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Hance v. Frome.

that Mr. Ramsey acknowledged his trusteeship. Notably, in the spring or winter of 1879 he said to Daniel A. Young that he had given the complainant $2,000, which her husband had had the use of, but he thought he had it secured, as the latter had made over to him a judgment against the trustees of the school district, also a wood-lot, and the house and lot and some notes, and if he could collect the judgment her money was safe. The witness says Mr. Ramsey frequently spoke to him about the matter. To Robert L. Garrison he said he held the school district judgment in trust for the complainant, and that if Garrison would advance the money to her for it he would assign the judgment over to him. He also said that he had a $3,000 mortgage that he held for her, and that he would assign that to Garrison if he would furnish the money. Moreover, it is admitted and it is proved otherwise, also, that he paid over to the complainant the proceeds of the sale of the house and lot as he received them. There is, therefore, no room to doubt that he was her trustee in regard to property placed in his hands for her benefit by her husband to secure to her the payment of his indebtedness to her for borrowed money.

As to the property which he so received and held in trust, the complainant's husband testifies that it was the school district judgment, the $3,000 bond and mortgage, the wood-lot and house and lot, and the notes mentioned in the bill.

The proof that he held the school district judgment in trust for her is plenary. To Garrison he said he held it in trust for the complainant-that he held it for her benefit. To John C. Danley, the plaintiff in the judgment, he said he held it for her --for her benefit. To William Martenis, one of the trustees of the school district, he said the same thing. To William B. Cramer, that he had taken it from her husband to secure her money. To Isaac S. Dill, to whom he tried to sell it, he said that he wanted the money for her benefit that it belonged to her. To John Gardner he said he had papers in his hands to satisfy her claim if the district judgment was good, and to Daniel A. Young, as before stated, he said that her husband had made that judgment over to him, and also a wood-lot and the

Hance v. Frome.

house and lot, and the $3,000 mortgage, and some notes, and that if he could collect the judgment her money was safe. This testimony of Mr. Ramsey's voluntary statements to various witnesses at different times abundantly corroborates Frome's testimony, and supports the allegation of the bill in regard to the judgment. It is urged, on behalf of the defendants, that it appears from Frome's testimony, and also from Garrison's, that Mr. Ramsey was desirous of raising the money on the judgment in order to lend it to the complainant; but the proof is that he said that he had expected, or had promised, to raise the money for her (she wanted to use it, to save one of the farms which had been sold under foreclosure and bought in for her), but was not able to do so, because he had invested his money in some land, but at the same time he said to Garrison that he held the judgment in trust for her, and, as before stated, he said substantially the same thing to others.

The testimony of Young, twice above quoted, is also corroborative of that of Mr. Frome as to the $3,000 mortgage. So, also, is that of Garrison, who says that Ramsey told him he held that mortgage for the complainant. It is urged, on the part of the defendants, that Frome testifies that the understanding was, that Ramsey was to assign the mortgage to the complainant after the prior mortgage on the mortgaged premises had been paid off out of the money realized for her from the other securities; or, as he otherwise states it, that Ramsey was to hold that mortgage and buy the property, and give her a deed for it, so that she should own the mortgaged premises. But this testimony obviously does not impugn Frome's statement that the mortgage was given in trust for her. It is also argued that inasmuch as Ramsey, at or about the time the mortgage was given, held Frome's note for $3,000, it is quite probable that the mortgage was given for the note. But Frome swears positively that that note was satisfied otherwise, and was given up to him, and he swears explicitly that the mortgage was not given for the note, or the debt it represented, and that he owed Ramsey nothing when the mortgage was given. It may be added that it does not appear that Ramsey, at his death, held any note against Frome, nor that he had any book-account against him. Two witnesses, as before stated,

Hance v. Frome.

Young and Garrison, testify that Ramsey said the mortgage belonged to the complainant. Why, if it was his own, should he have said it was hers to either of them?

As to the notes, the evidence is not such as to satisfy me that Ramsey's estate should be charged with anything on account of them. Frome's testimony as to them not only is not in any way corroborated, but is in itself unsatisfactory.

