned to herself and the plaintiff, her sister, by an instrument of assignment which transfers the mortgages, together with the bonds and the moneys to grow due thereon, “to the said Caroline A. Smith absolutely, if she survives the said Ruth, or if the said mortgages shall be paid off during the joint lives, but if the said Caroline shall die before the said mortgage is paid off, leaving said Ruth surviving her, then from and after the death of Caroline to said Ruth absolutely.”

Since receiving this assignment, the defendant has regularly collected the interest on the mortgages and paid it over to the plaintiff.

The plaintiff brings the present suit to have the mortSages declared to be' her sole property and to compel the efendant to assign them to her, on the ground that she placed her money in the hands of her sister simply to invest; and without any agreement that the defendant was to have the fund in the event that she should survive the plaintiff or if the money should be paid during their joint Uves. The plaintiff expressly testifies that no such arrangement was made.

The defendant admits, in her testimony, that there was no agreement that the money should belong to her if the mortgages were paid off while she and her sister were both alive, and it is conceded that the assignment is wrong in that respect; but she insists that the plaintiff said she was to have the money if the plaintiff died first. The case turns upon this issue, as to which there is a direct conflict of evidence between the parties. I should be better satisfied if the testimony of the plaintiff could have been given in person upon the trial instead of by deposition; but assuming both parties to be equally credible, as I do, the decision would be against the one upon whom rests the burden of proving the alleged agreement that the invested fund should go to the defendant if she survived the plaintiff. Although inchned on the trial to think that the burden of proof, in all aspects of the case, rested upon the plaintiff, I am satisfied on further reflection that the affirmative of the issue as to the agreement in question was with the defendant. She relied upon the agreement, and it was for her to establish it by a fair preponderance of proof. I cannot say that she has done this.

It follows that there must be judgment for the plaintiff, but under the circumstances without costs.

Pratt, J.

—There is much force in the argument of appellant that the silence of plaintiff, when she was informed of the terms of the investment soon after it was made, is an admission that the agreement between the sisters was such as appellant now claims.

Yet in view of the fact that such agreement does not seem to be sustained by any valuable consideration, and to be wholly for the benefit of the party who seeks to sustain it, we decide, with much hesitation, that the judgment may be affirmed. No costs.

Barnard, P. J., and Dykman, J., concur.  