191 A. 3 | Pa. | 1937
Argued January 25, 1937. Missouri A. Spohn, decedent, was raised from early childhood as a member of the family of appellee's wife. A close relationship existed between Mrs. Welsh and Mrs. Spohn, although there were no blood ties. Appellee was the decedent's agent in many financial transactions. Shortly after her death, her executor instituted this proceeding against appellee for an accounting and to compel delivery to the estate of certain bonds and repayment of $1,400 representing the proceeds of two of her checks payable to his order. Appellee, in his answer, admitted receipt of the checks and bonds. The check stubs introduced in evidence by appellant bore thereon the word "investment," written by appellee. The latter testified, over objection, that the stubs were so endorsed at Mrs. Spohn's direction to conceal knowledge of the disposition of the money from certain of her relatives, but that none of the proceeds were used by him or for his benefit. Instead, he testified that his money was a gift by Mrs. Spohn to his children to defray, in part, the expenses of their education. The answer as to the bonds recited that they had been returned by him to *574 the decedent. The executor offered a written statement submitted by appellee prior to the suit, which noted that the bonds had been given to his wife. Appellee testified, over objection, that the bonds were given to his wife by Mrs. Spohn, and Mrs. Welsh also testified to that effect.
In dismissing the bill, the court below held appellee competent to testify as to the checks, but that neither he nor his wife were competent witnesses as to the bonds. It was found as a fact that, inasmuch as the family of appellee's wife had raised decedent, the check proceeds were a valid gift to appellee's children and the bonds a valid gift to Mrs. Welsh.
Before considering the admissibility of the testimony, we will first take up the question of burden of proof. Here we have a decedent who during her lifetime issued two checks to her agent and gave to his wife some bonds which had formerly been entrusted to him. Appellant contends that in this proceeding for an accounting he may show delivery of the checks, the fact that the bonds were at one time the property of decedent and were placed in the hands of appellee as her agent — rest his case and say to appellee, "You must prove the disposition of the property, but your mouth is closed by the death of your principal; you cannot explain the transactions."
In a proceeding for an accounting or to recover bonds or other property alleged to belong to a decedent's estate, the burden of proof is on the representative of the estate to show by a preponderance of evidence that this property belonged to the decedent, and had been placed in the hands of the defendant who had a duty to account. This burden was upon appellant in the present case.
If the case had been submitted on bill and answer the court below would have been bound to find for appellee. He had filed a comprehensive answer completely explaining the charges in the bill. Appellant, to establish his right, read into the case those parts of appellee's answer admitting receipt of the property, but objected *575
to placing all the answer relative to the subject in evidence. This, of course, he could not do without opening the door to the full answer. Appellant has shown that the property was at one time in the hands of the decedent and its receipt by appellee as agent is admitted by his answer; but the answer goes further and denies that the property was converted to his own use or wrongfully withheld from the estate. Its disposition by him is there explained. Appellant cannot use that part of the answer which establishes appellee's receipt of the property and, at the same time, exclude from the record the portion which qualifies and explains the circumstances under which the property was received and how it was disposed of. In Knapp v.Griffin,
Appellant also offered in evidence a statement of the agent to the executor, given before the bill was filed, showing possession of the bonds by him, but contends that the notation thereon showing a gift of them to Mrs. Welsh should not be accepted as evidence, though this fact was urged by appellant as being a contradiction of the answer. The statement and answer are not inconsistent for the former shows the ultimate disposition of the bonds. However, striking out the testimony of appellee with the answer and the statement as offered, the evidence to support the bill would be reduced to the offer of the check stubs referred to above. This would *576 not be sufficient to sustain the action. The stubs, without more, ordinarily would impose no liability to account; nor would the additional word "investment" on the stubs. The latter, apart from authorship, was subject to many interpretations. Even if the statement as to the bonds was admissible without explanation, the evidence is likewise insufficient to show the retention of property belonging to decedent. The difficulty with appellant's case is that in attempting to limit the effect of the answer and the statement he deprives himself of the right to use any part of it. Strip the case of the evidence complained of and appellant did not meet the burden of proof.
