NEW YORK WEEKLY DIGEST. VOL. 2.] JUDGMENT. MONDAY MARCH 20, 1876. [No. 6. FOREIGN ATTACHMENT. JURISDICTION. SUPREME COURT OF PENNSYLVANIA. preme Court of New York, setting forth that they were creditors of the Thompson Oil Company to a large amount, and attached the debt due by Snow, Burgess, Wood and Wright to the latter company. Noble et al. v. The Thompson Oil Co. The defendants had been brought into the to the use, &c. Decided January 6, 1876. Suprem Court of New York by a writ served up. one of them in 1866 while passing through that State. On November 18, 1868, the judgment obtained by the Thompson Oil Company was affirmed by the Supreme Court of Pennsylvania, An assignment of a judgment of a Court of the State of Pennsylvania between parties resident, for value, is not merely a statutory transfer of it, but a sale, valid everywhere; and after whereupon Messrs Brown, Walker and such assignment, the assignor has no others commenced an action of debt on attachable interest in it. the recognizance of bal, suing in the That a foreign attachment issued out o a Court of another State, and the the use of Brown, Walker et al. against name of the Thompson Oil Company to garnishee under its judgment has actually paid the money to an at- Noble, Lamb and the other principals and taching creditor, does not discharge sureties upon the bail bond, to recover the the garnishee, if it appear that the amount of the judgment. Court has no jurisdiction over the subject matter, and that the garnishee might, under the law of such State, have protected himself, but neglected to do so. In such a case article 4, The narr. alleged that upon November section 1, of the Federal Constituti- 27, 1867, the judgment had been assigned on, providing that full faith and to the equitable plaintiffs, a part to Brown credit shall be given in each State for a subsisting indebtedness, and the to the judicial proceedings of every balance to the others (in the proportions other State, is not applicable. herein before mentioned) for professional services. The Thompson Oil Company and the equitable plaintiffs were all citizens and residents of Pennsylvania. The defendants pleaded substantially as follows: That before the commence Error to the Common Pleas of Erie Co. The Thompson Oil Company on September 25, 1867, obtained a judgment for $26,723.50 against Snow, Burgess, Wright and Wood in the Common Pleas of Erie ment of the present suit, to-wit, on January County. The defendants thereupon filed 25, 1863, the "Woods & Wright Oil Creek a recognizance of bail in error, in which Company, a corporation of the State of Noble, Lamb, Snow and others were sure. New York, claiming to be creditors of the ties, and took a writ of error to th- Su-hompson Oil Company, caused to be preme Court. From the pleadings the following facts appeared: On November 27, 1867, the Thompson Oil Company assigned to Conrad Brown (then living, but since deceased), $23,273.50 of the judgment for his own use, and the remaining $3,000 thereof, by a separate instrument, to Walker and others. On January 25, 1868, a New York Cor. poration, called the Woods & Wright Oil Creek Company, filed a petition in the Su issued from the Supreme Court of New York a writ of foreign attachment, having first duly given security, &c., and that the attachment was duly served upon the present de endants, then residents of New York, whereby the debt they owed the Thompson Oil Company was duly attached by the laws and practice of New York, for the benefit of the attaching creditors; that process was duly served upon the Thompson Oil Company by the laws and practice aforesaid, by advertise ground that the assignment, although prior in time to the attachment, was no bar thereto; this report was confirmed by the Court, who thereupon gave judg ment against the defendants in the sum of $30,344.11, including interest and costs, and notice of this judgment was given to the equitable plaintiffs: That no exceptions to this report were filed by the equitable plaintiffs, nor appeal nor writ of did afterwards pay the amount of the judgment, and thereby satisfied the claim in the present suit. Conclusion that the de'endants were ready to verify by the said record and prayed judgment, &c. ment, and by sending a copy of the writ by mail to the office of the Company at Erie, Pa., and that defendants gave further notice of the attachment by serving a notice personally upon the president at Erie upon February 1, 1868; that the attachment suit was proceeded with and upon September 24, 1868, judgment was obtained against the Thompson Oil Company in the sum of $56,000, and thereby the plaintiffs acquired a lien upon the of error taken, wherefore the defendants claim of the Thompson Oil Company as of the date of the service of the attachment (viz January 25, 1868), and upon October 13, 1868, levied execution upon its debt; that when the defendants gave notice to the Thompson Oil Company of The plaintiffs moved for oyer of the the attachment, they had no notice of the record of the suit in New York, which assignment of the debt in the present suit, motion the Court below granted. The but soon afterwards, viz. upon February record was then produced in full, without 23, 18CS, received notice thereof, and gave any objection (of record) by the defendnotice to the assignees (the equitable ants. This record contained, inter alia, plaintiffs) to use their name in any appli- the warrant (or writ) of attachment, upon cation to the Supreme Court of New which the sheriff had, after its service, York, or any other Court, for the purpose of protecting their debt, &c., and the defendants did refuse to pay the judgment