
    Thomas S. Vaughn, App’lt, v. Mary M. Strong, Adm’rx, Resp’t. Nannie L. Vaughn, App’lt, v. Mary M. Strong, Adm’rx, Resp’t.
    
      (Supreme Gourt, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    1. Trusts—Proof of.
    On the death of plaintiffs' father certain insurance moneys were paid to defendant’s intestate, who was their uncle. In an action to recover said moneys, Held, that proof of statements made by the intestate at the time of receiving the moneys, and afterward to the effect that the moneys were held in trust for plaintiffs and their brother, and that he refused on that account to let their mother have any of it, made a prima facie case calling upon defendant to overthrow it or account for the moneys to plaintiffs.
    S. Same—Evidence.
    Evidence that intestate authorized third persons to extend credit to and open accounts with plaintiffs’ mother, and that he made payments on such accounts, is incompetent and inadmissible to overcome such primafacie case, as it related to acts and declarations of intestate not a part of the res 'gestas, made in the absence of plaintiffs. So, also, as to an account between intestate and their mother.
    Appeals from judgments for costs in favor of defendant.
    
      W. Farrington, for appl’ts; Granville A. Ingalsbe, for resp’t.
   Mayham, J.

These cases were tried together as one action and involved the same questions of fact and law and are argued and submitted together on this appeal.

The cases arise out of "a claim made by the appellants respectively, against respondent as administratrix, which were rejected by her and referred under the statute to a referee approved by the surrogate of Washington county.

The referee reported in favor of the defendant in each case and his report was confirmed and judgment for costs entered in favor of defendant.

The undisputed facts disclose that Edward A. Vaughn died in 1871 intestate, leaving him surviving Anna E. Vaughn his widow, and William E. Vaughn, Nannie L. Vaughn and Thomas Vaughn, his infant children.

At the time of his death there was a policy of insurance on his life for $2,000.

That in J une, 1871, after the death of the assured, one Swift, who appears to have been the holder of the policy, paid on account of the. same to Thomas J. Strong, defendants’ intestate, and who was a brother of Anna E. Vaughn, $1,700.

The insurance policy is not in evidence and it nowhere appears in the case who was named as beneficiary. The estate of Edward A. Vaughn was never administei’ed upon and no personal representative was ever appointed for him. After' his death his widow and children resided with Thomas J. Strong, brother of the widow and defendant’s intestate, then an unmarried man; she and her youngest son about seven years, and the other two children for a less period.

The appellants contend that this money was received by their uncle, the defendant, for them and their brother, William F. Vaughn, and their uncle Thomas J. Strong at the time of the receipt of the same apportionated the same $650 to William F., $600 to Thomas L., and $500 to Nannie L., and held the same in trust for them in such amounts, and these actions or proceedings are prosecuted by these claimants for their, respective shares and they must be treated as parties plaintiffs prosecuting their respective actions upon that theory, and the ordinary rules of evidence applicable to such actions must be applied.

The burden of proof is upon plaintiff, to establish that the money in the hands of the defendant’s intestate was their money in the amounts indicated.

If it was, then it would not be subject to the control of or liable for their mother’s debt, and any payment to her or on her account is no defense to these actions,

If it was not theirs, then it matters little in these actions to whom it belonged, or what disposition was made of it, as in that case they would, not be entitled to recover, even though it belonged to the estate of their father,-for in such case the personal representative and not the heir would in the first instance be entitled to the fund.

The proof relied upon by the plaintiffs to ■ establish their title to the money were the statements of the defendant’s intestate at about the time of the receipt of the insurance money and during the time these plaintiffs and their mother resided with him.

The testimony of the mother of the plaintiffs upon this point was: “ My brother, Thomas J. Strong, was to hold it for the benefit of the children, all of them. It was proposed to invest this money, and Mr. Strong proposed to invest it as he thought best. Mr. Swift said he thought he might invest it, as he could do so perhaps to a very good advantage ; but my brother said he thought he was capable of investing it fully as good, and he could take it, and I was willing that he should.

“ I don’t recollect whether it was the same day, it was soon after, Mr. Strong came into sitting room; he had some papers in his hand; I did not read the papers; and asked me if I was satisfied with the division of this money as it was talked over, and I said I was perfectly satisfied; he said it was $600 to the boys, or $650 to Willie, $600 for Tommie and $500 for Nannie, and he says, 1 Are you satisfied now with the way it is divided ? ’ I says, ‘Í am, perfectly.’ ”

“ He always said it was the children’s money, that I could not have any of it, I had no right to it, or that he could not let me have it. I often proposed taking it and using it to my advantage, but he says: 1 You can't use a dollar of this money. I can’t let you have a dollar of this money, it is the children’s.’ ”

Another witness, Helen M. Ilolbroolc, a sister of intestate, upon this point testifies: I had a good many conversations with my brother, Thomas J. Strong, about the money he had received. It was the money that was transferred to his keeping by Mr. Swift. In these conversations he always said the money was for the children, and not for the benefit of Mrs. Vaughn in any'- way. He several times spoke about her wanting to have some of that money. He said she could not have any of the money; it was in trust for the children.”

