94 Pa. Super. 216 | Pa. Super. Ct. | 1928
Argued April 18, 1928. In decreeing distribution of the funds in the hands of the Union Trust Company as executor of the will of Hallie Linn Swaney, as shown by its first and final account, the learned President Judge of the Orphans' Court of Washington County, before making distribution to the several legatees named in the will, awarded to Charles F. Linn, in his own right and as assignee of Andrew M. Linn and George T. Linn, the sum of $4,000 as representing the corpus of a certain trust fund created by the will of Hannah L. Manown, the income of which had been payable to the said Hallie Linn Swaney during her life and the principal of which was alleged to have been in her hands at the date of her death, in trust for three of her cousins, George T. Linn, Andrew M. Linn and the said Charles F. Linn as remaindermen. Ida M. Carmack, residuary legatee under the will of decedent, denying upon various grounds hereinafter stated that Charles F. Linn was entitled to receive this fund, either as a cestui que trust or as a creditor, and alleging that it formed a part of the estate of the decedent and was distributable to the legatees named in her will, filed exceptions to the adjudication and decree of distribution. After due consideration by the auditing judge the exceptions were overruled for the reasons stated in his opinion and we now have her appeal.
The pivotal question involved under the assignments of error relates to the competency of Andrew M. Linn and George T. Linn to testify as witnesses in support of the claim of their brother, Charles F. Linn, for without their testimony this record would be barren of any evidence justifying the findings of the court below with relation to this claim. The question arose under these circumstances: Hannah L. Manown, who died May 18, 1906, by her will created three trust funds of $4,000 each — the income of one to be paid *219 to her nephew, Harry H. Linn, during his life, with remainder to his brothers, George T. Linn, Andrew M. Linn and Charles F. Linn; the income of another to be paid to her brother, George A. Linn, during his life, with remainder to his daughter, Hallie Linn Swaney, whose estate is now being distributed; and the income of the third to be paid to Hallie Linn Swaney during her life, with remainder to her cousins, the said George T. Linn, Andrew M. Linn and Charles F. Linn. The respective trust funds were bequeathed by Hannah L. Manown to her executors, George A. Linn, her brother, and George T. Linn and Andrew M. Linn, nephews, upon the trusts above mentioned.
We are concerned in this proceeding only with the third fund, of which the decedent was entitled to the income for life with remainder to George T. Linn, Andrew M. Linn and Charles F. Linn, and of which George A. Linn, George T. Linn and Andrew M. Linn were the trustees. In support of the contention that this fund of $4,000 was in the possession of Hallie Linn Swaney at the time of her death — that George T. Linn and Andrew M. Linn, two of the remaindermen, had assigned to their brother, Charles R. Linn, the third remainderman, their respective interests therein, so that he was entitled to receive the whole amount out of the assets of the estate of Hallie Linn Swaney, upon the theory that this fund did not properly belong to her estate — Andrew M. Linn and George T. Linn offered themselves as witnesses in the court below. They proposed to testify to the circumstances under which they had made the respective assignments of their interests in the fund to their brother, Charles F. Linn, and to certain family settlements and agreements and other facts tending to support the claim of Charles F. Linn for payment to him of the fund in advance of any distribution to legatees. Objection was made to their competency to so testify but their testimony was received under the objection *220
and exception of counsel for appellant, whose subsequent motion to strike out their testimony was denied. It was conceded that the claimant would have been clearly incompetent under clause (e) of section 5 of the Act of May 23, 1887, P.L. 158, but it was contended that, by virtue of the assignments executed by his brothers, Andrew M. Linn and George T. Linn, they became competent under section 6 reading: "Any person who is incompetent under clause (e) of section five by reason of interest, may nevertheless be called to testify against his interest, and, in that event, he shall become a fully competent witness for either party; and such person shall also become fully competent for either party, by a release or extinguishment, in good faith, of his interest, upon which good faith the trial judge shall decide as a preliminary question." May a witness excluded from testifying by clause (e) of section 5 make himself competent under section 6 by the execution of an assignment as distinguished from "a release or extinguishment?" We are of opinion, under the reasoning in Darragh v. Stevenson,
There is always a legal presumption against the admission of such testimony as was received under objection in the present case. Chief Justice GIBSON'S remark in Post v. Avery, supra, that "in doubtful cases the burden of proof will lie on the party attempting to get rid of the interest; and it will be incumbent on him to clear his motive from suspicion" is still applicable. In Phinney v. Tracey,
To the end that the auditing judge might properly decide as a preliminary question the good faith of the assignments, the proposed witnesses were examined upon their voir dire with respect to the circumstances under which the assignments were executed. The assignment of Andrew M. Linn, dated November 25, 1925, recited the paragraph of the will of Hannah L. Manown creating the trust and "for value received" sold, assigned, transferred and set over to Charles F. Linn all the right, title and interest of the assignor in the trust fund. The assignment of George T. Linn was dated December 1, 1926, and was *223 in the same form. With respect to these assignments Andrew M. Linn testified: "At the time of her death, which was a sudden death, my brother, George T. Linn, and I discussed the disposition of the principal of the trust fund held for the life of Hallie Linn Swaney and at her death to go to him and me and my brother, Frank, — C.F. Linn, and, on the day of her funeral, decided to turn that over to our brother, Frank, [Charles F.] without any regard as to what her estate was and without any knowledge as to what disposition she had made of it. We had no information as to the amount of her estate and no information whatever as to what disposition she might have made....... Sometime