in the attachment suit, alleging that it had been assigned as set forth in the narr. Whereupon the Supreme Court, in accordance with the law of New York, did upon December 18, 1868, appoint a receiver of the amount of the alleged indebtedness of of defendants to the Thompson Oil Com pany. endorsed "the within attachment super- ment. Further, that upon the receiver giving The record further showed that the security, proceedings were instituted to question of the indebtedness of the dedetermine the question whether the gar- fendants in the attachment was referred nishees were entitled to protection against to a referee, no one appearing to oppose the payment of the said indebtedness to it, and that no one appeared before the the receiver for the Woods & Wright referee except the plaintiffs in the attachCompany, by reason of the alleged assign ment; that upon October 17, 1868, an ment of the judgment to the present execution issued against the defendants equitable plaintiff's; which question was, in the attachment, and was returned in accordance with the practice of the "No personal or real property;" that New York Court, referred to a referee, afterwards, upon the affidavit of Snow, to who reported in favor of the defendants the effect that the judgment was said to as to the fact of the assignment, but be assigned by the Thompson Oil Comagainst them on matter of law, upon the pany to persons whose names he did not remember, the Court appointed William judgment which they purchased, were M. Tweed, Jr., receiver, who, after filing within the State of New York. The a complaint, ordered the defendants to Court then had no jurisdiction of the per answer, which they did, averring on in- sons or property of the defendants in formation and belief that the assignment error. of the judgment was made before the attachment, &c. The record then showed that the attorneys for the parties had agreed in writing to refer the question of the assignment to a referee, which was done, and judgment given upon the filing of his report. We give full effect to the Constitution of the United States and to the law of Congress enforcing the same; we assent to the conclusiveness of the judgment of a Court of a sister State when that Court has jurisdiction; yet we cannot concede that a person resident within this State, shall involuntarily and by such a pro The judgment was marked satisfied and owning property situated therein, June 12, 1873. The plaintiff then demurred to the ceeding be constructively brought within plea. The Court below (Vincent, P. J.), after argument, gave judgment on the demurrer for the plaintiffs, to which the defendants took this writ of error. Held, 1. The Thompson Oil Company was a corporation formed under the laws of this Commonwealth and doing business therein. The assignees were citizens and residents of Pennsylvania. The judgment assigned was of record in a Court of this State. When the assignment was made, the assignor, the assignees, and the property assigned, were all within this Commonwealth and governed by its laws It was not a statutory transfer of the judg ment, but a voluntary sale and assignment of it. It was then beyond all doubt a valid transfer here. Being a valid assignment when and where made, it is valid everywhere. the jurisdiction of the Court of another WILL. TESTATOR UNABLE TO PROOF ON PROBATE Decided January 18, 1876. That the foreign attachment was served on the garnishees before they had notice of the assignment does not postpone the claim of the assignees to that of the at-large wealth, illiterate, not being able to taching creditors. The decedent in 1871 was a man of read or write save to sign his name, and a 2. We have already shown that the widower about 64 years of age, paralytic judgment as well as the parties to the as- so as to talk and speak with difficulty, signment were within this State at the and very infirm, was married to his housetime of the transaction. They so contin- keeper. He had then living three sons ued at the time of the iscuing of the writ and grandchildren, children of a deceased of foreign attachment, and during the daughter with whom his relations had alpendency of all the proceedings thereon. ways been friendly. His marriage was at Neither the defendants in error, nor the the time unknown to the family and but one mentioned in the former will and by substituting Mrs. R.'s brother in place of the old agent as executor. After drafting the will the attorney again went to the house and there found the other witnesses, the wife, mother-in-law and wife's brother, that the decedent went through the form of executing it, making the publication and the request to witnesses by an unintelligible sound and nodding his head, the other witnesses were requested by Mrs. R. to act as such none of the witnesses were witnesses to any of the prior wills. By the will in question he gave to his wife his dwelling-house in fee with furniture, and one-third of all his personal property and one-third of the net one witness was present. After his marriage decedent's infirmities increased, and during the year 1872 but few of his friends could understand anything he said. In April, 1873, his agent, who had long been in his employ, and had charge of all his real estate, was discharged and a brother of his wife, a man of not much business capacity, put in his place, and he with the wife's mother became members of decedent's family. He had then become and thereafter remained substantially helpless and speechless. His wife was his constant attendant and with her brother transacted all his business, and her wishes controlled. Many of his old friends as witnesses testified that