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Smith v. Curtis-Opinion of Court.

but was not able to attend to her household affairs all the time, and that she had been at her, Mrs. S., house when she was very sick.

Mrs. Smith herself says that while she is palsied about her head and shoulders, and sometimes it affects her mind, that she is "capable of 'tending to business all the time." When recalled at a subsequent date she corrects this by saying that she meant that she was able to attend to her household affairs, but not capable of attending to law business. This testimony establishes that Mrs. Smith was at least a woman of ordinary intelligence. It is not required by the law that she should be a woman of extraordinary intelligence, or that she should have capacity to understand legal propositions. From her own statements to the witness, Duke, she not only understood the effect of her contract with Curtis, but she thought it was an advantageous one for herself, and looking at all the facts as shown in this record we agree with her in that conclusion.

The only remaining question to be determined is whether the execution of this deed was, as between the parties, the result of any fraud or the exercise of any undue influence or the violation of any trust or duty by the defendant to the plaintiff.

The testimony discloses that Curtis went to the place in July, 1868, as a boarder; that he was at that time practicing dentistry; that for some time he was sick; that on the 12th of October, 1868, he married the eldest daughter of Mrs. Smith, (she having three daughters and one son.) About March, 1869, he, with his wife, left for North Carolina. Mrs. Curtis returned in November, 1869, and he returned in January, 1870. During the period from 1868 to 1874, except one year, Mrs. Smith testifies that she carried on the farm. Mrs. Smith testifies that in the fall of the marriage she loaned Curtis $65. She also testifies to other

Smith v. Curtis-Opinion of Court.

advances to him and performed services for him for which he never paid, while the defendant swears that he has paid ali that he ever owed her. His wife having died, he, in the latter part of 1874, married Alice, the second daughter of Mrs. Smith, after which he "furnished the provisions generally" and received the revenues from the place. Without going into details, the evidence upon this point is that defendant during the time he had charge of the place was uniformly kind and attentive to the plaintiff and provided for all her wants. She herself testifies that he was attentive to all her wishes and desires. Says Mrs. Sheppard, plaintiff's witness, when speaking of their relations: "He seemed to be kind and attentive to Mrs. Smith. When I was present he seemed to treat her as a son-in-law ought to treat a mother; that Mrs. Smith seemed to be very much attached to him. I never knew her to oppose him in anything. I believe by her acts that he had great influence over her, and I don't know that she ever opposed him in managing the place." It is unnecessary to say more of the testimony as to this subject than that it discloses a confidence and trust upon the part of Mrs. Smith which was entirely justified by the kind and considerate treatment which she received from Mr. C. He had for years, during the absence of her children, given her a comfortable support, and had shown such attachment to her and such solicitude for her welfare as justified her in believing that if he agreed to take care of her in the future he would do so. The law does not prohibit contracts entered into upon the basis of mutual confidence and friendship.

Thus disposing of all the questions involved in this case, our conclusion is that the judgment must be affirmed.

Sammis v. L'Engle et als.-Syllabus.

JNO. S. SAMMIS, APPELLANT, VS. EDWARD M. L'Engle et

ALS., APPELLEES.

1. An attorney having money collected for a client in his hands, which money is claimed by two creditors of such client, his client disclaiming any interest in favor of himself, the attorney not being so fully cognizant of the facts as to determine the right, may properly bring a bill seeking a decree against the creditors that they interplead and contest their respective claims between themselves.

2. The practice upon answer and replication in an interpleading suit properly brought, is to decree the bill to be properly filed, to dismis the complainant with his costs up to that time upon his placing the fund in the registry of the court, and to direct an action to be brought or an issue or a reference to ascertain and settle the rights of the defendant claimants to the fund as the case may require. In this case there was a reference which was proper.

3. A cross bill setting up substantially the same facts as the answer, is inadmissible in an interpleader suit where the defendant can have. all the affirmative relief he is entitled to without it under the decree of reference to ascertain his right.

