49 Misc. 363 | N.Y. Sur. Ct. | 1906
The only controversy upon this accounting relates to the claim of Mrs. Walker, which the executor has rejected, and, by stipulation of the parties, pursuant to the provisions of chapter 595 of the Laws of 1895, is submitted for -determination upon the judicial settlement. This claim is based,'in part, upon a promissory note, of which the following :is á copy:
“ Limestone, April 7, 1903.
•“ 'One year after date I promise to pay to the order of - Hettie Walker Six Hundred Dollars.
“ Sam Pinkerton.
“ Value received with interest.”
The entire note, aside from the signature, is in the handwriting of the claimant; the body of the note and the signature are written with a blunt, soft lead pencil, the letters being dark and heavy; the words below the signature, “Value received with interest,” present the appearance of having been written with a hard, sharp-pointed pencil; the contrast is very apparent. It is suggested on the part of the executor that the appearance of this note is such that it was obligatory upon the claimant to show affirmatively that the words quoted were added beforé the delivery of the note. These words, although below the signature, are a part of the contract; the claimant so re
In seeking to establish this note as a valid obligation against
The general principle deducible from these somewhat conflicting authorities seems to be that, if the claimant is not content to rest his case upon the presumption, but gives affirmative proof to establish the consideration, no other consideration than that to which the evidence is directed will be assumed or presumed; 'and, if the preponderance of evidence shows such consideration to be legally insufficient, the presumption will not supply the defect.
The facts established by the claimant’s affirmative evidence bearing upon the question of consideration are to the effect that, during the final illness of decedent’s second wife, three or four years before 'the making of the note in question, the claimant, for a period of about two months, frequently visited the decedent’s family, assisted in doing the housework, and taking care of the wife, occasionally bringing her delicacies to eat. After her death, claimant furnished occasional meals ,at her home to the decedent. From time to time she assisted him in his correspondence, writing perhaps a dozen letters in all for him. On one occasion, the decedent, desiring to repay the sum
The other facts established by the evidence are substantially, as folows: The decedent died on the 27th day of September, .1904; he w'as survived by one daughter and one son and his widow, who was his -third wife; decedent’s first wife left him many years- ago; taking the daughter with her; the son is intemperate, worthless and dissolute; decedent, -at the time of his death, possessed a small amount of personal property, owned a •farm of about fifty acres; worth ten dollars an- acre, aside from the oil production thereon; this land had been leased by the decedent for oil purposes^ reserving one-eighth royalty; such royalty produced 'an income of practically forty dollars -a month; decedent was also a pensioner of the Civil War; receiving from that source eight dollars a month; he was honest, economical .and somewhat parsimonious, not accustomed to incur indebtedness to any great extent, and¡ prompt in making payment of what he owed; for many years prior to Ms death he does not 'appear to .have -been engaged in any business other than managing Ms small' farm, collecting hi-s oil royalties and pension.
The claimant is-, and for many years has been, a widow, having no property and no income aside from that derived from her labor and occasional keeping of boarders; she made her home with a neighbor living near the decedent; she does not appear to have possessed at any time any money or property to any considerable extent; from time to time the decedent furnished her with orders for trade at the store of Mr: Patón; friendly and intimate relations had existed for many years between the claimant and the family of -the decedent.
Since the claimant has not seen fit to rely upon the presumption, but has. removed -the lid and entered upon a general investigation of the facts and circumstances in search of a considera
Decreed accordingly.