146 N.Y.S. 922 | N.Y. App. Div. | 1914
The testator died in the island of Cuba on the 12th day of January, 1904, a resident of the State of Mew York, leaving a last will and testament which was duly admitted to probate on March 13, 1911, and by which he appointed the petitioner his executor, and on the 4th of May, 1911, letters testamentary were issued to the petitioner. On June 17, 1911, the executor, Ricardo Marganes, instituted a proceeding under section 2719 of the Code of Civil Procedure to recover from the estate of his testator a claim amounting to $3,330 and interest. To prove this claim the petitioner presented an instrument which was proved to be in the handwriting of the testator and was dated June 2, 1897. That instrument admitted a loan by the petitioner to the testator on July 15, 1895, of $1,060 cash, for letter of credit $300, cash loaned on March twenty-fourth $40, check for payment of taxes in Louisiana $250, and interest on those amounts at ten per cent, and this account was followed by this statement: “I acknowledge to be indebted to Mr. Ricardo Marganes in the sum of One thousand nine hundred and twenty-two dollars which amount I promise to pay him from the proceeds to be obtained from the properties which appear to be in my name in the Parish of Livingston, State of La.
“Mew York, June 2, 1897.
“ (Signed) CRISTOBAL N. MADAM.”
The only evidence as to the custody of this instrument appears in the testimony of the petitioner’s attorney. He testified that he received this instrument from the petitioner personally in February or March, 1913. The petitioner, being the executor of the testator, his possession of the instrument two years after the letters were issued to him was not evidence that the petitioner had the instrument in his possession prior to the date of the death of the testator, or that the testator had ever delivered it to him, so that it could be the basis of a contract between the testator and the petitioner. The surrogate was clearly right in the conclusion that this instrument could
The decree should be affirmed, with costs.
Clarke, Scott and Dowling, JJ., concurred.
The decree appealed from expunged the- claim filed by the executor against the estate. Several questions have been argued but the sole question of importance is whether the evidence was sufficient prima facie to prove that a debt existed. The only evidence of indebtedness was a writing, the' body of and signature to which was in the handwriting of the deceased.
This instrument is headed “Cristobal N. Hadan to R. Narganes,” following which are three items of cash loaned, with interest, and one item “to check for payment of taxes in La.” To this is added an acknowledgment of indebtedness for the aggregate of the several items preceding, and a promise to pay the same from the proceeds of certain lands when sold, which lands were thereafter sold by the deceased. No evidence whatever was offered to show that any loans had in fact been made by check or otherwise, nor did it appear when or how the executor became possessed of the writing. The executor rested his case on proof of the handwriting of the deceased and on the presumption which he claimed arose from his possession of the writing, which he produced and put in evidence. No evidence was offered on behalf of the estate.
I think the claim was properly rejected. The cases in which the question now flatly presented has been considered are not decisive, because in each there was some evidence of extrinsic facts bearing upon the question of delivery, but the language of the courts affords support to a conclusion adverse to the sufficiency of the evidence to prove a debt in the present case. (Matter of Humfreville, 6 App. Div. 535; Cowee v. Cornell, 75 N. Y. 91; McMahon’s Estate, 132 Penn. St. 175; Gambie
The decree should be affirmed, with costs.
Ninth finding reversed and decree affirmed, with costs. Order to be settled on notice.