192 A. 252 | Pa. | 1937
Argued March 29, 1937. Appellant sued to recover a sum of money for the estate of his decedent which he, as executor, had paid to appellee out of the estate. He offered in evidence four cancelled checks drawn to appellee's order upon the account of the estate and testified the money was loaned to appellee upon an oral contract to repay. Appellee pleaded that the checks were given in fulfillment of an unexecuted gift promised by the decedent, or as the consideration of a contract between decedent, himself and his wife. He testified his wife sent him to appellant for this money, and that no promise to repay it was ever exacted or made. He offered to prove that decedent had promised to defray the costs of furnishing a home if he and decedent's daughter should marry, and that he had incurred obligations in reliance thereon. The trial judge refused to permit appellee to testify to any transaction occurring prior to the death of the decedent. Judgment for appellee was entered upon the jury's verdict, and this appeal followed.
In support of his contention that the burden of proof was on appellee, appellant cites cases holding that one in possession of property as an alleged gift from a decedent has the burden of proving the gift affirmatively. See Henes v.McGovern,
The cancelled checks offered in evidence did not raise any presumption of a loan, nor shift to appellee the burden *338
of explaining the transaction in which they were given. The presumption which would arise from the checks, in the absence of evidence to the contrary, would be that they were given in payment of an antecedent obligation, or for cash. InFlemming's Executor's v. McClain,
The court below stated this rule of law correctly, but appellant objects that no such presumption could arise in the present case because the defense pleaded by appellee was inconsistent with either presumed conclusion. Although not clearly phrased, the affidavit of defense may be construed to set up both a promise of gift by the decedent, and a contract to supply house furnishings supported by consideration. The latter defense is consistent with the presumption. But even if the affidavit be not so understood, any harm that may have been threatened by the court's reference to the presumption was overcome by the further instruction that its force was lost by the introduction of direct testimony of the transaction.
The case was properly submitted to the jury by the court below. There was an issue of fact upon the question of whether or not appellant loaned this money to appellee, and there was sufficient evidence to support the *339 jury's verdict. Appellant's case consisted of the production of the checks, the testimony of himself and his brother as to the issuance of the checks and demands for repayment. Appellee's offer to prove the transaction between decedent, appellee's wife and himself was properly refused. The Act of May 23, 1887, P. L. 158, Section 5(e), renders the surviving party to a transaction with a decedent, whose interest is adverse to the decedent or his estate, incompetent to testify to the transaction. See Weaver, Executor, v. Welsh, supra.
The alleged promise being to appellee's wife, both she and appellee are incompetent witnesses as to it. See Weaver,Executor, v. Welsh, supra. But it should be noted that even if this had been proved, unless based on a consideration, it imposed no obligation upon the executor to pay the money, nor did his action in so doing consummate the decedent's asserted intention. In Allshouse's Estate,
Appellee was entirely competent, however, to testify to the acts and statements of appellant and himself when the checks were delivered, and this testimony was sufficient to raise an issue for the jury because it contradicted appellant's claim of a loan. The burden was not upon appellee to show the exact nature of the transaction, but rather upon appellant to make out his case as pleaded. The character of proof of the loan, the uncertain *340 and controverted testimony as to the demands, and the failure of appellant to bring the action until appellee divorced appellant's sister five years after the checks were given, together with appellee's flat denial that a loan was intended, form an ample basis for the verdict of the jury.
Appellant urges, however, that even if no loan was made out, appellee's own testimony showed clearly an improper payment of funds belonging to the estate, which he is entitled to recover as executor. It is true that an executor may recover, in appropriate action, trust funds improperly paid by him to one with knowledge of the circumstances. See Abbott's Executorv. Reeves,
Judgment affirmed. *341