
    Catherine V. Thoma, Appellant, v. Irving Savings Institution and Others, Respondents.
    First Department,
    February 17, 1911.
    Assignment — proof insufficient to ’ establish mental incapacity of assignor.
    Action to recover a savings bank deposit claimed under an assignment alleged to have been executed by the depositor when insane and of unsound mind and memory. Evidence examined, and held, that a finding that the assignor was incompetent at the time of making the assignment was against the weight of evidence.
    Dowling, J., dissented.
    Appeal by the plaintiff, Catherine Y. Thoma, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the coutity of New York on the 14th day of April, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      Wayland E. Benjamin of counsel [Benjamin & Taylor, attorneys], for the appellant.
    
      Louis M. Sonnenberg of counsel [Studin & Sonnenberg, attorneys], for the respondents Rodgers.
    
      Robert E. Deyo, for the respondent Irving Savings Institution.
   Clarke, J.:

This action was originally brought against the Irving Savings Institution to recover certain deposits made by William Rodgers, deceased,, the plaintiff claiming under a written assignment from him. Agnes J. Rodgers, the sister of William Rodgers, by order of interpleader was made a party defendant, as administratrix of William Rodgers; and Edward Rodgers, the brother of the decedent* was also made a party defendant by said order because two of the accounts in question stood in the name óf William Rodgers, in trust for. Edward Rodgers. The court dismissed the claim set up by Edward Rodgers, and he has not appealed.’ The contest, therefore, is between the plaintiff, claiming upon an alleged assignment from William Rodgers, and his administratrix, claiming that .the accoun ts were his absolute property at the time of his death.

The learned court at Special Term made the following findings of fact: “ That, the alleged assignment offered by the plaintiff in this action, dated January 11th, 1909, purporting to assign and transfer the moneys on deposit in the Irving Savings Institution at No. 115 Chambers Street, Borough of .Manhattan, City and State of New York, to Catherine Y. Thoma, of No. 367 Prospect Street, Long Branch, State of New Jersey, tvas not executed by William Rodgers and does not assign the said accounts as it purports to ; that the said alleged assignment dated January 11th, 1909, is null and void [and] was and is without consideration of any kind; * * * that William Rodgers on January 12th, 1909, and for some time prior thereto, was insane and of unsound mind, memory and'understanding, and was thereby rendered incapable of. making or of .understanding the alleged assignment set forth in the complaint'herein, as the plaintiff well knew; * * * that on said January lltli and. 12th, 1909, the said William .Rodgers was in a dying condition and was incapable of transacting any business, and his mind was so affected and enfeebled that he was absolutely and completely incompetent to comprehend the nature of his acts/” And judgment was rendered dismissing the complaint upon the merits, adjudging that the Irving Savings Institution pay the accounts in question to the administratrix, and that the plaintiff deliver tip the alleged assignment to the clerlr for cancellation, with costs to the administratrix and the Irving Savings Institution.

The finding that William Rodgers for some time prior to January 12, 1909, was insane and of unsound mind, memory and understanding, and was thereby rendered incapable of making or of understanding the alleged assignment, is not supported by the evidence and is against the great weight thereof.

Rodgers was a singular character. He was sixty-nine or seventy years of age at the time of his death, and left about $30,000 in various accounts deposited in several savings banks in the city of New York. He resided in Long Branch, H. J. He had never married. He left a brother and a sister who lived, in the city of New York, whom he occasionally saw on his trips to the city to make deposits or to have his interest written up. He was a miser who, during the last twenty-five years of his life, had spent little or nothing upon himself. But he was not the kind of a miser who digs a hole in the cellar,'pom's in his gold, and then goes down to gloat over it from time to time. He was an intelligent miser, who put the money he could make or save in the savings bank, where it was not only kept safely but where it bred interest. He had at least a good common school education, was a great reader of newspapers, was accustomed to drive close bargains, was posted on financial affairs, talked with bank officials about stocks and bonds, in the days of horse racing at Monmouth Park got Appleby & Johnson to put money for him on the races, conversed intelligently with business men and his acquaintances, and comprehended what was said to him down to two hours before his death. He did woodchopping and odd jobs, slept in barns and outhouses, and for many years lived at the Thomas’,.sleeping in the barn and being given his meals by them. It would seem that if he was competent to accumulate $30,000 by every kind of self denial and personal privation, to deposit it in savings banks, to have his interest written up from time to time, and to draw out said interest, he was competent to dispose of it. If he was able to make and save his money he ought to have tlie. right to give it away.

