86 So. 667 | La. | 1920
Lead Opinion
Martin H. Manion, son and executor of Martin Manion, deceased, filed an account of his administration. John E. Manion, brother of the executor, opposed an item of $5,000 which appeared in the account as a debt due by the succession to the succession of William .J. Manion, a deceased brother of the executor and of John E. Man-ion.
The debt is evidenced by the testimony of the executor and by the following document:
“5,000.00 of this amount is the property of Wm. J. Manion, or its equivalent of 5,000.00 value as quoted, or its worth in the open market of five shares Little Rock R. R.
“[Signed] M. Manion.”
Manion, father, had been retired from business for some years when in January, 1916, wishing to have something to occupy his mind, he expressed the desire to resume an active part in the management of the business of Manion & Co., a plumbing supply concern in which he held one Or two shares of stock, and of which his two sons, Martin H. and Wm. J., were the managers and large stockholders. William suggested to the old gentlemen that he take out $5,000 of stock nominally for himself but in reality for William, to be paid- for by William and this .was done; William turning over $5,000 of the bonds or shares of stock to the Little Rock Railroad Company to his father, to be sold and the proceeds used in paying for the $5,000 of stock thus to be taken out. The matter was discussed for several days. The executor testifies positively to all this, and that the $5,000 was never reimbursed or returned in any way to William. One year thereafter William died, and 10 days after William the father died. The entire burden of the management of the business fell upon Martin H., who besides was carrying on a considerable law-and notarial business. Martin H. Manion caused himself to be appointed administrator of the succession of his brother, and as notary made the inventory of -the succession. The claim now in question was not mentioned in the inventory, nor thereafter in the course of the settlement of the succession. In May, 1917, Martin H. Manion filed a provisional account as testamentary executor of liis father’s estate, and made therein no mention of this claim. He says that he had forgotten all about the transaction, and that he only remembered it some two months before the filing of the account now being opposed, in September, 1918, when his .memory was refreshed, or revived, by his - coming across the document herein-above transcribed, which he found in his father’s drawer of the safe of Manion & Co.
There is no denial of the genuineness of this document. The contention is that it does not substantiate the claim; that it fails to do so even when read in connection with the testimony of the executor.
The verity of this testimony is not expressly challenged: only its sufficiency, but every little circumstance that might tend to discredit it is dwelt upon and put in as strong a light as possible. We find no sufficient reason for doubting its entire candor. It is as nfuch against the pecuniary interest of the witness as against that of his brother; each must pay one-third of the debt if it is due, . and, whatever ill feeling the witness may entertain towards his brother, it could hardly induce him, a lawyer and a man of high standing, to deliberately perjure himself.
While it may be strange that the witness should have thus entirely forgotten this transaction and then later on remembered it so vividly, even in its details, very much stranger freaks of memory' than this are not so very uncommon. See Moore on Facts, Chap. Memory, Rubric, Memory Revived or Refreshed, § 833 et seq. The question cannot be as to whether the transaction in question did take place, for the document is an irrecusable witness to that fact. The question must be only as to whether there was a reimbursement; and on that point the testimony of the witness, as much against his own interest as that of his brother, is positive. With the stroke and mental bruise of the two deaths and the burden and oppression of the entire business, aggravated by the complications incident to the war, Martin Manion may well have lost memory of the said transaction. And all of us are too familiar with incidents of revived memory to wonder at an occurrence of the kind. We think our learned brother below erred in rejecting the claim.
The judgment appealed from is set aside in so far as it sustained the opposition to the item “Due estate of William J. Manion, $5,000,” and condemns the succession to pay costs, and said opposition is now rejected; and the said judgment is otherwise affirmed. The costs of this appeal and of the said opposition to be paid by the opponent, John E. Manion.
Rehearing
On Rehearing.
