Corley v. Hennessy

NOURSE, P. J. Plaintiff sued to recover upon a claim for money alleged to have been held in trust for him by the decedent Edward J. Kenney. The trial court gave defendant judgment based upon findings that there was nothing due plaintiff, that no funds were held by the decedent in trust for plaintiff, that decedent did not mingle with his own any moneys belonging to plaintiff, and that the cause of action was barred by the statute of limitations. In his appeal from the judgment plaintiff states three grounds—(1) that the fact that the moneys sued for were acquired through illegal gambling and taking wagers on horse races should not affect his right of recovery; (2) that the statutes of limitations did not begin to run until the death of decedent, because there had been no repudiation of the alleged trust; (3) that the trial court erred in refusing to permit plaintiff to testify except as to the matter of the alleged trust.

The complaint pleads a simple cause of action for money due the claimant in some respects in the nature of an oral stated account, and prays that the sum found to be due “be paid by said executor in the due course of the administration. ...” It also pleads that the sum claimed had been received and “held in trust” by the decedent, but that said sum “cannot be specifically identified for the reason that the said funds have been, and were prior to the death of said decedent, and are now, mingled with the funds of said decedent. ” None of the • circumstances of the creation of the alleged trust is pleaded, and no proof was made that any of the money claimed by appellant was mingled with other funds of the decedent. During the course of the trial the court offered appellant leave to amend his complaint to plead a trust more clearly, but no amendment was made, and his counsel conceded that he was unable to trace the money or show that it had been mingled with other funds.

[885]A brief statement of the facts will suffice, as our decision must rest not so much upon the facts proved but upon the facts which plaintiff failed to prove to make a case for relief. For some years prior to 1917 plaintiff and deceased had been employed by “bookmaking” concerns, and in that year opened a place of their own where they continued the same operations. The sister of the plaintiff testified that the two were partners, other testimony was given that plaintiff was employed by deceased until 1923 when plaintiff was required to leave the neighborhood because of fear of arrest. The sister of plaintiff testified that in 1923 he stopped working because of ill health, that deceased then had $25,000 in a safe deposit box belonging to the “partnership,” that he promised to keep one-half of that sum in trust for plaintiff. From that date until his death in 1941 the deceased paid small sums either to plaintiff or to his sister amounting to over $8,000. The sister testified that these payments were in partial performance of the “trust.” Other testimony was given that they were of a charitable nature advanced to relieve the poverty of plaintiff and his sister. The testimony of the sister relating to the fact of partnership, the amount of cash deposited by deceased, and the amount and nature of payments advanced by deceased, was such that the trial court must have found it unconvincing and short of the measure of proof necessary to establish a trust of this character.