265 Pa. 512 | Pa. | 1920
Opinion by
Hezekiah Gongaware died January 11,1916, intestate, leaving to survive him a widow, four sons, one daughter, and an adopted daughter. One son and one daughter were children by a former wife, and were married and living in their own homes. The other children were over age and married, and they and their families and the adopted child lived with decedent as part of his family,
Under Section 2 of the Act of June 16, 1836, P. L. 683, it is our duty on appeals from the orphans’ court to “hear, try and determine the merits of such cases, and to decree according to the justice and equity thereof.” We have consistently held, however, that where specific facts are found by the court below we will sustain the findings unless there is no evidence to support them, or they are clearly erroneous and to uphold them would work a manifest injustice (Barnes’s Est., 221 Pa. 399; Seidman’s Est., 261 Pa. 540), and this is so even though we might reach an opposite conclusion if we were sitting in a court of first instance (Plankinton’s Est., 212 Pa. 235; Turtle Creek Borough v. Pennsylvania Water Co., 243 Pa. 401); but this rule does not apply where the findings are only inferences or deductions from other facts, or conclusions from reasoning: Hindman’s App., 85 Pa. 466; Milligan’s App., 97 Pa. 525; Cake’s App., 110 Pa. 65.
In the present case the court below decided that the widow and children were severally incompetent to testify in support of their own claims, where the matters occurred during the lifetime of decedent, but that each of them was competent to testify as to the claim of any other, for the reason that such testimony was against the interest of the witness. Appellees agree with these
It does not follow, however, because they were competent witnesses the court below was obliged to accept their statements as verity. The opportunity for collusion is always great where two or more people take turn about in testifying for each other, and hence we are not prepared to say the court below clearly erred in refusing to find as facts those conclusions which depended on their testimony only: Eppsteiner v. Isman, 239 Pa. 393; Crusan v. Crusan, 243 Pa. 165. We therefore overrule the 3d, 4th, 6th, 7th, 8th, 9th, 18th, 19th, 20th, 21st, 22d, 23d, 24th, 25th, 26th, 27th, 28th, 30th, 31st, 32d, 33d, 34th, 35th, 36th, 37th, 38th, 39th, 40th, 41st, 42d, 43d, 44th, 52d, 53d, 54th, 55th, 56th, 57th, 58th, 59th and 60th assignments of error, because the evidence upon which appellant relies to sustain them has no substantial basis outside of her own testimony and that of her children who are also claimants against the estate.
Many of the other rulings of the court below are based upon the fact that the articles the subject of this controversy were in the house and upon the farm occupied by decedent, from which it was concluded a presumption arose they were his property. Inasmuch, however, as the widow and children who are claiming them also lived in the same house and worked on the same farm, in the nature of things no one of the family would have exclusive possession of these particular articles. On the other hand, it was admitted at the oral argument that most thereof were purchased with the money of decedent, and hence the presumption is they were his, and the burden of proving a gift from him is upon those
The 5th assignment of error relates to a cream separator which decedent did not order, and the 29th to a piano, which he probably did, but each of which are claimed by appellant, and were at least partly paid for by her. In addition to the testimony of the sons, there is in each case the evidence of disinterested witnesses that appellant asserted her ownership in the presence of decedent and he did not dispute the claim, but on the contrary admitted it. None of the foregoing evidence was contradicted and hence these assignments are sustained.
The 10th to 17th assignments of error relate to the value of certain threshing outfits which were claimed by the son, Charles Mortie Gongaware. As to one of these the evidence shows it was largely paid for by checks of claimant on his own bank account. We cannot agree with the court below that this amounted to nothing because it was not shown whose- money was in the ac
The 46th to 51st assignments relate to a surcharge in the sum of $3,920, the amount of certain notes of one Taylor Kunkle, which were found in the possession of decedent and were later returned to the maker, because appellant was convinced they had been paid in full to decedent. After his death the matter was taken up with the payee of the notes, who claimed he had from time to time paid sums of money and furnished materials, which should have been credited on account thereof, and which together aggregated slightly more than the amount of the notes. There was found among decedent’s papers a small account book which specified
The 61st assignment of error alleges the court below erred in reducing appellant’s commissions, which were allowed at the rate of five per cent upon all the collections made, but was refused upon items of property not yet converted. We think this is clearly correct. If ap
The only other assignments are the 1st, which relates to the final decree and is sustained to the extent herein-before set forth, and the 2d, 45th and 62d, which are general in character, embodying matters already considered in detail, and are therefore overruled.
The decree of the court below is reversed to the extent indicated in this opinion, and the record is remitted for further proceedings in accordance therewith.