Toner v. Taggart ( 1813 )

Tilghman C. J.

after minutely stating the facts, and the writing found after Toner’s death, delivered his opinion as follows:

It has been contended by the counsel for the appellant, (the decree having been entered in the Orphan’s Court by-consent, in order to bring the case before this Court) that this writing was no more than an inchoate act, which was never completed. That Toner by keeping it secretly in his own hands, shewed his intent that it should have no effect ” during his life, and that as a will it could not operate, having nothing about it of a testamentary nature. On the other hand, the counsel for the appellee argued, that it might take effect either as a will, or as an appropriation of so much money of Toner in the hands of Taggart, or as an evidence of a debt due from Toner to Taggart. It does not appear to be of a testamentary nature, nor if it were, can we establish it as such in this collateral way. Every kind of will must be proved before the register, although in case of dispute it may be brought into this Court by appeal. If effect can be given to this writing, it is our duty to give it, for it certainly was the intention of the intestate to do something considerable for Taggart or his family. It is confessed that if Toner ever alluded to that paper as an act done in favour of Taggart, it would be sufficient for its establishment. Now it is clear to me that he did allude to it, when he told Mr. Potts that Taggart should be secured, whether or not. This declaration must probably have been made shortly after the date of the writing. It is objected that a should be secured” must have reference to a future act. But I think nothing of that objection; it is founded on a grammatical criticism, which is easily obviated, by reflecting that Toner might not have been an accurate grammarian, or that Mr. Potts might not have recollected the precise expressions made use of. The writing is exactly what such a person as Toner might have supposed to be a sufficient security, in case, of his death without a will. It is material that Toner never drew his money out of Taggart’s hands, persevering to his death, in his purpose of appropriating 8000 dollars to Taggart’s use. No doubt the paper remained in his power, and if he had made a will, it is probable that he would have cancelled it. But not having made a will, and the writing remaining in existence, it serves to answer the very purpose intended. But it is objected, that so far from being in Taggart’s debt, Toner was his creditor to a great amount at the date of the writing. He certainly was so, as far as we have any certain evidence by books and papers. But there may have been secret transactions unknown to us. It has nof been made to appear in what manner Toner acquired thq considerable sums deposited in bank soon after he opened his store. Conjectures have been made, but they are only conjectures. The matter has not been accounted for. It is involved in something of mystery. Why then, when the man has said, that he was indebted, and when he undoubtedly intended to throw at least 8000 dollars into the family of Taggart, shall we take pains to defeat his intention, because we cannot discover how the debt was contracted. No evidence is so strong as a man’s own confession, and I am content to take the fact as Toner has stated it. I take no particular notice of the cases cited on the argument, because it is a matter of intention to be inferred from all the circumstances of each case. Enough appears to satisfy me that the intestate kept this paper by him with a view of securing to Taggart 8000 dollars, and therefore I am of opinion, that the decree of the Orphan’s Court should be affirmed.

Yeates J. was prevented by sickness from giving any opinion.

Brackenridge J.

The placing the amount of 10,000 dollars and upwards in the banks of this city, without any visible funds from whence that could come, induces the suspicion that it must have been detracted occasionally from the money of the master, so as not to be missed. The master, Taggart, would seem from the testimony to have entrusted him with the handling of his cash. It could not reasonably be supposed to have* been from private speculation, or from his wages saved for five years. One thousand dollars and upwards for wages is charged in the book of Toner to himself, as received after this deposit in the banks. This embezzlement was probably with the original intention of replacing the money as soon as he should be able; and under this idea, without supposing him ultimately to have intended a fraud, he might have reconciled it to his conscience. In pursuance of this intention, and having been fortunate in business, in less than five years, he actually places in the hands of Taggart, the master, through the medium of his clerks, and had entry in his books to the amount of 10,000 dollars, for which he would take no receipt, whereas with regard to other credits for monies in those books he took receipts. I would take the 8000 to be the sum originally embezzled, and this, with the. addition of one-fourth, according to the law of Moses, in the case of restitution, to have accounted for the "placing the 10,000 dollars; two thousand the one fourth of eight thousand. It would seem to have been a struggle in his mind how to get the restitution accomplished, without avowing the original breach of trust, which he had not resolution to do, and which he may have thought was not necessary to be done, provided the same justice was rendered, and the original replaced with what would, at least, cover the interest. It is evident that he sometimes thought of a devise to Taggart, or some of his children, and it is probable that the coming of his brother from Ireland, and the dulcís moriens reminiscitur Argos, the idea of urikindness in giving so much to a rich man, and neglecting pro tanto his poor kindred, was in his way. But for this all might have been set right by a will. But it would seem to relieve from this, to acknowledge himself to have been indebted originally in the sum taken, the 8000 dollars. This was done by the memorandum left behind him, and may be considered as a credit in the way he intended it, as a set off against the claim which his relations might advance to the surplus in the hands of Taggart as a trustee for the use of Toner. The document would rebut the idea of a trust, so far at least as the sum of eight thousand dollars.

The mipd of Toner would seem to have occasionally vibrated on the ways and means by which he might conceal his shame, and satisfy his conscience, fie had spoken of a devise under the idea of a sense of gratitude for assistance in setting up and carrying on business; this possibly the better to hide the real consideration. He was advised by a witness (Potts) to make a will; and he had been speaking of making a will in favour of Taggart, under this consideration of gratitude. The expression in the reply of Toner is remarkable: “ Mr. Taggart and his family should be secured whether or not.” This was in the summer of 1805; and the securing must have had a reference to the money which he had placed on the books of Taggart, taking no voucher, or to that instrument which he had in view to leave, and did leave behind him. Either of these, or both, would seem in his opinion to secure Taggart. I need not say whether this paper could be proved as a testamentary paper, but it must come through that medium before it could be acted on as a gift'by devise. But as giving it an operation by way of credit, I can have no difficulty. I could by no means reconcile it to myself to consider it otherwise. I am of opinion therefore that the sum of 8000 dollars be placed to the eredit of Taggart the administrator in this case.

Decree confirmed.