On reconsideration of this case, we have concluded that the claim of $5,000 as a debt due to the succession of William J. Manion, deceased, should not be allowed. Our conclusion rests not upon a lack
The document, purporting to bear the signature of the deceased, Martin Manion, on which the executor proposes to pay $5,000 to the succession of his deceased brother, William J. Manion, is in the following words and figures, viz.:
“5,000.00 of this amount is the property of William J. Manion, or its equivalent of 5,000.00 value as quoted or its worth in the open market of five shares Little Rock R. R.”
Act No. 207 of 1906, p. 861, declares:
“That from and after the promulgation of this act, parol evidence shall be incompetent to prove any debt or liability upon the part of a party deceased, except it consist of the testimony of at least one credible witness of good moral character besides the plaintiff; or except it be to corroborate a written acknowledgment or promise to pay signed by the debtor; or unless an action upon the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.”
In the case of Spillman v. Spillman, 147 La. 47, 84 South. 489, on rehearing, construing the statute of 1906, we held that, even though the action on the asserted indebtedness was brought within the delay of 12 months, parol evidence was incompetent to support the claim, unless such evidence consisted of the testimony of a credible witness of good moral character, besides the plaintiff, or was offered to corroborate a written acknowledgment or promise to pay signed by the deceased. On the same principle, we must hold that, if the claim has not been asserted, or the action brought, within the delay of 12 months, parol evidence is incompetent, even though it be the testimony of a credible witness of good moral character besides the plaintiff, or be offered to corroborate a written acknowledgment or promise to pay signed by the deceased.
The writer of this opinion concurred in the decree rendered in the case of' Spillman v. Spillman, but not in the opinion that the expression, in the Act 207 of 1906, “or unless an action upon the asserted indebtedness shall have been brought within a delay of twelve months,” must be read as if it were “and unless an action,” etc. An analysis of the language of the statute shows that the use of the word “or,” instead of “and,” was only a matter of style of expression. The word “or” is used because the expression is an affirmative, not a negative, expression. What the statute says is that parol evidence shall be excluded in either one or the other event; i. e., either if the parol evidence be not of one of the two classes mentioned, or if the action be not brought within the year. We are informed by the precise language of the title of the act that its object or purpose is “to limit the admissibility of parol evidence to prove any debt or liability of a party deceased.” We would absolutely prevent the accomplishment of that object or purpose, if we should construe the law as meaning that the admissibility and competency of parol evidence shall be “unlimited” to prove a debt or liability of a person deceased, provided “an action on the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.” Such a construction would actually facilitate the proving of a debt against a deceased person, by parol evidence. It would make parol evidence admissible and
“Contracts or agreements above five hundred dollars in value, must be proved at least by one credible witness, and • other corroborating circumstances.”
Although the use of the word “and” instead of the word “or,” in the third proviso of the Act 207 of 1906, might have been more appropriate, we are sure of the meaning of the law; and we would not be justified in construing it so as to give it an effect contrary to that which the Legislature intended it to have.
Appellant pleads that the Act No. 207 of 1906, if construed to be a statute of limitation or prescription against the admissibility or competency of parol evidence, would be broader or more comprehensive in its text than in its title, and would therefore be violative of article 31 of the Constitution. But we do not find it so. The title of the act is “to limit the admissibility of parol evidence to prove any debt or liability of a party deceased.” One of the so-called limits put upon the admissibility or competency of parol evidence, in the text of the act, is that the action shall have been brought within a delay of 12 months after the death of the debt- or. Such a limitation is not contrary to or beyond the object expressed in the title of the statute.
In this ease, no action was brought on the asserted indebtedness within the year. Therefore parol evidence was incompetent, ,even though it was the testimony of a credible witness of good moral character, other than the plaintiff or claimant, and even though its purpose was to corroborate what purported to be a written acknowledgment signed by the deceased.
The judgment appealed from, rejecting the claim of the succession of William J. Manion, deceased, is affirmed, at appellant’s cost.
See dissenting opinion of PROVOSTY, J., 86 South. 669.
