Estate of Eshelman

Opinion,

Mr. Justice Green:

If the bonds given by the decedent to his sisters were founded upon an actual, bona-fide indebtedness, previously due by him to them, the estate of the decedent was insufficient for the payment of his debts, and all other questions raised upon the record become unimportant. The auditor has found in an elaborate and exhaustive opinion that the bonds are all legitimate debts of the testator, and entitled to come in on the fund .for distribution. In this finding the learned court below has concurred, and has confirmed the auditor’s report. It is true that the auditor admitted the evidence of the holders of the bonds, and was of opinion that it was competent testimony. We have much doubt as to the correctness of that ruling, but as, in our opinion, the other and perfectly legitimate testimony fully supports and sustains the finding of the auditor, without the testimony of the obligees, it is not necessary for us to decide upon its admissibility, and our decision will be based upon a consideration of the other evidence only.

The transaction in which the indebtedness of the decedent to his sisters arose, was the conveyance of the farm owned by the father of the decedent and his sisters, and which descended to them all equally at their father’s death. In 1861, the mother and sisters of the decedent by a deed dated March 20, 1861, formally conveyed to him the fee-simple title of all of them to this farm containing one hundred and thirteen acres or thereabouts. This deed was given in evidence by the appellant, and it recited an agreement between the widow and heirs of Jacob Eshelman, deceased, that John Eshelman, one of them, should take the farm at twelve thousand dollars, deducting therefrom two sums of $705.61 and $2,884.79§, respectively, charged on the land in favor of the widows of John Moltz and Jacob Moltz. One third of the balance of said valuation money was to be charged on the land for the use of the widow of Jacob Eshelman, during her life, and the principal to be paid at her death. The deed further recited that, in consideration of the payment of $799.58 to each of his sisters, and of the further sum of $2,808.20 at the death of their mother, the land was conveyed to John Eshelman. The deed contained the usual acknowledgment of the receipt of $799.58 paid to each of the sisters, and a release of all claims by the widow and sisters to the land. A release was also given in evidence dated Juno 16, 1866, after the death of the widow, of all claims to the sum of $400.46, being the share of each in the dower charge of the widow, who had then died. There was no proof of the actual payment of any money at the time the deed and release were given, and outside the testimony of the interested witnesses, which is rejected from the present consideration, there is no proof of the actual payment of any of the money due the sisters at any time. There is no question of the statute of limitations, or the presumption of payment, arising in the cause, because the decedent, in the most solemn and absolute manner possible, not only admitted and acknowledged his indebtedness to his sisters, but he expressly declared in his will the fact of his indebtedness to each of them, stated the amount due to each, and positively directed his executor to pay the several amounts mentioned to each of them within two years after his death; and, in addition to this, he formally executed bonds to each of his sisters for the amounts due to them, respectively, payable on April 1,1888, with two per cent annual interest, and directed his executor to deliver the bonds after his death.

The presumption of actual payment arising from the receipt contained in the deed, and from the release, is not a conclusive presumption, and may be rebutted by parol proof: Byers v. Mullen, 9 W. 266; Watson v. Blaine, 12 S. & R. 131; Hamsher v. Kline, 57 Pa. 397; Horton’s App., 38 Pa. 294; Megargel v. Megargel, 105 Pa. 475. In the last case, a mortgagee had given to the mortgagor a receipt for five hundred dollars “in full satisfaction of the mortgage.” We said, Sterkett, J.: “ That was, of course, evidence of payment, but it was not conclusive of the fact. It was susceptible of explanation or of direct contradiction: Foster v. Beals, 21 N. Y. 247, 249; and, in point of fact, it was clearly and satisfactorily shown by the testimony of several competent witnesses that no part of the mortgage debt had ever been paid. Admissions of the mortgagor to that effect, made at different times after the date of the receipt, down almost to the time of his death, were clearly proven. The receipt which was the sole evidence of payment was thus successfully rebutted, and hence the referee was fully justified in finding the fact of non-payment, as above stated.”