Laura L. Baily, another sister of intestate, in her deposition taken by commission on this subject, says; I remember distinctly that Mr. Swift handed the check of $1,750 to my brother, Thomas J. Strong. From the talk' then and there I understood this was paid over into my brother’s hand for the benefit of these three children. He always spoke of this money as received by him in trust for these three children, and that it was held by him for their use and benefit. He never spoke of it in any other way than that it belonged to the children.”

This evidence of the statements of intestate as proved by these witnesses is not contradicted, but the force of the evidence of these witnesses is sought to be broken somewhat by the cross-examinatian, but it must be conceded that their evidence upon this point remains unchanged and standing alone it seems it would be sufficient, as against the personal representative of the intestate, Thomas J. Strong, prima facie to show that he received and held this money in trust for the children of "Edward A. Vaughn, deceased, and cast upon the defendant the burden of overthrowing such prima facie case or accounting for the money to these plaintiffs.

Upon this subject no direct evidence was offered by the defendant, but she seeks by circumstances to raise the presumption that this was the money of Mrs. Vaughn, and doubtless a fact may be proved by circumstances, but the circumstantial evidence must be competent in itself; a party may not resort to illegal evidence to prove a circumstance which, when proved, may tend to establish a material fact.

One of the circumstances sought to be used by the defendant upon this subject is found in the testimony of Guy W. Clark. After proving by him that lie was a merchant doing business in the vicinity of the residence of the parties, and that intestate was a customer of his, and that he was authorized by him to open an account with Mrs. Anna E. Vaughn, in 1872, defendant’s counsel asked Clark this question: “ Q. How, what passed between you ; what did you soyas to this account of Mrs. Vaughn?” This question was objected to by the plaintiffs’ counsel, and the objec- 1 tian was overruled, and plaintiffs excepted. Another witness was permitted to state the conversation between him and defendant’s intestate, in which Strong directed witness to give credit to Mrs. Vaughn, and at the proper time he would pay it, which he did.

The witness was then asked to examine his own books of aeeo unt, and. state the payments on the same made by intestate, which plaintiffs also objected to, but the objection was overruled and an exception taken, and the witness proceeded tosíate at length from the book the payments made by intestate.

This was clearly proving the acts "and declarations of defendant’s intestate in the absence of the plaintiffs, or of any one representing them, as to a transaction not constituting a part of the res gestee, and seems clearly inadmissible within plainest elementary rules of evidence, and it cannot, we think, be said that the evidence had no influence on the determination of the referee.

It is true that the intestate stated no reason to the witness for asking that credit be extended to Mrs. Vaughn, or for paying the amount of the account, but the referee was left to deduce, perhaps, a false inference that intestate held funds belonging to her.

A party cannot be permitted by his own statement thus to make evidence for himself in the absence of the other party. Evidence not more objectionable than this and of a kinder nature was received on a former trial of this case, and it was held error for which judgment was reversed. Vaughn v. Strong, 4 N. Y. Supp., 686; 22 N. Y. State Rep., 369.

We think also that the referee erred on the trial in receiving in evidence a copy of account between the witness Clark and Mrs. Anna E. Vaughn. Had this action been between defendant and Mrs. Vaughn it might have been competent as proof of a set off or counterclaim, but as against these plaintiffs it was clearly incompetent for any such purpose. Nor do we see how it was-competent as bearing on the question of the title to this money.

If the money belonged to the plaintiffs or the three children of Mrs. Vaughn, she could not hypothecate it or charge it with any liability for her debts, as the plaintiffs were infants and incapable of contracting or consenting in reference to it.

The object of the testimony probably was to show some implied equity in favor of the defendant’s intestate.

But if the plaintiffs failed to show a right to the money and that the intestate held it for them, no such implied equity need be proved by defendants, as the plaintiffs would necessarily fail in their action, and on the other hand, if their right to the money was established it could not be defeated by any arrangement or agreement, expressed or implied, between their mother and intestate, so that in any view as against these plaintiffs the evidence-was incompetent and inadmissible.

Other questions arose on the trial and are presented on this appeal. But we need not discuss them here, as the errors to which reference has been made seem sufficient to require a reversal of the judgment.

The judgment should be reversed, and a new trial ordered before another referee, with costs to abide the event, as provided by the statute in such case.

Learned, P. J., and Landon, J., concur.  