Thanksgiving day he appeared tó have a bad cold, and the Thomas insisted that he should come into the house, but he resisted until the Saturday thereafter, when, having been told that he would have to go to a hospital or come in, he finally consented, and he lived .in the house thereafter until his death, on the twel fth of the following January.

Dr. Slocuin began visiting -him on December 19, 1908, and saw liiin a number of times after that, sometimes in bed, sometimes in a . chair. He testified that “ He had valvular heart disease and dropsy. His mind was clear ; he answered intelligently all questions. I did not see anything irrational in anything he said.” He saw him on the tenth of January, and lie. saw .him on the day he died, the twelfth, between ten and eleven o’clock, being with him ten or fifteen minutes. ■ He died some hours afterwards, but the physician testified, “We didn’t.'anticipate just at that time. * * ■* Q. Were you surprised. when yon learned he died that day? A.- I was very much surprised,” ■

On the.sixth of January he sent for Mr.. Woolley, who had been postmaster at Long Branch for twelve years and was secretary of the Hew Jersey Mortgage and Trust Company. Mr. Woolley testified that Mrs. Thom a said : “ ‘ Dodgers, here is Mr. Woolley come to make your will; ’ and he says, What will ? ’ The will that you were going to make leaving me part of your- property.’ He says, ‘ I don’t want to make.any will,’ he says CI want my bank books.’ ‘ Well,’ I says, Dodgers, I can’t get your bank books * * * without a '■ written order. If you desire me to get your bank-books I will go down to the office, prepare an order and come up to-morrow and have you sign it,’ and he seemed to think that was all right. * * * At the time he said I don’t want any will ’ he said, ‘ 1 am not going to die.’ * * * January 7 then, I told him that I had the paper for him to sign, and gave it to him.. He sat up in bed and read this over once or twice. * * * He read it himself; he read it over twice before he. signed it, and then I asked him if he was ready to sign, and he said yes, and then I got Mrs. Thoma to get a book to write upon, and he put the book oh his knees and was' seated up in the bed, that is to say, I steadied the book while' he read the paper. * * * At the time I was there previously he gave me this, card to assist in drawing the assignment, this and several others. * * * That card contains the numbers of the bank books * ■* * that he wanted me to draw the order for. * * * He said the reason he wanted his books was because lie wanted to see whether the interest had been credited on them. . * * *' He did not say anything to me as to what he was.going to do with the money represented by these bank books at the time I saw him.”

Mr. Pitcher, who testified that he was a justice of the peace at Long Branch, elected in 1855 and pretty continuously since, and was eighty-four years and five months old, testified that he saw Rodgers on the ninth of' January; “I talked to him alone in the room. * * * He said, ‘ Tes, sent for you; I want you to write me a will.’ ‘ Well,’ I said, ‘ I would go across to the schoolhouse, to the grammar school, and get paper, and I will come over and write it.’ Well, upon reflection, he thought he would wait until Hr. Anthony Woolley, who had the power of attorney to get his bank books from New York, came and then I could, come in to write it; so that matter of making the will was put over until he could hear from Hr. Woolley. * * * Q. Did he say, when Rodgers talked to you about this matter of giving his money to Hrs. Tlioma, did he say anything about-what she had done for him, make a reference to it ? A. It was out of gratitude to her; he said she had nursed him and taken a great deal of care of him during his sickness, and had ministered to his wants all his life with her, where she lives at present and also where she lived at the upper village. * * * He said * * * that he was going to make an assignment to Hrs. Thoma of the money in one of the banks. * * ' * I asked him should 1 do it, and he said no, he was going to make it, to give it. to her in one of the banks. * * ■ * Rodgers did not say he wanted-me to prepare the assignment; he said that he wanted me to write his will when Woolley returned with the books. * * * He said he was going to prepare the assignment. I asked him, ‘ Do you want me to prepare it?’ HA says, ‘Ho, I am going to make it.’ He was not ready then until the books came back from New York. * * * He told me he could find me; he would send for me to make the will.”

