The plaintiff herein seeks a judgment against the defendants under N.J.S. 3 A:24-44 and seeks to impress a lien on the premises described in the complaint to the extent of the money allegedly due him by virtue of N.J.S. 3 A:24-16.
The plaintiff alleges that he loaned Clara V. Schmidt the sum of $1,174.24 on or about October 9, 1947 for the purpose of making certain payments then due from her to
the Home Owners Loan Corporation on account of mortgage payments on premises owned by her and known as 1420 Madison Avenue, Venice Park, New Jersey.
Clara V. Schmidt died intestate on May 16, 1952, leaving as her sole surviving heirs and next of kin the defendants herein.
Defendants not only deny the transaction alleged by the plaintiff, but assert that in any event a memorandum upon which plaintiff's case is bottomed is testamentary in nature, and not having been executed with the solemnity required of wills (N.J.S. 3 A:3-2) is unenforceable.
At the time of the trial, objection was made by defendants, and sustained, to the proffer of oral testimony by the plaintiff concerning the alleged loan and conversations with the deceased, and similar objection was made, but overruled, to the introduction of the following memorandum, which was in the handwriting of and signed by the deceased Clara V. Schmidt:
"This is to certify that I, Clara V. Schmidt, paid the Home Owners Loan, 2 Park Avenue, New York City, the sum of $1174.24. Said sum was advanced by George Eisenhardt, 135 S. Florida Avenue, Atlantic City, N.J.
In case of my death, the sum of $1174.24, plus 6% interest from October 9th, 1947, is to be paid to George Eisenhardt out of the property sale of 1420 Madison Avenue, Venice Park, N.J. on which he paid the money."
These objections were founded upon N.J.S. 2 A:81-2. As far as here pertinent, said statute reads as follows:
"When one party to any civil action is a lunatic suing or defending by guardian or when one party sues or is sued in a representative capacity, no other party thereto may testify as to any transaction with or statement by the lunatic while of sound mind or with or by the decedent, * * *."
The proffered oral testimony violated the interdiction of the cited statute. In a suit against an heir under N.J.S. 3 A:24-44 (Heirs and Devisees Act), the defendant is sued in a representative capacity. Joss v. Mohn , 55 N.J.L. 407
(Sup. Ct. 1893); Hunt v. Hendrickson , 97 N.J.L. 180 (E. & A. 1921); Ludlow v. Dwyer , 3 N.J. Super. 1 (App. Div. 1949).
One of the tests laid down for the ascertainment of what constitutes a transaction with a deceased is "to inquire whether, in case the witness testified falsely, the deceased could contradict it to his own knowledge." The proof of the deceased's written statements does not offend against the provisions of said statute, since they could not be denied by her if she were living, and hence are admissible. It follows that the memorandum was properly admitted. Metropolitan Life Ins. Co. v. Lodzinski , 122 N.J. Eq. 404 (E. & A. 1937); Bruen v. Spannhake , 118 N.J. Eq. 134 (Ch. 1935); Hollingsworth v. Lederer , 125 N.J. Eq. 193 (E. & A. 1938).
Before undertaking the ascertainment of whether the above referred to memorandum transgresses the rule requiring an instrument to be executed as provided by N.J.S. 3 A:3-2 in order to effectively and enforceably create a testamentary disposition of property, it becomes necessary to analyze the particular instrument to ascertain whether it is of a testamentary nature.
It is fundamental that the intent of the parties to an instrument should be sought for in aid of an interpretation thereof.
The first paragraph of the memorandum is tantamount to a recital. The rules applicable to the construction of an instrument in writing which contains recitals are as follows: (1) that if the recitals are clear and the operative part is ambiguous, the recitals shall govern; (2) if the recitals are ambiguous and the operative part is clear, the operative part must prevail; and (3) if both the recitals and the operative part are clear but inconsistent with each other, the operative part is to be preferred. Bellisfield v. Holcombe , 102 N.J. Eq. 20, 139 A. 817 (Ch. 1927).
Although inartistically and inartificially worded, the instrument acknowledges a loan by the plaintiff to the deceased, and the word "advanced" connotes "loaned." In
ordinary parlance, the word "advanced" as here used means "loaned." In the sense here employed it did not connote a gift.
"ADVANCE -- as a noun. A word of wide significance, which depends for its meaning, upon the context or surrounding circumstances."
"As LOAN -- While, in its strictly etymological significance, the word does not necessarily imply a loan, it has been so frequently used as its equivalent that it may be said that the word, whether taken according to its meaning in law or according to its meaning in common usage, includes loans as well as gifts."
2 C.J.S., pages 496 and 497.
"A loan has been properly defined an advancement of money upon a contract or stipulation express or implied, to repay at some future day."
Freeman adsm. Brittin , 17 N.J.L. 191, at page 231 (Sup. Ct. 1839).
"ADVANCE -- 5. A furnishing of something before an equivalent is received (as money or goods) towards a capital or stock, or on loan; * * * In the case of an advance, as distinguished from an advancement, there arises the relation of debtor and creditor, ...