he could not make an intelligible sound, but that his wife as-rents and income of his real estate. His suming in some way to understand him, real estate was not to be disposed of or diby listening and looking at his lips would vided until after the death of his wife and state what she claimed he expressed to until his youngest grandchild then living to her. Other witnesses testified they should arrive at the age of twenty-one. could understand him, but with great The wife's brother was alone to have the difficulty. While in this condition, in leasing, collecting rents, &c., of his real June, 1873, he executed the will in ques-estate, estimated to be worth from $600,tion, prior to that time he had repeatedly 000 to $800,000, with a commission of declared that he would give all his three per cent. on the gross amount for erty to his sons and the children of his his services. Another brother of Mrs. R. deceased daughter. Two or three wills was also made executor. In September, had previously been executed, all drawn 1873, the codicils were executed under by an attorney, who had been his atto:- similar circumstances by the same attorney and counsel for thirty years. Soon ney, Mrs. R. directing in regard thereto, after his last marriage a will was drawn this gave to her four houses in addition to by another lawyer, the contents of which the provision in the will, and provided were not known, save that his wife was that any child he might have by her a beneficiary, and his old agent one of the should share equally with the other children. executors. The will in question was It does not appear that any of his childrawn by a lawyer who had never before been employed or consulted by decedent. dren knew anything of the execution of He came at the request of the wife's the will and codicils. A little over a month brother. He found Mrs. R. wth decedent. after the execution of the codicils deHe attempted to talk with decedent, but cedent died. None of the children were found him entirely speechless an unable present at decedent's death, Mrs. R. to u ter an intelligible sound, Mrs. R. knowing he was dying refused to send for stated what she said decedent wanted, i. e. to change his then last will. She stating the changes desired, which were to give her the use of a new house lately Henry L. Clinton and Geo. T. Langpurchased, in place of the use for lifeof bien, for respts. prop them. Wm. H. Arnoux and Wm. A. Beach, for applt. Held, That satisfactory evidence was not given that the testator fully understood the provisions of the will and codicils and assented thereto, that from his impaired capacity and the circumstances attending the transaction the usual inference could not be drawn from the nonformal execution; but that assuming the mind of the testator accompanied the acts, probate was properly refused on account of undue influence. This action was on a policy of insurance for $6,000 on the life of one V. V. was solicited by one W., the medical examiner of defendant to insure his life. W. having at the time no forms for an application, examined V. as to his physical constitution, and was authorized by V. on his return home to prepare an application for V. on the proper forms and send to the company, &c., and sign his, V.'s name, to such application. This was done and the policy was issued. On the trial defendant's counsel in A party who offers an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, sisted, and upon this question he has the burden. 1. That the application, not being signof proof. If he fails to satisfy the Courted by the assured, there was no mutual that the instrument speaks the language and contains the will of the testator probate must be refused. consent. 2. That the application and certificates. on application sent defendant amounted to representations that the signature, of V. was genuine, and that tne falsity of the representation avoided the policy. When the will of one who is deaf and dumb or unable to read or write and speak is presented for probate there must be not only proof of the factum of the will, but 3. That the statement of the fact in also that the mind of the testator accom- the application to defendant that no panied the act, and that the instrument other application had ever been made to executed speaks his language, and really any other company, was false und avoided expresses his will, and that he was cogni- the policy. zant of its provisions. 2 Bradf., 42. Judgment of General Term affirming judgment entered upon decree of Surrogate, affirmed. Opinion by Earl, J. LIFE INSURANCE APPLICATION. N. Y. SUPREME COURT, GENERAL TERM, Stelwagen, respt. v. The Merchants It is not necessary that an applicant Not stating in the application that the assured had applied to another company for insurance does not vitiate the policy. 4. That the suppression upon the application to defendant of the facts that had transpired on the application to the other company, avoided the policy. It was proved that V. had, prior to his application to defendant, applied to the agent of another company for insurance, and that he had been examined by two physicians, and that the physicians had refused to certify on the application that he ought to be taken by such other company on the ground that he had the heart. disease, and the application was not sent forward to the company. There was a verdict for the plaintiff. Held, That the execution and signing of the application to defendant by W. under authority from V., was sufficient in law and the application was good. Even if it could be said that there was a representation that V. signed the application, the fact being found that he duly au |