Citations
- 95 N.Y. 382
Full opinion text
Rapallo, J.
Wilhelmina B. Neilley, as administratrix of her mother, Sarah Byron, deceased, claims of the estate of her uncle Alexander Waldron, deceased (of which estate the claimant is also administratrix), a sum of money alleged to have been due from him to Sarah Byron in the year 1828. Alexander Waldron was the brother of Sarah Byron, and by the will of their father a certain legacy was directed to be paid by Alexander Waldron and others to Sarah Byr'on. On the 4th of November, 1828, Alexander Waldron gave to his sister, the said Sarah Byron, a written instrument in the following words: “ I hereby acknowledge to have in my possession and hold in trust for my sister Sally, the wife of George Byron, the sum of $268, being the balance due to her this day, for her proportion of $1,000 directed to be paid by my father in his last will and testament by my brothers Jacob, Tobias and myself to his daughters, for which sum I promise to pay my sister legal interest so long as the same- remains in my hands, and from time to time, as her necessities may require, advance to her a proportion of the principal moneys. It having been agreed between me and her husband, the said George Byron, that the' said moneys shall remain in my hands in trust for his wife and for her sole benefit.
Witness my hand this 4th day of November, 1828.
$268. ALEXANDER WALDRON.”
G-eorge Byron died about the year 1840 ; Sarah Byron died March 27, 1842. She left no property except household goods and the paper before described. Her daughter Wilhelmina (the claimant) was then about thirteen or fourteen years of age, and from that time until August, 1855, when she was married, she lived in the same house with her uncle Alexander Waldron.
She testified that she found the paper in question after her mother’s death in her mother’s trunk, in a pocket-book. It does not appear that she ever made any claim, by reason of the paper, against her uncle, although he lived some thirty-five years after the death of Mrs. Byron, during about thirteen years of which time, viz.: until her marriage in 1855, the claimant resided in the same, house with him, and during more than six years of which time she was of age and unmarried, as appears from her testimony, in which she states that she was fifty-one years of age in January, 1879. Sarah Byron had also lived fourteen years after the paper had been given to her, viz.: from 1828 to her death in 1842, during which time she resided in the family of her brother, the said Alexander Waldron. Apparently she was possessed of no property, and ample time had elapsed during which her necessities would naturally have required the consumption of the petty sum of $268, acknowledged to have been due to her in 1828.
Alexander Waldron died in 1877, and on the 9th of March in that year letters of administration on his estate were granted to the claimant Wilhelmina, jointly with her husband John H. Neil ley. Up to that time no administrator had ever been appointed of the estate of her mother, Sarah Byron, deceased, but on the 8th of August, 1878, the claimant took out letters of administration on the estate of said Sarah Byron, deceased, and thereafter on her accounting before the surrogate, as administratrix of Alexander Waldron, deceased, in 1878, she preferred the claim in question, against his estate, for $268, and' interest from November 4, 1828, amounting together to $1,209.37.
The surrogate disallowed the claim on the ground that was barred by the statute of limitations. The claimant a; pealed to the Supreme Court from this decision and it w^s there reversed. A majority of the court, the presiding justicie dissenting, held that the transaction disclosed by the writteh instrument of November 4, 1828, was a simple deposit anjl that the statute of limitations did not commence to run until ja demand for the money, and that there being no evidence Off such a demand the statute never commenced to run. j
The court thereupon, instead of directing the matter to bp reheard before the surrogate on the merits, rendered final judgment in favor of the claimant.and directed that the claim bp paid out of the estate,- with costs. j
The judgment of the Supreme Court is now sought to bb sustained, as well upon the ground taken in the opinion ajt General Term, as upon the further ground that the instrumenjt in question created an express trust, and that time does no|t bar a direct or express trust where the relation of trustee an