116 Pa. 505 | Pa. | 1887
On August 5, 1881, Amos S. Henderson and Anne E. Henderson gave to the executor of the will of Anne Franklin, deceased, an acknowledgment that certain Treasury Notes to the amount of three thousand dollars had been changed, and that they had in their hands the sum of three thousand dollars, the interest thereof to be retained by said Anne during her life, and at her death the principal to be returned to the executor. That paper is silent as to when or by whom the Treasury Notes had been changed or converted, but it bound Amos S. Henderson for return or payment of the money.
Henderson was a banker, doing a large business, and the learned judge of the Orphans’ Court says, “ his creditors were legion; some two thousand aud one hundred presented their claims to the auditor for payment.” He died January 13, 1885, and his wife died in June following. She left no estate save that derived from insurance on the life of her husband. There is not a tittle of evidence that Mrs. Henderson was engaged in business, or in any way spent or lost money. The reasonable inference from the facts already mentioned is that she put the money into the care of her husband to be paid when required for distribution by the executor.
Two or three days before Henderson died he told his son to bring from the bank three thousand dollars to pay a note he had given to his wife; but the son, not finding the note, did not take the money to his father as he had been requested. There is no other evidence that such note had been given to Mrs. Henderson. Treating the son’s testimony by itself “ the auditor was constrained to find the fact that the relation of debtor and creditor did not exist between Mr. Henderson and his wife in reference to this claim.” And if it was proper to so treat it, his finding would not be reversed, for facts found by an auditor and approved by the court below will not be disturbed except for manifest error.
But the son’s testimony should be considered in connection with Henderson’s written acknowledgment or receipt, and all the circumstances. This is so reasonable that in the appellees’ argument it is said: “Further, Amos S. Henderson, at the time this conversation occurred with his son, was in the last hours of his life, after having passed through a long and
This court held in Franklin’s Appeal, 18 W. N. C. 245, that Mrs. Henderson was liable because of her wrongful conversion of the Treasury Notes placed in her hands in trust. There was nothing to show that her husband was a party to the tort, nor was there question as to his liability to anybody. The receipt was pertinent evidence in that case touching the alleged conversion. The auditor remarks that all the testimony, except what Mr. Henderson said to his son, was before the Supreme Court, where it was held that Mrs. Henderson was guilty of conversion of the trust fund ; and he therefore considers whether there is “ sufficient evidence in the statement of Mr. Henderson, two days before he died, to his son, to show that he ever received this money and owed it to his wife.” This was a grave mistake. It mattered not in the disposition of Franklin’s Appeal whether Henderson had borrowed the money from his wife, or whether Mrs. Henderson had retained it in her own custody. Had all the evidence, properly or improperly, been before the court in the hearing of that case, all pertinent evidence must be considered in this. Upon the whole of the evidence pertinent to the inquiry whether Henderson received the money and owed it to his wife, the question must be answered. It is plain that the auditor’s finding was based on a fragment. He also put stress upon her conversion of the trust securities as inconsistent with a loan of the money to her husband. But after conversion there was nothing in the way of a loan to him more than to another person.
The evidence impels us to the conclusion that Amos S.
Decree reversed, at the costs of the appellees, and record remitted that distribution of the fund be made in accord with the opinion of this court.