In the present case, there was an abundance of this kind of testimony from disinterested and perfectly credible witnesses. John Wolf said: “ John Eshelman came to me the same year his father died.....He said he was going to move back on the big farm, his father’s farm. I said, ‘ I guess not.’ Then he said, ‘ I have easy terms to buy it.’ He said the agreement between him and his sisters was that they were to leave their shares in the farm. He told me they were getting equal shares; that he was to pay them what he got. That was all at that time.....He told me once or twice while I lived on the little farm, when we settled, that he was getting in his money to pay off his sisters’ interest; and he told me once or twice afterwards, when he got money from me, that he wanted it for that purpose. This last conversation was four or five years after I had gone off the little farm.” Jacob C. Wolf, a brother of John Eshelman’s first wife, said: “ Several times I had conversation with John Eshelman about owing his sisters, in 1881 and 1882 and thereabouts. He had my money, borrowed money from me; and at first I was not particular about a judgment note or anything of that kind, and after it got up a little way 1 told him I would like to have a judgment note. He said he would not give a judgment note to any person. He said he had money from other people, and he said he had his sisters’ money, and they had no notes, and he said, if his word was no good, paper was no good. The last time he spoke to me about this was in 1883.....He said he owed his sisters, and had their money without notes.” Mrs. Catharine Bixler said: “I had a conversation with John and his wife. She said when she wanted to have anything fixed up in the house he said, wait until he has the sisters paid out, then he will live, too, like others. . . . The conversation was about ten years ago,” (1878.) Jacob Stouffer said: “In March, 1883, John Eshelman and I were going to the bank at Harrisburg. I indorsed for John. Coming home he got to telling me in regard to his confidence in regard with his sisters. He also told me that when he settled up his pappy’s estate that his sisters gave a release without any papers, and he told me that he wanted to use a part of this money for some of the sisters.....He told me he would sell the large farm, and pay off his sisters.” As John Eshelman died in October, 1885, this conversation occurred about two years before his death. David Eichelberger said : “ When we butchered at Lantz’s, I talked to him about fixing up his farm. I was there, Mr. Lantz, and John Eshelman. He (John) came there during the day. I asked why he did not fix up his buildings ; that they would sell better. , He said he owed his sisters too much money; he couldn’t fix it.”

It must be remembered that these declarations were not offered for the purpose of creating a debt, or for the purpose of taking the case out of the statute of limitations. They were offered to rebut the presumption of payment arising from the receipt in the deed, and from the release; and hence their admissibility did not depend upon their being made directly to the creditor or to his authorized agent. They could be proved by the testimony of any one who heard them.

We are of opinion that the auditor was fully justified in finding the fact that John Eshelman was indebted to his sisters upon the original conveyance of the farm; that he had never discharged that indebtedness, and that there was therefore good and valuable consideration for the bonds in question. It was very evident that he was in the habit of borrowing money, and had use for it constantly. He owed a number of notes for quite considerable amounts at the time of his death, and the presumption of payment of his debts to his sisters is thereby much weakened. Against the manifest weight of the testimony on this subject, his declaration to the scrivener, that he did not owe his sisters, is of but little consequence. He might not have desired to admit the fact of so much indebtedness to one who is not shown to have been upon any particular" terms of intimacy with him. But, whatever his motive may have been, he could not talk his sisters out of their rights as creditors, in their absence, by such a declaration to a stranger.

It is impossible to go into a close calculation of the exact amount due when the bonds were given, because there are no precise data on the record from which it could be made; but, as he had a large amount in his hands upon the settlement of his administration account to which his sisters were equally entitled with, himself, in addition to the valuation money of the land, and as the sisters, who could have told what they had received, were objected to by the appellant, and as the mere accumulations of interest would constitute a large sum, we cannot make any inference, against so solemn an instrument as a bond, that the whole amount was not owing. The auditor has found that the bonds were given for full consideration, and no error in that finding has been clearly shown. In view of the conclusions we have reached, the other questions raised upon the record are óf no consequence, and require no discussion.

The decree of the court below is affirmed, and appeal dismissed at the cost of the appellant.