Civil action. On complaint.
The plaintiff, as executor under the last will and testament of Henry D. Wieand, deceased, seeks the construction of paragraph 2, sub-paragraph D of the last will and testament of the said Henry D. Wieand, in order to ascertain whether said paragraph discharges any and all debts due from and owing by Bessie M. Wieand, widow of decedent, and Franklin D. Wieand, Jr., brother of decedent, to the said testator at the time of his death.
In the event the determination of the above question is that the will does not discharge such debts, then the plaintiff further seeks a judgment on certain promissory notes made by Bessie M. Wieand and Franklin D. Wieand, Jr., to the value of the alleged collateral security therefor, and a determination of the title to various securities appearing in an account of Bioren & Co. in the names of the said Bessie M. Wieand or Franklin D. Wieand, Jr., or in the names of Franklin D. Wieand, Jr. or the deceased.
The defendant Franklin D. Wieand, Jr., sets up by way of defense in his answer that (1) the alleged promissory notes are barred by the statute of limitations; (2) release by the decedent; (3) the transactions involving the stock or other securities were purchased for him by the decedent as an outright gift, and (4) the letters issued to plaintiff were fraudulently obtained. At the time of trial, however, said Franklin D. Wieand, Jr., advised through counsel that he did not desire to participate further in the proceedings.
Bessie M. Wieand sets up by way of defense (1) a denial that she ever owed the decedent any sum of money; (2) that there was no consideration for her promissory note, and (3) the securities carried on the books of Bioren & Co. in her name were a gift to her, subject to the repayment to Bioren & Co. of the amount due said Bioren & Co. for the purchase thereof.
At the time of trial, J. Raymond Leek, the executor, was sworn as a witness and testified that he had found certain promissory notes among the assets of the decedent, said notes being made by Franklin D. Wieand, Jr., payable to the order of Henry D. Wieand. He testified as well that he had discovered among the assets of the decedent two certain promissory notes each in the sum of $891,275, payable to decedent and signed by Bessie M. Wieand. The executor testified that he was familiar with the signatures of Franklin D. Wieand, Jr. and Bessie M. Wieand and that the signatures appended to the said promissory notes were their respective signatures; that he had made a demand for payment of the several notes and such payment had been refused. The executor further offered two certain letters from Bessie M. Wieand, which read as follows:
This is your authority to transfer to Mr. Henry D. Wieand, all dividends and interest received by you for my account.