Briggs's Appeal , 93 Pa. 485 ( 1880 )

Mr. Justice Sterrett

delivered the opinion of the court, March 30th 1880.

The appellant’s claim on the fund for distribution is founded on the decree entered June 1860, in proceedings for partition of the real estate of John Briggs, deceased, commenced about six years before. As early as 1855, Peter Cool, Jr., in whose favor the decree was made, assigned his interest to the appellant'.

The appellees claimed that payments were made on account prior to February 6th 1868, and on that day the balance of principal and interest was paid to Mr. Nicholson, attorney for appellant, whose receipt was produced for “$90 on interest and balance on principal of Peter Cool’s share as heir in said estate of John Briggs, deceased.” The receipt is so ambiguously worded as to be susceptible of being construed as payment of interest and balance then due on principal, or as payment of the sum named, to be applied, first, to arrears of interest, and the residue on account of the principal. The Orphans’ Court construed it to mean the balance of both principal and interest, and said: “ The construction which we have put on this paper is consistent with the conduct of the parties for sixteen years, and in equity we are bound to take this into consideration.” What the conduct thus referred to was, or what evidence there was on that subject, we are not informed. It appears from this remark of the court, as well as from the auditor’s report, that some testimony was introduced, but it would seem that neither of them regarded it as of much importance; but, whether of much or little importance, it should have been presented for our consideration, and we should not be asked to reverse the decree of the court below without being furnished with all the facts on which it was based. To do so, would be unfair to the court as well as the parties. In a stale claim like that of the appellant, presented to an auditor twenty-five years after it originated, and nearly nineteen years after the entry of the decree on which it is founded, slight circumstances are 'admissible in support of a presumption of payment from lapse of time. While the general rule undoubtedly is that the presumption does not arise until twenty years have elapsed, it is well settled that a shorter period than that, aided by circumstances which contribute to strengthen such presumption, may furnish sufficient grounds for inferring the fact of payment: Hughes v. Hughes, 4 P. F. Smith 240, and cases there cited. But, aside from this, and assuming that the decree was based solely on the construction of the receipt contended for by the appellees, it is by no means clear that the court was not.right. There is not sufficient on the record to justify a reversal of the decree.

Decree affirmed, and appeal dismissed at the costs of the appellant.