Evening journal., 1913-11-04
LOSES UNDER
BROTHERS. WILL
Court Bars Recovery Of Money
Advanced for Speculative
Purpose
RESIDENT OF IRELAND
PLAINTIFF In SUIT

Afternoon a decision was handed down
in the case OF John Denash vs.. the Sc
curity Trust and Safe Deposit Com
lpanN executor OF Patrick Dcnash.
The bill was filed by John Denash, OF
Ireland, against the executor of his
brother, Patrick DeuHsn. Who died in
this city Ia November, 1905 lie claims
that in 1883 he gave two hundred
pounds IN bank notes and gold 10 bis
brother Patrick, who was then in Eng
land and was about to return TO this
country. Il is claimed that the trans
action took place at the home OF John
Dcuash in Liverpool No written state
ment Of the transaction passed between
the parties. Patrick returned to Amer
lea. and when he died 20 years later, he
owned certain real and personal prop
erty in Wilmington. all OF it being held
i'm his own name and none of il ear
marked in any way as impressed with n
trust.
"Thc only evidence Of the use made
by Patrick Denash. of the money says
1.-THE chancellor" were statements made
lin two letters, signed 'P. Denash' and
addressed to My dear brother one
dated May Is, 1906, and the other UNI
dated, and both purporting TO have been
written in Wilmington. These two let
tiers, = they were written or signed by
Patricl, Denash, indicate rather clearly
that he had received two hundred
pounds from the person to whom they
were addressed 10 be speculated with
for the latter's benefit. and that 1t has
been invested in several parcels Of real
estate, unidentified as TO location, bnt
lsaleabe ut prices which would have re-
atfI4 m IL
vanced the money. Tho bill asks for an
accounting for the. moneys and repay
lments of the fruits Of the speculation.
"The Security Trust and Safe De-
posit Company in its answer denies
that Patrick Denash made any invest
ment for his brother, declaressin gem
eral ignorance of the transaction and
calls on the complainant to prove the
allegations of his bill. None OF the
benefciaries under Patrick Denash' s
will were made parties to the suit
To quote from the Chancellor's
opinion: Proofs we're taken by de-
position and exhibits. Two witnesses
for the complainant, whose testi-
mony was taken i'm Ireland on inter-
rogatories. testified that on or about
September 23, 1883. the date fixed in
the bill. John paid the money In cash
to his brother at the house of the
. former in Liverpool. in the presence
Of witnesses, on the occasion of the
: visit OF the latter and on the day prior
TO his departure by steamer from LiN-
erpool to return to Wilmington. John
z Denash testiiies to the same facts and
z to the receipt of the letters from Pat
rick above referred to.
.IIa.T.a .I.an4N 1l nn
witnesses that Patrick Denash was il
n Wilmington on the date and year men
toned IN the bill aud testified to b
4 witnesses for the complainant TIL
q wife and stepdaughter of Patric
testified that in 1895 they went wit
3 Patrick TO England and we're at Johi
Denash's house in Liverpool. but de
z MED that the two witnesses for ~
Z complainant were there, and deniet
: the payment of the money by John e
. Patrick There is then an irreconcii'
.. able conflict of testimony as to the
8 fact of payment of the money at the
: time mentioned in the bill. or at any
other time, and viewing all the testi-
mony. nv conclusion is that the COM
3 plainant has failed to show by evil
E dence. outside of two letters he relies
z on. the trust relationship ON which
he relies.
"From the two letters IT is possible
: to make out a case for relief II they
& we're the letters OF Patrick Denash to
z the complainant. John Denash, But
z they were not addressed to John De
3 nash. and the only testimony to prove
either that they were written by Pat
rick. or addressed to John. is that
of John. the complainant. This testi-
z mony is excluded by the laws OF TINS
state - No effort was made by
8 the complainant to prove the sigSa-
: ture or handwriting of Patrick De
nash. but on the other hand there is
: testimony by an expert in hand-Wrll-
ing, expressing an opinion, in not very
5 strong terms. based on comparison
z Of handwriting of letters from John
z Denash. that the two letters relied on
by the complainant as being letters
Z received from Patrick Denash were ID
: the handwriting of the complainant
z There were also letters from the com
: plainant to his brother, Patrick and
others. offered in evidence. between
1906 and 1909, which might be con
: strued as inconsistent with the eXis
Z tence of the trust relation claimed by
the complainant. On the whole, then
3 there is no satisfactory evidence C
show that the two letter purporunt
to be from Patrick Denash were from
! him to his brother. John Denash, ant
so the proofs of the complainant, o.
all the facts, which, in absence o.
j.. some clear, uncontradicted testimony
! a Judge would rightly consider Il
4 reaching a conclusion"
a The Chancellor further states tina
4 the conclusion that the complainant j
not entitled to the equitable reiie
3 sought is based largely on the defect
\ in the proofs made by him. lie there
b fore orders the bill dismissed and th'
Z costs fixed on the complainant.
OF general interest is the decision o.
4 the Chancellor as to the rights OF th'
defendant in setting up his ansWV.
4 The court saws: "The complainant
counsel argued that practically an th'
4 testimony submitted by the defend
ant was inadmissabe inasmuch as tn'
defenses which such testimony SUP
4 stantiqted were not set up IN the an
sWcr 1t is. OF course, true that u
Chanccrv an answer i two iold II
character. in that it contains discoV
cry and sets up the defense ON whlcl
the defendant relies 20 defeat the bill
and. furthermore, that defendant
q cannot avail himself Of any matter o.