Ulster County NyArchives Court.....Bruyn, Elizabeth V. Benjamin Russell & James Keeler 1889
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Source: Reports Of Cases - Ny
Written: 1889

ELIZABETH R. BRUYN, Respondent, v. BENJAMIN RUSSELL and JAMES B. KEELER, as 
Executors of JACOB DE WITT, Deceased, Appellants.

Presumption of consideration in the words, in a note, "for value received"—none 
in favor of a party who attempts and fails to prove an actual consideration—
conversation between the plaintiff and one of the executors of the maker of the 
note—comparisons of handwriting.

In an action, brought upon a promissory note for $5,000, purporting to have been 
given to the plaintiff by the defendants' testator, the defenses were forgery 
and a want of consideration. Upon the trial the plaintiff produced the 
promissory note which contained the words "for value received," and, 
anticipating the attack by the defendants upon the consideration, attempted to 
establish it affirmatively by showing that the testator gave her the note 
because of a promise of marriage existing between her and the testator, and 
because he desired to reward the life-long acts of kindness which the plaintiff 
had bestowed upon him and the members of his household.

Held, that if the plaintiff had rested her case upon the presumption of 
consideration, which the note itself imported, the burden would have been cast 
upon the defendants to overcome that presumption by their evidence.

That when the plaintiff attempted to establish the consideration affirmatively, 
and the testimony of the plaintiff very plainly excluded the idea that any other 
consideration, except that shown by her, existed, the presumption of a valid 
consideration was no longer of any avail to her.

That, if it should be found that such consideration attempted to be shown had 
not sufficient legal validity to uphold the note, the words "for value received" 
could not be invoked to supply legal validity to a consideration otherwise 
ascertained to be invalid.

Upon the trial the plaintiff was allowed, against the objection and exception of 
the defendants, to testify that after the death of the testator she had a 
conversation with one of the defendants, an executor of the testator, in which 
she narrated to him the conversation between herself and the testator at the 
time he gave her the note, which embraced the alleged declarations of the 
testator to the plaintiff respecting her personal acts of kindness to him, the 
existing promise of marriage between them, and his desire to secure her a 
portion of his estate.

Held, that the court erred in admitting the evidence.

That as this testimony was not evidence that any such conversation took place 
between the plaintiff and the testator, but was only evidence of the 
conversation between her and the defendant; although the court instructed the 
jury thus to regard and limit it, yet the verdict might have been influenced by 
her testimony, as to statements narrated to the defendant, without any evidence 
that the statements narrated were, in fact, true. 

It was claimed that the defendant, one of the executors, admitted her narrative 
to be true.

Held, that as he had no personal knowledge of its truth, his admission could 
contribute no corroboration of it, and that one executor could not, by his 
admission, bind his co-executor.

It seems that an admission by executors to bind their estate must be part of the 
res gestoe of its actual settlement by the executors, and partake somewhat of 
the character of an estoppel.

The defendants offered to show, by expert testimony, that the note in question 
and a letter, admitted by the plaintiff to be in her handwriting, were both in 
the same handwriting.

Held, that, convincing as such evidence might be in certain cases, it was not 
admissible, as a comparison of handwriting is only admissible between the 
disputed writing in question and the genuine handwriting of the person 
purporting to be the writer of the disputed writing.

The defendants objected to the testimony of a witness who had frequently seen 
the testator write, and admitted that he had examined other signatures 
purporting to be those of the testator, which the witness had not seen him write 
and which were not produced upon the trial, who testified that he based his 
opinion principally upon the last-mentioned comparison.

Held, that as his testimony was not exclusively based upon such last-mentioned 
comparison, it was properly received.

Appeal from a judgment in favor of the plaintiff entered, upon the verdict of a 
jury rendered at the Ulster County Circuit, in the office of the clerk of the 
county of Ulster on May 25, 1887; and, also, from an order entered on a motion 
made upon the minutes of the justice presiding at the trial for a new trial and 
to set aside the verdict, dated April 23, 1886; and, also, from an order made at 
a Special Term in the city of Troy on June 6, 1887, refusing to set aside the 
verdict upon an affidavit alleging coercion. The appeal from the latter order 
was not urged upon the argument.

