Mueller's Estate , 159 Pa. 590 ( 1894 )

Opinion by

Mr. Chief Justice Sterrett,

As was well said in Carpenter v. Plays, 153 Pa. 432: “ Claims against a dead man’s estate which might have been made against himself while living, are always subjects of just suspicion, and our books, from Graham v. Graham, 34 Pa. 475, to Miller’s Ap., 136 Pa. 239, 249, are full of expressions by this court of the necessity of strict requirement of proof, and the firm control of juries in such cases.” It was, therefore, incumbent on appellant, asserting his right as a creditor of the estate to participate in the distribution, to substantiate his claim by competent and sufficient evidence. We think he failed to furnish the necessary proof. The learned auditing judge found against him, and that finding was approved by the court in banc. We are now asked to reverse the finding of fact thus approved. To warrant us in so doing, especially in such circumstances as are presented in this case, it is not sufficient to show that grave doubts exist as to the correctness of the adverse finding; clear error therein must be shown.

It is conceded that, shortly after decedent’s marriage to appellant’s daughter, the former bought the house and lot, from the sale of which the fund for distribution was raised. At the settlement for that purchase, superintended by William E. Knowles in the office of the German American Title & Trust Company, on or about the 5th of November, 1888, appellant handed Mr. Knowles $1,200, which was used in'payment of the purchase money; but whether this was the money of appellant or of the decedent, or whether it was a loan or a gift, there is no competent evidence. It is claimed that the fact of producing and handing over the $1,200 by appellant, and its use as part of the purchase money for the house, to which the decedent was about taking title, made out a prima facie claim against the estate; but we cannot so regard it. Nor do we think it was competent to supplement such evidence by proving that appellant, when he handed the $1,200 to Mr. Knowles, said he was loaning same to his son-in-law to assist him in buying the house, etc., unless it was also shown that this was said in the presence and in the hearing of the decedent. The testimony of Mr. Knowles not only leaves it in doubt whether the decedent was even present when said statement was made by appellant; but, aside from that, there is nothing in his testimony that would warrant the inference that, if present, decedent heard and by his silence impliedly assented to the correctness of the statement so made. In answer to the question, whether he was sure decedent “ was there at that time,” Mr. Knowles answered : “ I could not say positively; there are so many people there in the morning in the settlement department, eight or ten a day.”

There was no error in not considering appellant’s statement to Mr. Knowles as part of the res geste. It had no necessary connection with the settlement, the business then being transacted ; nor does it appear that appellant was there for any other purpose than that of handing over the $1,200 for his son-in-law, to be applied as part payment of the purchase money. Any statement he may have then volunteered to make, not in the presence, or not in the hearing of his son-in-law, cannot in any proper sense of the term be regarded as part of the res gestee. It was rather in the nature of a self-serving declaration, and therefore not entitled to any consideration as evidence in support of appellant’s claim against the estate: 1 Whart. Ev., see. 259.

For these and other reasons given by the court below we are satisfied the conclusion there announced is correct, and the decree should be affirmed.

Decree affirmed and appeal dismissed, with costs to be paid by appellant.