4. A debtor places a chose in action in the hands of his attorney, to whom he is indebted, with directions, not in writing, to collect and apply the proceeds, so far as necessary, to the payment of his debt. This is a particular assignment good in equity, and the assignee has an equitable right to enforce the debt at law in the name of the assignor. Such assignment places the chose in action beyond the contol of the assignor, and is good against a subsequent assignment by him, or a subsequent attaching credi

tor.

5. In a contest between an administrator and an alleged creditor of his intestate, the creditor is not under the statutes of this State a competent witness in regard to any transaction or communication between him and the deceased unless such administrator is examined as to such transaction in his own behalf, or testimony of such deceased person as to it is given in evidence.

Sammis v. L'Engle et als.-Opinion of Court.

6. Unless the case presented by the record is one in which there is a plain and adequate remedy at law, or some jurisdictional defect, or extreme multifariousness is disclosed, it is the practice of this court where the decree is otherwise proper to disregard objections of a technical character made here for the first time. Hence, a defendant to a bill of interpleader after unsuccessfully contesting the claim of a co-defendant and after decree to interplead between themselves not objected to, will not be permitted to object here for the first time that the bill is brought by such codefendant in the capacity of surviving partner of a firm against himself and another as administrators of the estate of his deceased partner.

Appeal from the Circuit Court for Duval county.
The facts of the case are stated in the opinion.

C. P. & J. C. Cooper for Appellant.

John Earle Hartridge and Wm. B. Young for Appellee's. MR. JUSTICE WESTCOTT delivered the opinion of the

court:

This is a bill of interpleader brought by E. M. L'Engle as surviving partner of the firm of Sanderson & L'Engle against John S. Sammis, the persons composing the firm of Smallwood, Hodgkiss & Co., one of whom was J. L. Smallwood, and against himself and Theodore Hartridge, administrators of the estate of John P. Sanderson. The suit arises out of moneys in L'Engle's hands as surviving partner of the partnership of Sanderson & L'Engle, attorneys at law, Sanderson, the deceased partner, being the intestate of whose estate he and Hartridge are administrators, and the moneys which are the subect of controversy are the proceeds of claims in favor of J. L. Smallwood & Co., a firm consisting of J. L. Smallwood and Thomas J. Perkins against Thomas, Livingston & Co., which L'Engle as surviving partner of the law firm has collected.

From the testimony of Smallwood it appears that the

26-19th Fla.

Sammis v. L'Engle et als.-Opinion of Court.

claim of J. L. Smallwood & Co. against Thomas, Livingston & Co. had become an asset of Smallwood, Hodgkiss & Co. in A. D. 1870.

L'Engle as administrator and Sammis in his own right respectively claim this fund.

The decree of the Circuit Court being in favor of Sanderson's administrators and against Sammis, he (Sammis) appealed therefrom.

Sanderson's administrator claims in two aspects. First, by virtue of an assignment by Swallwood, as a member of the firm of Smallwood, Hodgkiss & Co., of the claim against Thomas, Livingston & Co. to Sanderson during his life time for collection and application of its proceeds to payment of debt due Sanderson by Smallwood, Hodgkiss & Co. Second, by virtue of a judgment of L'Engle and Hartridge, Sanderson's administrators, against Smallwood, Hodgkiss & Co., and a garnishment thereon to E. M. L'Engle, the surviving partner of the firm of Sanderson & L'Engle, who has possession of the funds collected on the claim against Thomas, Livingston & Co.

Sammis is a judgment creditor of Smallwood, Hodgkiss & Co., and claims priority by virtue of a garnishment to E. M. L'Engle, he (Sammis) insisting that his attachment of the funds in the hands of E. M. L'Engle, surviving partner of the firm of Sanderson & L'Engle, has priority on account of alleged irregularities in the issuing of the attachment in favor of Sanderson's administrators, the judgment and garnishment in the suit of the administrators of Sanderson against Smallwood, Hodgkiss & Co. being prior to the garnishment and judgment in the suit of Sammis against Smallwood, Hodgkiss & Co.

Sammis also claims by virtue of equities alleged to exist between himself and Sanderson during his life time and Smallwood, Hodgkiss & Co.

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