108 So. 133 | La. | 1926
Mrs. Margaret Blanche Mereno, widow of Joseph Pilie, died in the city of New Orleans on April 9, 1924. Her succession was opened, and an administrator was appointed. During the course of the administration Miss Marie Pilie, a daughter of the deceased, claimed to be a creditor of the succession for money loaned by her to the deceased, in small amounts, during a period of nearly nine years; the total amount loaned, according to her contention, aggregating $1,238.66. She contends that these loans were made to assist her mother in paying a mortgage, granted by the latter on her home to a *86 building and loan association, for the purpose of obtaining funds to make necessary repairs on the property mortgaged. Miss Pilie presented her claim to the administrator, but he refused to recognize it. When the latter filed an account of his administration, Miss Pilie's claim was not carried on the account. She therefore filed an opposition to the account, praying that it be amended so as to carry her claim for the full amount of $1,238.66, with 5 per cent. per annum interest on each loan, going to make up said sum total, from the date each was made. The administrator filed an answer to the opposition, denying all of the allegations thereof, and pleading against Miss Pilie's demand the prescriptions of three and ten years. It is this opposition that comes before us on an appeal from a judgment recognizing and enforcing, to its full extent, Miss Pilie's claim.
The evidence discloses that, with the exception of certain personal property, consisting almost entirely of household effects, and a lot in a cemetery, the only asset belonging to the deceased was her home. This property, that is, the home of the deceased, something over eleven years prior to her death, was greatly in need of repair. In order to obtain funds with which to make the repairs, the deceased borrowed the required amount from a building and loan association, and granted a mortgage on the property to secure the loan. At the time the mortgage was granted, Miss Pilie testifies that it was understood that she and the remaining children of the deceased were to assist their mother in paying the mortgage by lending her amounts from time to time with which to pay her dues in the building and loan association. The remaining children, the trial judge found, and we think correctly so, were unable, when the time came, to assist their mother in discharging the mortgage. The burden, therefore, fell upon Miss Pilie. She testifies that out of her wages she advanced her mother, from time *87 to time, or practically from month to month, during a period of nearly nine years, the amounts necessary to enable her mother to pay her dues in the building and loan association. With one exception it appears that the amounts so advanced ran from $12 to $13 a month. Miss Pilie testifies that it was understood between her and her mother that the latter would repay her the amounts advanced in the event she should sell the property, and, in the event she did not sell it, then that she should be repaid at her mother's death out of the latter's estate. She also testifies that, as she made the loans, or soon thereafter, she took receipts from her mother, showing, in each instance, the amount advanced. She has produced a number of receipts, signed by her mother, showing in the aggregate the principal of the sum which she claims. These receipts, save as to amounts and dates, are in substance alike. In order to show their tenor and substance we shall quote one of them. The one which we have selected for that purpose appears to have been the first given, and reads as follows:
"1/13/13.
"Received from Marie Pilie this day thirteen dollars to pay Union Homestead Association on money borrowed for repairs at 1240 N. Villere St.
"$13 no/100. [Signed] Blanche Pilie."
One of the contentions of the administrator is that the proof is insufficient to justify the allowance of Miss Pilie's claim. This contention is based largely on the theory that Miss Pilie's claim exceeds in the aggregate $500, and that, under article 2277 of the Civil Code, a contract for the payment of money, not reduced to writing, which exceeds $500, must be proved by at least one credible witness, and corroborative circumstances. Preliminary to passing upon this contention, it may be proper to observe that the receipts held by Miss Pilie, by themselves, do not fully show an obligation to repay the money received, though they are so worded as to *88 strongly suggest the existence of such an obligation. Hence it cannot be said that the contract to repay was reduced to writing, for the receipts, by themselves, do not show such a contract or obligation. On the other hand, it may be said with plausibility that the amount claimed by Miss Pilie consists in reality of a number of loans, each less than $500, and it may be said that there is authority to the effect (Rossignol v. Triche, 28 La. Ann. 144) that, where the amount claimed consists of a number of items, none of them exceeding $500, the evidence of a credible witness, swearing that each item is due, is sufficient, though the aggregate of the items exceeds $500. However, aside from the observation last stated, and viewing the amount claimed as if it were one loan, still we think that the evidence adduced is sufficient to establish the loan. We so think, because the evidence of Miss Pilie, and she seems to be a credible witness, that she loaned the money to her mother is supported by the receipts. We think that the receipts support the evidence of Miss Pilie, because each shows upon its face that the money was received by the mother to pay the homestead association, or, in other words, to pay the mortgage granted by the mother on her home to obtain funds for its repair. This debt was the debt of the mother and not of the daughter. It cannot be said, we think, that the delivery of this money to the mother was a mere contribution by the daughter to the mother with no hope or expectation that the money would be repaid, for, if it were such, the mother hardly would have gone to the trouble of giving her daughter receipts for the amounts received during a period of nearly nine years, and the daughter hardly would have gone to the trouble of receiving and preserving the receipts, or of permitting her mother to go to that trouble. Our conclusion is, as was that of the trial judge, that the loan has been fully established.
We now reach the prescriptions of *89
three and ten years pleaded by the administrator. Article
The administrator also contends that the trial judge erred in allowing 5 per cent. per annum interest on each advance of money from the date the advance was made. In this *91
contention we think the administrator is correct. There was no written agreement to pay conventional interest. Such being the case, the only interest allowable is legal interest and such interest runs only from the date of the maturity of the indebtedness. Civil Code, art.
For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be amended by allowing interest on said sum, at the rate of 5 per cent. per annum, from April 9, 1924, until paid, and, as thus amended, that said judgment be affirmed, the costs of appeal to be paid by appellee.