Appeal of Runner , 121 Pa. 649 ( 1888 )

Opinion,

Mr. Justice Clark :

The question presented in this appeal arises upon the distribution of the estate of Robert Killough, deceased, in the Orphans’ Court of Lancaster county. The claim which gives rise to the contention is made by Margaret J. Runner, administratrix of the estate of Mary Eliza Killough, deceased, on an obligation under seal, dated 10 December, 1864, payable in one year from date, with interest; one calling for $800, upon which a credit of $10 is entered 6 October, 1875; the other for $267, upon which credits are entered as follows: 2 December, 1865, $5; October, $70; 3 March, 1879, $25. The execution of the notes is admitted, and their validity at the time of their execution is not denied. No claim was made upon them, however, until after the debtor’s death, and it is contended on the part of the executrix of the last will and testament of Robert Killough, deceased, that as they have been unclaimed and without recognition for twenty years and upwards before their presentation to the auditor, the law will presume that they are paid.

The obligations which constitute the claim in this case were dated as we have said, 10 December, 1864; Mary Eliza Killough died 5 January, 1886, and the obligations were laid before the auditor some time in August, 1887. From the time of the maturity of the obligations, therefore, eighteen years, three months, and twenty-five days -had intervened at the death of Mary Eliza Killough; twenty years and twenty-five days at the death of Robert Killough, and twenty-one years and eight months when they were presented for payment before the auditor. Under these circumstances the presumption of payment would undoubtedly arise, unless there is sufficient evidence to explain the delay, or to show that notwithstanding the presumption the debt is actually unpaid. There is no evidence showing when the several credits referred to, or any of them, were entered, and it is a well-established principle that credits indorsed on a bond are not evidence of actual payment, to rebut the presumption, until proven or shown to have been made within twenty years, and whilst it was contrary to the interest of the obligee to make them: Lash v. Von Neida, 109 Pa. 207. It is not pretended that Robert Killough was insolvent, or that the money might not, at any time after the maturity of the bond, have been made out of his estate; the only matter suggested in explanation of the delay is the fact, that the parties to the obligation were brother and sister, and as the latter was in no need of her money she was indulgent in its collection. The appellant relies, however, upon certain admissions of Robert Killough, made within twenty years, which she contends are sufficient to rebut the presumption of payment. The auditor, as well as the court below, was of opinion that the evidence of these alleged admissions was insufficient; that it was not direct or positive, and the claim was not allowed in the distribution.

Mary Eliza Killough at her death left to survive her a brother, the said Robert Killough, and a sister, Eleanor Tomlinson. Robert Killough was therefore entitled to one half of the estate of Mary Eliza and Eleanor Tomlinson to the other half. Margaret J. Runner, wife of Henry Runner, the administratrix of the estate of Mary Eliza Killough, deceased, is a daughter of Eleanor Tomlinson, and Ebenezer Tomlinson is her son.

Ebenezer Tomlinson testifies as follows: “ Two weeks before Robert Killough died, I was there to see him, and he told me to tell my mother, Eleanor Tomlinson, to come down, that he wanted to see her on this business of theirs; that he was not able to go up to her. He did not say what business. She was sick at the time and was not able to go there.” Henry Runner testifies: “ A short time before Robert Killough’s death he said to me that he would be up shortly, in a week or ten days, and fix up these two notes. He spoke of his sister’s notes, but mentioned no amount......Robert Killough and Eleanor Tomlinson came to my.house about a month before Robert Killough’s death. It was' before Thanksgiving day. He asked me for these notes and. said he would like to fix them up. He did not get them, my wife was not at home that day. Robert Killough told Mrs. Tomlinson there, that he would pay her one half the money on these notes, that he would be up in a week or ten days for that purpose. I heard him say this to her......He said he would pay over her share on the two notes to Eleanor Tomlinson. He said this to Eleanor Tomlin-son in my presence; the notes were not shown to him at that time; the notes were at my place. They were not fixed on that day on account of sickness. He did not say how he was going to fix them, no more than I have told you......He finished the conversation as he got into the carriage to go away. The carriage was out in the road close to the gate. The conversation took place in the house, in the first place, in the kitchen. I was there during the conversation in the kitchen; no person had a piece of paper or pencil to count how much money was due. My wife was not there; she was not at home. The notes were at the house at that time; she kept them up-stairs in a little box, a fancy box she kept papers in; it was not locked either. My mother-in-law was not living with us at that time. She had a home of her own at Mechanics’ Grove. Mrs. Tomlinson came to my house on that day with Robert Killough. They were at my place about an hour. It was because my wife was away that they could not get these notes to make the calculation; they had not these notes before them at that time.”

If this testimony is believed, and it is not contradicted or in any way discredited, it exhibits a clear, distinct and unequivocal recognition of the debt evidenced by the notes. It is not the case of a casual conversation with a stranger. The purpose of Robert Killough’s visit to the house of Mrs. Runner was to fix these notes; his purpose he said was to pay to her the one half; he took Mrs. Tomlinson with him in order that this adjustment might be made, but owing to the absence from home of Mrs. Runner, who had the notes in her custody, the settlement was not effected. “He asked for the notes,” says Runner, “he said he would like to fix them up; he did not get them; my wife was not at home that day; Robert Killough told Mrs. Tomlinson, then, that he would pay her one half of the money of these notes; that he would be up in a week or ten days for that purpose. I heard him say this to her.” This recognition of the debt is express and direct, positive and unconditional; if true, it was certainly sufficient to rebut the presumption, and its truth is not seriously questioned. We are of opinion that this claim should have been allowed.

The decree of the Orphans’ Court is therefore reversed, and the record remitted in order that distribution may be made in accordance with this opinion, and it is ordered that the appellees pay the costs of this appeal.