41 Misc. 274 | N.Y. Sur. Ct. | 1903
In this proceeding for the final judicial settlement of the accounts of Philip A. Salisbury, as executor of the last will and testament of John B. Salisbury, an alleged claim of Maria Skinner against said estate, presented to and disallowed by the executor, was, by the consent of both parties, submitted to the surrogate for his determination.
The alleged claim consists of a promissory note, of which the following is a copy:
“ Onarga, 111., April 1 st, 1889.
“One year after date for value received I promise to pay. Mrs. Maria Skinner or order four hundred and sixty-six dollars with interest from date.
“ J. B. Salisbury.”
Upon the back of this note there are three indorsements, conceded to be in the handwriting of this testator, showing the payment of the interest on this note to April, 1, 1892. The following are copies of said indorsements:
“ Westford April 1st 1890. Rec’d interest on the within note to date.
“April 1st 1891. Rec’d interest on the within note to date.
“April 1st 1892. Rec’d interest on the within note to date.”
There is also an endorsement on the back of said note purporting to have been made on the 14th day of October, 1898, in the following words and figures:
“ Oct 14 1898. Received one dollar and twenty-five cents.”
Ho other indorsements appear upon the note. It will be observed, the last payment conceded to have been made being on
It is maintained, on the part of the claimant, that this last indorsement is in the handwriting of the testator, and, in support of said claim, Mary Ella Van Deusen, a niece of the testator and of the claimant, is called as a witness, and she testified that the note and all of the indorsements are in the handwriting of the testator. Henry Salisbury, a brother of said testator and of the claimant, also testified that, in his opinion, the note and all of the indorsements are in the handwriting of the testator. The last witness is a blacksmith by trade, and his business would not necessarily require a very thorough knowledge of the manners and styles of different handwritings. This evidence, together with the note and indorsements thereon, practically constitutes the claimant’s case.
The executor was called as a witness and testified that he had been in business with the testator for two or three years, and had had frequent correspondence with him up to within a short time before the death of the testator, and was familiar with his handwriting. He further testified that the last indorsement on said note was not in the handwriting of the testator. This, together with certain exhibits used for comparison, and with the note itself, and the indorsements thereon, is substantially the testimony offered against the validity of this claim.
A careful examination of the handwriting of the decedent, the body of the note and the three indorsements conceded to have been made by him, with the handwriting of the last indorsement, satisfies me that the last indorsement upon this note was not made by the testator, and is not in his handwriting. Without pointing out all of the differences, apparent from an inspection, between the handwriting conceded to be genuine and that in dispute, I think there is such a difference between them that it
There is nothing in this proceeding to show that the claimant ever exacted any payments on this note after the payment of interest on April 1, 1892, for six and one-half-years, although there is nothing showing that the testator was not able to pay such an indebtedness during his lifetime. And even upon the claimant’s theory, after the six and one-half years only one dollar and twenty-five cents was required to be paid, the balance being left until after the death of the testator, without any apparent cause so far as appears from the evidence in this proceeding.
I have only pointed out a few of the manifest differences in the conceded handwriting of the testator and the indorsement in controversy, but a, careful examination of the note and the indorsements, and the circumstances surrounding the claim, con
It has been the settled policy of the courts, in dealing with claims that are withheld during the lifetime of the alleged debtor, and presented after the party alleged to be liable is no longer capable of disputing the claim, to disallow the claim unless it is established by the most clear and convincing evidence. 85 N. Y. 139; 17 N. Y. Supp. 723; 140 N. Y. 633; 75 Hun, 4; 85 id. 487; 91 id. 89; 1 App. Div. 184; 20 id. 121; 28 Misc. Rep. 338.
The indorsement, having been made after the note had outlawed, and at a time when, if true, it would inure to the benefit of the claimant, is not competent evidence to show such alleged payment unless the indorsement was in the handwriting of the testator, or shown to have been made with the privity of the said testator. Roseboom v. Billington, 17 Johns. 182; Mills v. Davis, 113 N. Y. 243.
If I am right in my conclusion that such indorsement is not in the testator’s handwriting, then it furnishes no evidence of a payment to take the claim out of the Statute of Limitations, as there is no evidence whatever of a payment having been made upon the note, aside from the alleged indorsement.
It follows, from the foregoing conclusions, that the claim is
Findings may he prepared in accordance herewith.
All questions in regard to costs are reserved until entry of the decree settling the accounts herein.
Decreed accordingly.