The action was brought upon a promissory note for $5,000, purporting to have 
been given to the plaintiff by the defendants' testator. The defenses were 
forgery and a want of consideration.

E. Countryman, for the appellants.

A. T. Clearwater, for the respondent.

Landon, J.:

The plaintiff produced the promissory note; it contains the words "for value 
received." In the absence of any further testimony the presumption existed that 
the note was given upon sufficient consideration. (Raubitschek v. Blank, 80 N. 
Y., 478 ; Underhill v. Phillip, 10 Hun, 591; Foote v. Valentine, 48 id., 475.) 
This presumption would prevail until overcome by evidence sufficient to convince 
the jury that no valid consideration existed. If the plaintiff had rested her 
case upon the presumption of consideration which the note itself imports, then 
the burden would have been cast upon the defendants to overcome by their 
evidence that presumption, and, of course, if they could not do what it was 
incumbent upon them to do, the presumption would not be overcome, and its force 
would remain unbroken. But at the outset of the trial, the plaintiff, 
anticipating the attack by the defendants upon the consideration, attempted to 
establish it affirmatively. She undertook to show that the testator gave her the 
note, because a promise of marriage existed between them, and because he desired 
to recognize and reward the life-long acts of kindness which the plaintiff had 
bestowed upon him and the members of his household. The testator was a bachelor. 
The testimony of the plaintiff very plainly, and, perhaps, expressly excluded 
the idea that any other consideration existed. Such being the case, the 
presumption of a valid consideration which the note, unexplained, imported, was 
no longer of any avail to the plaintiff. If she failed to establish the actual 
consideration she asserted, she could not ask to recover, because the defendants 
had not affirmatively overcome the presumption of consideration which the note 
itself imported; or, if establishing the particular consideration which she 
asserted, it should be found that such consideration had not sufficient legal 
validity to uphold the note, the words "for value received," in the note, could 
not be invoked to supply legal validity to a consideration otherwise ascertained 
to be invalid. The true consideration may be inquired into. It is presumed to be 
good until it is shown what it is, but when this is shown, whether by one party 
or the other, its true character is ascertained. If the good name under which 
the true consideration was disguised in the note itself could now, in the least 
degree, improve its real character, the inquiry would have been in vain; the 
disguise would still deceive.

The object of the inquiry is to strip it off and disclose the real truth. Upon 
the evidence adduced we do not know whether the note was given upon the 
consideration suggested, but we do know that such a consideration, and no other, 
was attempted to be proved. We think, therefore, that when the learned trial 
judge instructed the jury that, in determining whether the note was given upon a 
valid consideration, they should consider that the note itself imported a 
consideration, and that the onus was upon the defendants to assail it, and that, 
aside from the consideration imported by the note itself, there were the facts 
and circumstances tending to show what the real consideration was, he left the 
jury to infer that the facts and circumstances strengthened the presumption of 
consideration which the note imported instead of displacing that presumption or 
weakening it, and thus prejudiced the case of the defendants.

