
    In the Matter of the Personal Claim of Malvina Wiltsie v. James Wiltsie, deceased.
    
      (Surrogate’s Court, Cattaraugus County,
    
    
      Filed December 9, 1887.)
    
    1. Statute of limitations—When demand necessaby to set bunking.
    The claimant, prior to the marriage, became owner of a farm worth about $4,000. She entered into an arrangement with her husband, whereby the money realized from the sale of said farm might be used by said husband, she to receive legal interest on said money and to be assigned mortgages for the principal whenever she demanded; he to have whatever he made in the way of bonus. The husband continued to have and invest said money, and no demand for an accounting or liquidation of said debt prior to his death was made by said wife. Held, that the statute of limitations would not commence to run against her until the husband had refused to perform his part of the agreement.
    ■3. Same—What opebates as a payment to take out of statute.
    The husband prior to his death had caused a certain mortgage to be transferred to his wife, to be applied in payment of the money he had taken under said agreement. Held, that this transfer of property in payment of this specific indebtedness operated the same as a cash payment, and revived the debt or prevented the running of the statute,
    8. Same—Effect of joining in satisfaction of mobtgage.
    The fact that the satisfaction of mortgages, taken by the husband when he invested the money, were executed by the wife, did not militate in any way against her.
    
      Cary & Rumsey, for claimant; J. Arthur Corbin and J. R. Jewell, for contestant, Amy Hitchcock.
   Spring, S.

The claimant, who was Malvina Huntly by name, married the testator in 1860. About a month prior to the marriage testator conveyed to her a farm situate in the town of Allegany in this county; on the first day of April, 1867, claimant sold this farm to one Leonard Sprague for $4,400, $1,000 of which was paid in cash to her husband, James Wiltsie, and $3,400 was secured by a purchase money mortgage, payable to Mrs. Wiltsie.

This sum of $1,000 was invested by Mr. Wiltsie in a real estate mortgage against Nathan A. Dye, bearing date April 4th, 1867, and payable to Wiltsie himself as mortgagee. At the time this was made Mr. Wiltsie stated that it was in pursuance of an arrangement with his wife whereby he was to handle her money, and, as he was engaged in the business of buying commercial paper and other securities, purchasing them at a discount, he was to have whatever he made in the way of a bonus, and was to assign to her mortgages whenever she demanded it in payment of the moneys so received belonging to her. Payments were made upon the Sprague mortgage from time to time, but they were invariably paid to Mr. Wiltsie, and by him invested for his benefit and evidently under the arrrangement mentioned.

In 1875 Mrs. Wiltsie received from Sebastian Weller and .another a mortgage of $515.50 which, while it is unexplained, is embodied in the accomit filed by her in this proceeding as a credit upon her claim.

In November, 1880, Mr. Wiltsie caused to be assigned to his wife a mortgage of $636 against one Elsie Schoonoven, explicitly stating it was to apply on the .account growing out of the payments made to him on the Sprague mortgage.

In September, 1877, the Sprague farm was sold by the then owner, and mortgages were given by the purchasers directly to Mrs. Wiltsie, but the payments made by these new mortgagors, as well as those made on the Schoonoven •and Weller mortgages, were uniformly paid to the testator.

In 1872 Mrs. Wiltsie obtained upon lands in Allegany ■county a mortgage against one Henry Huntly for the sum of $1,670. The proof is silent as to what source the money came from that was invested in this mortgage, yet the claimant’s chief witness, Mr. Willard, . and who was familiar with the financial standing of the Wiltsies, testifies that she had no property whatever except what came from the Sprague farm, so it is a fair presumption that this Huntly mortgage was the outgrowth of this farm sale. This is an especially irresistible inference in view of the fact that the claimant was a witness in her own behalf, yet vouchsafed no explanation of this mortgage.

The testator talked quite freely with his proposed executor, Willard, as to this indebtedness to his wife at the time of the giving of the Dye mortgage as above stated, and, casually, from time to time after this and again two or three years ago when Mr. Willard was critically sick. At these talks Mr. Wiltsie was free to admit the absorbtion of these payments on the Sprague sale in his own business, and in the last conversation seemed to be anxious that his wife’s rights on account of these payments to him should be carefully protected.

Counsel for contestant strenuously object to the allowance of this claim, principally upon two grounds:

First. It is urged with much adroitness, that the fact of the payment to Wiltsie of these several sums on these mortgages is not sufficient to uphold the claimant’s account against his estate; that he was simply her cashier, or secretary, and that the burden is upon her to show by unmistakable proof that this money was not received by her.

