Lerner v. BischoffLerner v. Bischoff
The plaintiff, Andrew Lerner, alleging that Mrs. Leon Bischoff and Miss Leona Bischoff, the widow and daughter of the late Leon Bischoff, have accepted his succession simply and unconditionally, brings this suit against them as his heirs on a promissory note alleged to have been exeсuted by him on September 15, 1930. for the principal sum of $300, and subject to a credit of $75, or a balance of $225. The note, plaintiff allegеs, has been lost. A number of defenses were made below, but the only one with which we are now concerned is that which is based upon Aсt No. 207 of 1906, as amended by Act No. 11 of 1926 (page 11), and 'which reads, in part, as follows: “That parol evidence shall be incompetent and inadmissible to prove any debt or liability upon the part of a party de *823 ceased, if a suit upon the asserted indebtedness or liability shall have been brought within a delay of twelve (12) months after the death of the deceased.” Section 2.
It is admitted that this suit was instituted morе than 12 months after the death of Leon Bisehoff, and when, upon the trial of the case, plaintiffs counsel sought to' prove the existеnce of the note by parol, objection was made to the admissibility of the testimony and sustained. The correctness of that ruling is the only question at issue.”
The contention of counsel for the plaintiff is that the prohibition against the use of pa-rol testimony to establish a debt of deceased, as expressed in Act No. 207 of 1906, as amended by Act No. 11 of 1926, does not extend to the proof of the evidence of the existеnce of the debt, making a distinction between the fact to be proved (factum proban-dum) and the means of proving the fact (fаc-tum probans).
Our attention is called to the well-known Myra Olark Gaines litigation (Succession of Clark),
In other jurisdictions similar cases under similar statutes have been decided, and it has been uniformly held that to permit proof of the existence of the lost instrument by parol evidence would defeat the purpose of thе statute.
In Ehrenworth v. Putnam (Tex. Civ. App.)
The court said: “Plaintiff testified that his contraсt with Ehrenworth existed in correspondence between him and Ehrenworth, and that the letters had been lost; and his testimony as to such correspondence, and the fact that Ehrenworth contracted with him thereby to effect a trade of his stock of goods for lands, and agreeing to pay the commission, was objected to because it related to a transaction between witness and the decedent. The only ground upon which his testimony could with any semblance of reason be claimed to be admissible is the one that the cоntract was alleged to have been in writing and lost, and plaintiff was undertaking to prove by parol the existence arid contents оf the lost instruments, and not a transaction. If this view be sustained, it would be within the power of the survivor of a transaction to circumvent the statute and defeat its purpose. To us it is plain that, if the transaction is alleged to have existed in a writing or writings between the parties, prоof of the writings is proof of the transaction, and this cannot be made by the testimony of the survivor. Martin v. McAdams,
See, also, Kindel v. Kindel (Tex. Civ. App.)
Prom the Pelz Case we quotе the following: “Relative to the issue submitted in the second question, the plaintiff was permitted to give oral testimony of the contents of а letter he claimed he had received from Anna Pelz while he was in Minneapolis, and which letter he said was lost, to the effect that therein she stated that, if he would come back and stay with her as long as she lived, she would give him her property. The reception of such evidence was error, as the trial judge later
properly
concluded
in
his opinion in the case. Jackman v. Inman,
We can conceive of no useful purpose in the establishment of the existence of an obligatiоn unless it be in connection with and in support of a claim for a debt by the creditor of the obligation against the debtor, and, certainly, that is the purpose here, for the suit itself is a demand against the heirs of a deceased person for an amount claimed tо be due under a written lost instrument executed by the deceased, and that is precisely what the statute declares may not be done by secondary evidence when the suit is brought more than one year after the death of the debtor.
Our conclusion is that the trial cоurt, in excluding the evidence offered, was correct, and consequently, and for the reasons herein assigned, the judgment appealed from is affirmed.
Affirmed.