Estate of Kuhlman , 178 Pa. 43 ( 1896 )

Opinion by

Mr. Justice McCollum,

The question raised by this appeal is whether the learned court below erred in refusing to allow the appellant a credit in his account for the amounts represented by the bond and notes he held against the estate. The claims based on the notes were barred by the statute of limitations, and the claim founded upon the bond was'not. The former were simple contracts for the payment of money, and the latter was a specialty. There was no evidence of a payment, acknowledgment or promise which tolled the statute as to the notes, and the lapse of time was not sufficient to raise a presumption that the bond was paid. The mere fact that the notes were held by the executors of the estate did not prevent the running of the statute. If therefore the only question raised on the appeal related to the effect upon the claims of the statute of limitations, the claim upon the bond should be allowed and the claims upon the notes should be rejected.

The learned court below thought that as the claimant was the executor of the maker of the bond and notes, and they matured several years before the death of the latter, the unexplained possession of them by the former was not sufficient to enable him to recover upon either of them: McGeary’s Appeal, 5 Central Reporter, 855; McMahon’s Estate, 132 Pa. 179, and Hoffer’s Estate, 156 Pa. 474, are cited to sustain this view. McGeary’s Appeal was not decided on the ground of a presumption that the papers on which the claims were based were received and held by the claimant as administrator of the estate, but upon the weight of the testimony in the case. In the opinion on which the decree of the court below was affirmed it was said: “ Most of the other papers offered in evidence upon which credits are claimed are debts due by the decedent which antedate his death from three to four years, and a majority of the transactions were of such a nature that the probabilities are they were settled in his lifetime. All of these papers were found in a wallet containing other valuable papers of H. S. McGearyin his safe after his death. But he may have come into possession of all, except the note for $500 dated November 9, 1880, which matured after decedent’s death, as his administrator. This possibility weakens the prima facie case made out by their posses,sion.” After summarizing the material parts of the testimony the court said : “ the weight of the evidence seems to be against the accountant as to the credits claimed for indebtedness due by the decedent to H. S. McGeary, except as to the G. B. Brown note; and with that exception they are not allowed.” In McMahon’s Estate it was decided that on the distribution of the effects of the decedent “ it was not error to exclude from allowance a note signed by the mark of the testatrix who could not read or write, and the execution of which was not clearly and satisfactorily established.” All that was said in the opinion in regard to the duty of the claimant to prove that he had the note by a “ hostile title ” was said in the light of circumstances which condemned his claim as fraudulent and on which it was rejected. In Hoffer’s estate the claims were allowed upon the evidence of the executor’s wife that the notes on which they were based were in her custody immediately after the decedent’s death, and that she then handed them to her husband. Not one of the decrees entered in the cases cite.d rests distinctly upon the ground on which the court below entered the decree in this case. The decree in each of the cited cases was based on the facts found from the testimony.

If it be conceded that the executor in this case, by reason of the time intervening between the maturity of the bond and notes and the death of the maker of them was bound to show a hostile title, there was ample and undisputed evidence to establish it. The proof was clear that the bond and notes were executed by the decedent and represented loans made by him of Rehfuss from time to time, and equally clear that his financial condition from the time of their execution to the time of his death was not such as to render the repayment of them probable. His own declarations in regard to the loans were flatly opposed to the theory that he had paid them, and at least one of these declarations was made within a few months of his death. Besides there was nothing upon the bond or notes to indicate that he had paid them, or that they were in his possession at any time after he executed and delivered them to Rehfuss. It is not usual for a party who has paid his note to retain it without canceling his signature to it or making some entry thereon destructive of his liability created by it. In view of the evidence we think the conclusion that Rehfuss obtained possession of the bond and notes as executor of the estate was unwarranted, and that his claim upon the bond which was not barred by the statute of limitations, should have been allowed. We therefore sustain the second specification of error and so much of the first as relates to the disallowance of the claim upon the bond.

Decree reversed at the costs of tbe appellee and record remitted, with direction to enter a decree in accordance with this opinion.