Did the claimant’s case depend wholly upon the isolated fact that these moneys were received by her husband, the position of contestant’s counsel would be a tenable one. Such a transaction in and of itself would be no more than a husband, especially a business man, would be likely to do-for his wife. But in this case there are other circumstances which serve to characterize the transaction. The $1,000 paid in cash at the time of the sale of the farm was-invested by Wiltsie in a mortgage payable to himself, and that investment was accompanied with the explicit statement that he was to handle her money in order that he might make the excess above the legal interest which he seemed confident he could obtain. This temptation to the-money-shaver was too strong to be resisted. Again, at the-time of the assignment of the Schoonoven mortgage, and at the times of his other talks with Willard, he admitted his liability to his wife, and his desire and intention to-transfer to her securities, and protect her in some other way on account of his use of these moneys.

The testator and his wife resided in the village of Allegany, and their principal business, for many years, seems, to have been loaning money, buying mortgages and other securities in that vicinity. In a rural township, a man’s, business is known to his neighbors, and is the subject of corner grocery and fireside talk. So that if Mrs. Wiltsiehad been personally taking securities in her own name, other than those presented on this trial, that fact would have been ascertained by the vigilant counsel for the contestant. If the money paid from time to time had been handed over to her by her husband, it is hardly probable she would have hoarded it in specie. The Wiltsieswere too thrifty for that.

These facts are all corroborative of claimant’s position,, and establish clearly to my mind that these moneys were-used by Mr. Wiltsie with the assent of his wife, but with the mutual expectation that he was to transfer to her se-' curities in payment therefor whenever she might require it.

Second. But is claimed her demands are barred by the-statute of limitations.

First. These moneys were not loaned to Wiltsie. He-was the custodian of her funds, her depositary and “ was to make over to her mortgages when she demanded it done. * * * He said he would pay this when she demanded. That he would accoúnt to her for the principal and interest, and what he could make over and above that he should have.”

Under this definite arrangement Wiltsie could not have been compelled to account to his wife, or assign mortgages: to her in liquidation of her claim until a demand had been made of him therefor, and a priori the statute would not. commence to run against her until he had refused to perform his part of the agreement. Boughton v. Flint, 74 N. Y., 476; Payne v. Gardiner, 29 id., 146; Smiley v. Fry, 100 id., 262; Howell v. Adams, 68 id., 314; Munger v. Albany City Nat. Bank, 85 id., 580, 587.

It is like the rule that has always obtained as to a deposit with a bank; a demand is necessary before a right of recovery accrues, and hence the statute of limitations does not commence to run until after a refusal to pay has been made by the bailee. Story on Bailments, § 88; Downes v. The Phoenix Bank, 6 Hill, 297; Pardee v. Fish, 60 N. Y., 265; Bank of North America v. Merchants’ Bank, 91 id., 106.

Second. But aside from the rule above invoked, the statute of limitations would not be available to the contestant.

In 1880 the Schoonoven mortgage was caused to be transferred to Mrs. Wiltzie by testator expressly to apply-, in payment of the moneys he had taken under the arrange • ment stated. This transfer or delivery of property in payment of this specific indebtedness operated the same as a cash payment and revived the debt or prevented the running of the statute. Smith v. Ryan, 66 N. Y., 352; Harper v. Fairley, 53 id., 442; Butts v. Perkins, 41 Barb., 509; Sibley v Lumbert, 30 Me., 253.

Nor does the fact that the satisfactions of these mortgages were executed by claimant militate against her. Even if the money had been taken by testator in pursuance of a written contract under seal to be invested by him for her benefit, it would still require the discharge of each mortgage to be executed by her.

The mortgages were payable to her, and the record thereof could only be cleared by a satisfaction made by her. The retention and investment of the money by him was in consequence of an agreement wholly independent of the mortgages, and their satisfaction had not the slightest bearing upon this arrangement between the testator and claimant.

A decree will be entered establishing the accounts of claimants, computing interest on the several payments made to Mr. Wiltsie at seven per centum until January 1, 1880, and at six per centum since that time. The estate must be credited with the Huntly mortgage, and the other credits set forth in the account with interest to be computed upon the same basis as the accounts chargable to the estate.

Formal findings of fact in accordance herewith will be filed to accompany the decree, and the costs will then be adjusted.  