Whether, if a valid promise of marriage existed between the parties, that would 
imply a sufficient consideration, without respect to the question whether the 
one promise was the consideration or inducement of the other, counsel did not 
deem it necessary to consider. Nor was the question discussed by counsel whether 
a promise to pay, made in consideration of a promise of marriage, which failed 
because of the death of one of the parties before the time appointed for the 
marriage, would present a case of failure of consideration. We, therefore, pass 
these questions to consider the admissibility of certain testimony which the 
plaintiff was permitted to give. She testified, notwithstanding the objection of 
the defendants, that after the death of the testator she had a conversation with 
one of the defendants, in which she narrated to him the conversation between 
herself and the testator at the time he gave her the note. She thus, under the 
form of giving her conversation with the defendant, gave to the jury her alleged 
conversation with the testator. The latter conversation embraced the alleged 
declarations of the testator to the plaintiff respecting her personal acts of 
kindness to him, the existing promise of marriage between them, and his desire 
to secure to her a portion of his estate. The trial judge correctly said that 
this was not evidence that any such conversation took place between the 
plaintiff and the testator, but was only evidence of the conversation between 
her and the defendant, and he instructed the jury thus to regard and limit it. 
But it was the only explicit evidence of any engagement of marriage between the 
plaintiff and the testator, and it is not easy to believe, in view of the 
verdict, that it was not the most influential in producing it. If so, then the 
verdict rests upon her testimony of statements narrated to the defendant, 
without testimony that the statements narrated were true. It is claimed that the 
defendant, one of the executors, admitted her narrative to be true; but, 
confessedly, he had no personal knowledge of its truth, and his admission could, 
therefore, contribute no corroboration of it.

Here are two executors. One executor cannot, by his admission, bind his co-
executor. (Finnern v. Hinz, 38 Hun, 465, and cases cited; Potter v. Greene, 20 
N. Y. St. Rep., 410.) A sole executor cannot bind the estate by his admission to 
a third party having no interest. (Church v. Howard, 79 N. Y., 415.) We infer 
from the cases that an admission by executors to bind their estate must be part 
of the res gestoe of its actual settlement by them, and partake somewhat of the 
character of estoppel. They are to settle the estate of their testator as the 
testator left it. They should not by listening, without dissent or with 
approval, to the interested assertions of claimants, overreach the acts of the 
testator himself and give to them a character which, but for their complaisance, 
could never be fixed upon them. But, within the cases cited, the testimony was 
not competent. For this error the judgment must be reversed. 

We have examined the various assignments of error respecting the proof of the 
testator's handwriting and the genuineness of the signature to the note. There 
is a sort of false courtesy shown by the law to the pretenders to expert 
knowledge. Witnesses are criticised as failing to show themselves to be experts. 
They had, in some degree, the knowledge which an expert ought to have, and, in 
the present state of the law, we do not think the court erred in receiving their 
opinions. The defendants offered, by expert testimony, to show that the note in 
question and a letter admitted by the plaintiff to be in her handwriting were 
both in the same handwriting. Convincing as such evidence might be in certain 
cases, it does not seem to be admissible. Comparison of handwriting is only 
admissible between the disputed writing in question and the genuine handwriting 
of the person purporting to be the writer of the disputed writing. (Peck v. 
Gallaghan, 95 N. Y., 73.)

The defendants object to the testimony of a witness who had frequently seen the 
testator write, but who admitted that he had examined other signatures 
purporting to be the testator's, but which the witness had not seen him write, 
and which were not produced upon the trial. He testified that he based his 
opinion principally upon the last-mentioned comparison. As his testimony was not 
exclusively based upon such comparison, we do not think it could be stricken 
out. He had the meager qualifications which suffice to his competency, and he 
had acquired confidence and a firmer opinion by irregular methods. However much 
unreliable knowledge he had acquired, we do not think it disqualified him, in 
the absence of testimony that he based his opinion wholly upon it.

Judgment reversed, new trial granted, costs to abide the event.

Learned, P. J., concurred; Ingalls, J., takes no part.

Learned. P. J. (concurring in tne foregoing opinion):

I would add that an examination of the expert's testimony, and of the exhibits 
produced on the trial and shown on the argument, has given me a strong 
impression against the genuineness of the alleged signature of the deceased. In 
cases like the present we must always expect that the alleged signature will 
have a resemblance to genuine signatures, even if not genuine itself. The 
opinions of those who have seen the person write (whose alleged signature is in 
question) are little more than statements of such resemblance, unless based on a 
careful study of the habits of the person in respect to his handwriting, as 
shown in genuine specimens. How careful such a study may be is shown in 
Twistleton and Chabot, "Handwriting of Junius."

Judgment reversed, new trial granted, costs to abide event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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