137 Pa. 175 | Pa. | 1890
Opinion,
The learned auditor and the learned judge agreed that the judgment secured by the Loag mortgage belonged to the estate of Jesse Stewart. They were in accord as to the ownership of it, but differed in their methods of reaching the same conclusion. The former was of opinion that the assignment of it was spurious, while the latter thought it was genuine, that it had served its purpose, and that the title which passed by it had reverted to the assignor. "We think the learned judge was right in his conclusion "that the instrument purporting to be an assignment of the judgment was executed by the decedent on the day it bears date.
It is not pretended that there was a valuable consideration for the assignment; it is claimed that it was a gift of the judgment and the mortgage which secured it. The evidence of the alleged gift consists of the written transfer and what was said by the decedent concerning it, at or near the time of its execution. James H. Campbell was the only witness who testified to any declaration of the decedent indicating a purpose to make the gift. It must be conceded that the testimony fails to furnish a satisfactory explanation of the transactions between the father and son, on the occasion of the visit of the former to the latter, in June, 1881. This visit was made in compliance with the son’s telegram to come to Scranton immediately. On his arrival there, in the afternoon of the 18th of June, he received his son’s judgment note for $4,000 to secure him for past indorsements, and two days later he executed the assignment which is the subject of this litigation. It is a fair inference from the evidence before us that these transactions were suggested by the son, and that he had them in contemplation when he summoned his father to Scranton. It was a business visit prompted by him, and these were its fruits. In view of the relations existing between the alleged donor and donee respecting the former’s property in Pennsylvania, and his great age
In passing upon the only question in the case, to wit,whether there was an absolute gift of the judgment by the father to the son, we must consider the conduct of the latter, as well as the acts and declarations of the former. The assignor of the judgment died in November, 1881, and, in December following, the assignee thereof, as his executor, filed an inventory in the proper office at Belvidere, N. J., which included the judgment among the assets of the estate. In the ancillary administration in Pennsylvania, nearly two years after the death of the assignor, it was again placed in the inventory of his effects. ‘ This action of the assignee of the judgment cannot be reconciled with the theory that the assignment was a gift of it to him. It is consistent, however, with an understanding between the parties that the assignee should hold the judgment in trust for the assignor, and thus relieve the latter of any care attending the control and collection of it. The existence of such an understanding is entirely compatible with what the decedent said to Judge Handley concerning the assignment, and the only evidence in the case directly opposed to it is that of Campbell.
The inclusion of the judgment in the inventories mentioned was a deliberate acknowledgment by the assignee that it belonged to the estate of the assignor. It was not a mistake, and his attempt to make it appear as such finds sufficient condemnation in his letter to his co-executor, under date of November 14,1882. There are other acts and declarations of the assignee, extending over a period of nearly three years after the death of the assignor, which strongly negative the present claim of a gift, and are in harmony with the assertion of the inventories that the judgment in question is the property of the estate. These are grouped and commented upon in the opinion of the learned judge, and a detailed statement of them here is not deemed necessary. We are of opinion, upon full consideration of all the evidence, that no error was committed by the Orphans’ Court, in finding that the assignment was not a gift of the judgment.
Decree affirmed, and appeal dismissed at the cost of the appellant.
