US SUPREME COURT DECISIONS

A testator, after giving the bulk of his property to his six brothers and sisters in equal shares, directed that

"any and all notes, bills, accounts, agreements, or other evidences of indebtedness against any of my said brothers and sisters held by me at the time of my decease be cancelled by my said executors and delivered up to the maker or makers thereof without payment of the same or any part thereof"

except two notes specified, and secured by mortgage. Held that this direction did not include joint and several notes made to the testator, between the date of the will and his death, by a partnership of which a brother was a member, to obtain money to carry on the business of the partnership and secured by a conveyance of valuable property.

This was a bill in equity by Robert W. Waterman, a citizen of California, against Philander M. Alden and George S. Robinson, citizens of Illinois, and executors of James S. chanrobles.com-red

Page 143 U. S. 197

Waterman, to recover back certain sums of money alleged to have been paid by mistake.

James S. Waterman, for twenty years before his death, lived and did business as a banker in Sycamore, Illinois. He died on July 19, 1883, without children or descendants, and leaving an estate amply sufficient, without the sums claimed in this suit, to pay all debts, legacies, and costs of administration.

By his last will, dated November 28, 1870, and admitted to probate September 18, 1883, he gave to his wife one-third of all his estate, real and personal; to other persons, certain specific legacies of comparatively small amount, and all the residue of his estate, real and personal, to trustees, in trust to pay the annual income for a term of twenty-one years to his six brothers and sisters (of whom the plaintiff was one), and at the end of that time to divide the principal in equal shares among them, and the issue of anyone deceased, and further provided as follows:

"7th. I desire and direct that any and all notes, bills, accounts, agreements, or other evidences of indebtedness against any of my said brothers and sisters, held by me at the time of my decease, be cancelled by my said executors and delivered up to the maker or makers thereof without payment of the same or any part thereof, except two notes I hold against John C. Waterman, one for eight thousand dollars, dated August 10, 1870, and due January 1, 1871, and one for four thousand and six hundred dollars, dated November 28, 1870, and due six months after date, and both secured by trust deed upon lands in Johnson County, State of Missouri, which notes I desire and direct to be collected and equally divided between my said brothers and sisters, the child or children of a deceased brother or sister to take the same share the father or mother would have taken if living."

In accordance with the seventh clause of the will, the defendants delivered up to the plaintiff individual notes of his for from $12,000 to $15,000, and to John C. Waterman, another brother, his unsecured notes for about $30,000.

The real question in the case is whether that clause of the chanrobles.com-red

Page 143 U. S. 198

will applies to notes given by the plaintiff and another person to the testator under the following circumstances:

In 1881, the plaintiff, residing in San Bernardino, California, formed a mining partnership with one Porter, under the name of Waterman & Porter, in which the plaintiff's interest was three-fourths and Porter's one-fourth. On May 14, 1881, the plaintiff signed and gave to the testator, as security for the payment of any advances that he might make to the partnership, an agreement in writing to execute to him, within twelve months from date, on demand, a conveyance of twenty-four undivided hundredths of mining property in California, the estimated value of which at that time was, as the plaintiff testified, $1,000,000. The testator advanced to the partnership, for the development and working of the mines, between $25,000 and $30,000, part of which was repaid in his lifetime. At his death, he held five notes of the partnership, which may be assumed to have been several as well as joint, signed by the partnership name, amounting in all to $10,000, dated in the latter part of 1881, and payable in February or March, 1882, with interest at the rate of eight percent annually. The partnership afterwards sent to the defendants, and payment of these notes, with interest, and of other debts of the partnership to the testator, drafts of a bank in San Francisco upon a bank in Chicago for $11,949.51, bought by the partnership, Porter contributing his share, and the defendants thereupon cancelled and returned these notes.

The plaintiff demanded of the defendants repayment of these sums, as having been paid in ignorance of the terms of the will, and under mistake of law and of fact. The defendants refused, because they were advised by counsel that by the will, the only notes or evidences or indebtedness against the testator's brothers which were to be cancelled and delivered up were simply personal debts.

This bill in equity was thereupon filed, and, after a hearing before the Chief Justice on pleadings and proofs, was dismissed, and the plaintiff appealed to this Court. chanrobles.com-red

Page 143 U. S. 200