Before dismissing the subject of the burden of proof, it is well to here note that it is not governed by the old equity rule that a responsive answer denying the allegations of the bill of complaint, imposes the burden upon the complainant to disprove it by the testimony of two competent witnesses, or by that of one witness where there are corroborative circumstances. The Act of May 28, 1913, P. L. 358, Sec. 1, provides otherwise: "Hereafter all bills and answers must be sworn to; and the rule in equity that the averments of a responsive answer must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances equivalent to the testimony of another witness, in order to entitle plaintiff to a decree is hereby abolished as to proceedings hereafter to be begun." Schwebel v. Wohlsen,
In considering the evidence submitted by appellee and its competence, the controlling factor is clause (e), section 5, of the Act of May 23, 1887, P. L. 158, the purpose of which is obviously to prevent the injustice which *577
might flow from permitting the surviving party to a transaction with a decedent to give testimony thereon favorable to himself and adverse to the decedent, which the latter's representative would be in no position to refute: Karns v. Tanner,
It is apparent in the check transaction that appellee acted merely as agent for the decedent to pay over the money to his children. His answer and testimony denies that he received any part of it himself; it was so found by the court below. Since he merely acted as the conduit through which the gift flowed to his children he does not have any disqualifying interest in the proceeds of these checks adverse to the decedent's rights. A similar situation arose in Taylor's Estate,
The fact that the gift here was to the children of appellee would not establish a disqualifying adverse interest in him. The close relationship between the witness and the beneficiary was not sufficient to make his interest adverse to that of decedent. (See Edmundson's Estate, *578 supra.) It merely affected credibility. See Dillon's Estate, supra.
A different problem is presented with respect to the bonds which were given by the decedent to the wife of appellee. The wife, as the surviving party to the transaction with decedent, is, by her assertion of ownership of property claimed by the decedent's personal representative, incompetent under the cited clause of the Act of 1887. Her testimony was properly disregarded by the court below. Although receiving no individual gain from the transaction, the husband is also an incompetent witness under the Act because of the identity of his interest with that of his wife. The leading case isBitner v. Boone,
Such disability may be waived if the incompetent party is called by the decedent's representative and questioned as to pertinent facts occurring prior to the death of the decedent. See Forrester v. Torrence,
If nothing further had been done by appellant, however, appellee would still have been incompetent to testify to the gift from the decedent to his wife, because it formed no part of his agency. His interest in the bonds, as an agent, terminated upon his delivery of them to the principal. What she did with them thereafter was no concern of his in that capacity, and is not properly a part of his account. But this incompetency as to the gift by Mrs. Spohn to Mrs. Welsh was also waived by appellant's introduction in evidence of the statement made by appellee that the bonds were given to his wife. This raised an apparent conflict with his answer and required an explanation. It would be contrary to all principles of justice to permit the introduction of such a bald statement by appellee to refute his answer without giving him an opportunity to explain its meaning. Appellant, having availed himself of a statement made by appellee as to a transaction occurring prior to the death of decedent, made him competent to testify in full as to that transaction. Consequently all of appellee's testimony relating to the bonds should have been admitted. The testimony of his wife was properly excluded.
Appellant was bound to sustain the ordinary burden of proof which rests upon complainants. In Shingle v. Smyth, Henry andKirkbride,
At the trial, in the opinion of the court below, and in the argument before this court much stress was placed upon the rules concerning the burden of proof where the defendant in an action at law or equity sets up a gift from the decedent to himself as a defense against the assertion of a right to the property by the latter's representative. These cases are not applicable to the present controversy. Appellee is not being sued as the donee of this property, nor is it alleged as a defense that a gift was made to him of the property in question. He is being sued as an agent to account for property of his principal entrusted to his care. He does not seek to invoke any presumption of gift from his possession of the property. This distinguishes the case from Goslin v. Edmunds,
The finding of the court below that the gifts by Mrs. Spohn to appellee's wife and children were valid was not necessary to a decision of the case as appellee need only prove that he has accounted for the property. However, to corroborate the accounting appellee showed to the satisfaction of the court below that the $1,400 was a gift to his children who received its benefit, and that the bonds were a valid gift to Mrs. Welsh by the decedent. The relationship between these two women was so close, that it partook of many incidents of a true family relationship sufficient to establish motive for the gift. In the absence of proof of explanatory words accompanying the voluntary delivery of the bonds an intention to give may be presumed. There was the outstanding fact that the bonds were in the possession of Mrs. Welsh when Mrs. Spohn died, and had been for more than a year. Possession is of probative value in a contest of *581
ownership depending on the circumstances of the case. It is true that ordinarily the burden of proving a valid gift is on the alleged donee, but in Yeager's Est.,
Decree affirmed at appellant's cost.