The William Ketcham note he appears to have transferred to Ramsey, not on his wife's, but his own account, and he received the money for it. The Winter note, he says, was paid by him to Ramsey, and so, too, of the Thomas P. Frome note, but his testimony as to payment is not satisfactory, and it is a noticeable fact that he never endorsed the Frome note, which was payable to his order. The Boyd note he says he gave to Ramsey in order that he might get it discounted and use the money, which, he says, he owed to Ramsey. The Josiah Ketcham note of $157.50 was collected by Mr. Ramsey, but I am not willing, from the proof on the subject of the notes, to make any decree against Ramsey's estate in regard to that note. It is true Young says Ramsey told him he had notes among the other securities Frome had given him for the complainant's debt, but he does not say that Ramsey specified any note.

The wood-lot was evidently taken and held by Ramsey in trust for the complainant. According to the evidence, it was by his procurement that the conveyance was made to him. Having thus obtained the title to the property, it would be a fraud in him to deny the trust and seek to apply the property to his own use, and he could not, under such circumstances, be permitted to avail himself of the statute of frauds to effectuate such fraudulent design. Frome swears the lot was conveyed to Ramsey without consideration, and merely as security for the complainant's debt. Young says Ramsey told him he held it in trust for her. It does not appear that Ramsey paid any consideration for the conveyance. Both properties-the wood-lot and the house and lot -were included in the same deed, and it was given on the same date as the bond and mortgage. Ramsey sold the house and lot and paid the purchase-money over, as he received it, to the com

Hance v. Frome.

plainant. On the evidence, it seems clear that he merely held the property in question in trust for her. But the title is not in the executors. Though by his will he directed them to divide the residue of his property among his three daughters and a grandson, son of a deceased daughter, and, from this provision, title in them may be implied, that property is not included in the provision, it constitutes no part of the residue to be divided. No decree, therefore, can be made against the executors in regard to it. And here reference may be made to a paper put in evidence by the defendants and proved to be a statement made by Ramsey, before his death, substantially claiming the judgment as his own property. It is almost too obvious for remark that that paper is not competent evidence for the defendants. The complainant was not present when it was made, nor was her husband. The paper was written by a friend of Ramsey's who was called in for the purpose, and who wrote it at the dictation of the latter. The complainant's claim cannot be affected by it. And so, too, as to the endorsement made by Ramsey on the bond which the $3,000 mortgage was made to secure. It is a mere declaration or statement of Ramsey's by which the complainant is not bound, and which is not competent evidence against her.

There will be a decree that the defendants account for and pay over to the complainant the money collected by Ramsey and them upon the school district judgment, without interest thereon. It appears that Ramsey received only $67.05, and that was received on account of interest and was received in May, 1880, a few months before he died. Since his death the defendants have received $869.38 on account of the judgment. It will also be decreed that the defendants assign that judgment and the bond and mortgage (it appears that the mortgaged premises have been sold under foreclosure of the prior mortgage) and the trustee judgment to the complainant, the assignment of the school district judgment and the bond and mortgage to contain a statement of the fact that they are to be held by her as collateral security for the payment of the amount remaining due on the trustee judgment; or, if she prefers it, the assignment may be made to a

Gray v Gray.

new trustee to be appointed by this court. Under the circumstances, no costs will be awarded to the complainant.

PER CURIAM.

This decree unanimously affirmed for the reasons given by the chancellor in the foregoing opinion.

ALEXANDER GRAY, executor, appellant,

υ.

BENJAMIN GRAY et al., respondents.

Mr. C. T. Reed and Mr. A. V. Schenck, for appellant.

Mr. Woodbridge Strong, for respondents.

On appeal from a decree of the ordinary, whose opinion, delivered at the May Term, 1883, is as follows:

The orphans court of Middlesex county, by their decree of May 7th, 1883, removed Alexander Gray from his office of executor of the will of his late father, Alexander Gray, senior, deceased, and appointed an administrator de bonis non with the will annexed, in his place, and directed Gray to deliver over to the administrator all the property of the estate in his hands, and state and settle his account as executor. The grounds of this action on the part of the court were, that they were satisfied, from the proofs in the matter, that Gray had wasted and misapplied the estate, or some part thereof, and had abused the trust and confidence reposed in him as executor. The application was made by Jane Gray, widow of the testator, and Jane Gray the younger, and Isabella and Benjamin Gray, all of Middlesex county, children of the testator. From this decree the executor appealed. The evidence in the matter shows that

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