The assignment in question is as follows :

• “ Long Beanch, Hew Jeeset, Jan. 11—1909.
“ I hereby in payment for services rendered for a number of years past and especially during my present illness assign and transfer all the money I have on deposit in the Irving Savings Institution $ 115'Chambers Street, New York City, State of New York, together with all my rights under the same to Hrs. Catherine Y. Thoma | 367 Prospect St., Long Branch City, State of Hew Jersey.
“Witness John Cavanagh. WILLIAH RODGERS.”

It is conceded that the signature to this paper was made "by "William Rodgers^ and a comparison between this paper and the paper signed by him and given to Mr. Woolley on January sixth authorizing the savings banks to deliver the bank books shows an equally strong and firm signature. It is also conceded that the body of the assignment is in the handwriting of Harriet Thoma, the daughter-in-law of the plaintiff, "and that John Cavanagh signed his own name as witness.

The testimony is that young Mrs. Thoma, at "the request "and under the dictation of Rodgers, wrote this paper on the evening of January eleventh and that it ivas signed on the morning of the twelfth. If William Rodgers wrote thesignatnre, which is conceded!)' his, upon that paper after it had "been prepared and on the morning of January twelfth, as testified to, it was in my opinion a valid transfer and the plaintiff would he entitled to recover in this action. That he was competent to understand its purport and effect seems to me to be thoroughly established by" the three disinterested witnesses whose testimony I have alluded to.. In addition there i's the testimony of the subscribing witness," of young Mrs. Thoma, and of Albert Thoma, the plaintiff’s son. These witnesses were all inmates of the household, Cavanagh being a boarder, and the son and daughter-in-law at least may be considered as within the category of interested witnesses.

The claim is made" that the story told by Mrs. Harriet Thoma that Rodgers dictated the form of this assignment to her is incredible because he did hot have the knowledge requisite to frame such an instrument, and the suggestion is made that, while the signature on the paper is concededly his, it had been placed some time previously upon a blank piece of paper, above which the assignment was written, and the paper witnessed after his" death.

We do not now'pass upon the validity of this paper. We think that a new trial is. required in the interests of justice. We feel that tiie ■finding by the learned court that for some time prior to the twelfth of January Rodgers was irrational and incompetent, which we find unsupported by the evidence, may very seriously have affected the judgment. We point out that three witnesses have testified that the words “ William Rodgers,” “John Cavanagh ” and “Witness ” were written at the same time and in the same inluaud with the same per bv three different persons, and that the body of the paper was written the night before. There are ways of testing that testimony, and it ought not to be difficult to show whether the words “William Rodgers ” were written with the same pen and with the same ink as the words “ Witness ” and “ John Cavanagh.” If it should appear that they were not, it would furnish almost irrefutable proof that the paper was manufactured.

• There are other matters in the record which may be satisfactorily disposed of upon a new trial. A pure question of fact is presented and an affirmance by this court would be tina). The charge made against the plaintiff and the members of her family is so grave, the .evidence in support thereof so doubtful, and the conclusion of the court on an important part of the case so lacking in support in the proof, that we deem it our duty to reverse this judgment and order a new trial, with costs to the appellant to abide the event.

Ingraham, P. J., Scott and Miller, JJ., concurred; Dowling, J., dissented.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  