after the appointment of the Union Trust Company of Pittsburgh as executor of this will, I told Mr. Berryman, the trust officer, of the fact that four thousand dollars in the securities in the name of Hallie Linn Swaney should be held not for her estate but representing the trust estate created by the will of Hannah L. Manown and before the filing of an account — in fact before any knowledge came to me of the value of the estate, I furnished Mr. Berryman a formal assignment of my interest in this trust fund and requested that that fund be held separate from the estate and turned over to my brother, C.F. Linn." Under cross examination by counsel for appellant he said: "Q. Now, you said that this assignment that you had made was without consideration. Will you tell why you made that assignment? A. Yes. I made the assignment because fortune had been more kind to me than my brother Frank. I wished to give him so much money, that's all. Q. You didn't make it then for the purpose of making yourself a competent witness? A. None whatever. There was no controversy at that time. It was made after — the day after the death of my — Q. How does it come that you didn't make it before that? A. There was no occasion to make it before that." *224
The testimony of George T. Linn with respect to his motives in making his assignment reads: "Q. Now, this assignment from you to C.F. Linn was made without money consideration? A. Yes. Q. Voluntary assignment? A. Voluntary assignment. Q. State whether or not that assignment was made in good faith? A. It was made in good faith without any reference to any other proceeding because, whether it may seem ignorant or not, I didn't know that it would make any difference as to this proceeding....... Q. Was the assignment made for the purpose of qualifying you as a witness? A. It was not. I didn't know that I would have to be a witness." His cross examination on this subject reads: "Q. Was the matter of proving the claim talked over between you and your brother at all? A. No, not particularly, except that he may have said and I knew, that it would take an order of court to transfer the money. Q. Was there anything said to you as to the difficulty of proving the claim inasmuch as you had no writings from your uncle George or anything? A. No; there was nothing said about anything. Q. What did your brother do, your brother Charlie, C.F. Linn, Frank? A. He is a physician. Q. And you made this just simply as a gift from one brother to the other without any consideration, is that the idea? A. No consideration. He has a family and I have no family and I wanted to give him the money."
In disposing of the preliminary question of good faith the auditing judge said: "What is the good faith which the Act requires is expressly for the trial judge in the first instance: Semple v. Callery,
From the testimony of Andrew M. Linn and George T. Linn the court below found that when the executors of Hannah L. Manown settled their account it was orally agreed by way of a family settlement that one of the executors, George A. Linn, should retain possession of the securities representing the two trust funds in which he and his daughter Hallie Linn Swaney, were interested as beneficiaries and that the other two executors should hold the securities of the third fund in which they and their brothers, H.H. Linn and Charles F. Linn, were beneficiaries; that these securities consisted, inter alia, of approximately one hundred shares of Pennsylvania Railroad stock and twenty-eight shares of the Bank of Pittsburgh; that George A. Linn took possession of the bank stock, some of the railroad stock and other securities representing the $4,000 trust fund in question, and the other fund in which he was interested, and retained possession thereof until his death, intestate, on April 5, 1908, at which time they passed into the possession of the decedent as the administratrix of his estate; and that she agreed that the fund of which she was entitled to the income would be "safe in her hands." There was evidence tending to show that the twenty-eight shares of the Bank of Pittsburgh, having a present appraised value of $4,200, and which were owned by Hannah L. Manown at the time of her death, were transferred in March, 1908, to George A. Linn and to Hallie Linn Swaney in April, 1911, and were disposed of by her executor. There were also among the securities in the possession of Hallie Linn Swaney at the *227 time of her death approximately one hundred and fifty shares of Pennsylvania Railroad stock. The auditing judge found, however, that none of the assets of the estates of George A. Linn or Hallie Linn Swaney could be definitely earmarked as belonging to this particular trust. There was sufficient evidence to sustain these findings.
It is argued by the learned counsel for appellant that there is no testimony showing that the fund in dispute passed into the hands of the decedent. We do not so read the testimony. Andrew M. Linn testified to the following conversation between decedent and himself on the day letters of administration were issued to her on her father's estate, April 27, 1908: "I reminded her that among the assets in the hands of her father — and whether they had been assigned to his name or not — actually was a fund of four thousand dollars which only belonged to him for life and it belonged to her now, as to which she needn't account [the second fund above described], and a fund of four thousand dollars which belonged to her for life, — that is, that she was entitled to the income but that she must remember and keep that four thousand dollars separate from funds of her own for the reason that at her death the principal, under the will of our aunt, would come to myself and my two brothers. She said she knew all about these things and that that would be — that fund would be safe in her hands." On cross examination, after again referring to this conversation, he continued: "And at a date somewhat later than that, which was the only time she ever visited at my house here in Washington, when I again referred to the fact that she held in her hands four thousand dollars of which she was entitled only to the income and the balance came to us and she again said that was a fact and the fund was as safe there as any place else it could be, which I knew to be true."
In the light of this testimony we deem it unnecessary *228
to consider in detail whether this particular $4,000 was so mixed with other funds of George A. Linn or Hallie Linn Swaney as to lose its identity as a trust fund, or whether, under the rule of Farmers' and Mechanics' National Bank v. King
Decree affirmed at costs of appellant.