190 A.D. 891 | N.Y. App. Div. | 1919
Since the note for $400 given by the appellant to the testator was dated January 6, 1890, and was payable one year after date and the note for $85, given by the appellant to the testator was dated April 4, 1890, and was payable four years after date, the former was past due twenty-eight years and the latter was past due twenty-four years at the time of the death of the testator. Under the doctrine laid down in Bean v. Tonnele (94 N. Y. 381, 386), the presumption is that these apparent obligations are stale demands, and, as we discover no circumstance disclosed in the evidence either to rebut or fortify this presumption, we disapprove and reverse the finding of the court below to the effect that these notes were not paid nor settled in the lifetime of the deceased. It does not appear that the attention of the learned surrogate was called to this feature of the ease. That part of the decree appealed from is reversed and the matter remitted to the Surrogate’s Court to be proceeded with in accordance with this memorandum.
