Gilmor's Estate

Opinion by

Mr. Justice McCollum,

Three questions are raised by this appeal. They are: [1) Whether the learned court below erred in refusing to award to the appellant the value of the four per cent government bonds which he claimed belonged to the estate of Eliza Gilmor, deceased; (2) whether it was error to calculate interest at four per cent on the 150,000 secured by John Gilmor’s note under date of April 1, 1889; and (8) whether error was committed in the refusal to award to the appellant the amount of the mortgages and judgments found in the wallet labeled in John Gilmor’s handwriting “ Eliza Gilmor,” and designated by the learned auditor in his report as exhibit 11J.”

From the inventory of the personal property of John Gilmor, filed December 28, 1889, we learn that the face value of the government bonds held by him was $60,000, and that with the accrued interest and premium they were then worth $72,400. It is claimed by the appellant that although these bonds were in John Gilmor’s name, Eliza Gilmor’s money to the amount of $50,000 was used in the purchase of them, and that her estate is therefore entitled to receive from the estate of John Gilmor the sum which bonds of the face value of $50,000 were worth at the time of the inventory. It will be noticed that this claim assumes that the bonds were bought at their face value, and that there is nothing on this record which shows when they were bought or the price paid for them. In the absence of evidence on this point the fair presumption is that the amount paid was their market value at the time of the purchase. As there was no fraud or bad faith in the transaction, and it does not appear that they were bought for less than they were appraised at in December, 1889, it follows that if the claim is valid in other respects the most that can be recovered upon it is their face value, $50,000, with interest from October, 1889, and as that amount was awarded to the appellant by the learned court below, on the theory that the money invested in the bonds was a loan to John Gilmor for which he gave the note above mentioned, it seems to be unnecessary to further consider this branch of the case. But is there any merit in the claim that Eliza Gilmor was the owner of five sixths of the bonds held by her brother John ? The only evidence to support it is the memorandum made by him on his note to her for $50,000. The learned auditor, reading the memorandum in the light of the surrounding circumstances, held, with the approval of the learned court below, that it, considered in connection with the note on which it was indorsed, was not equivalent to a declaration that he bought and held the bonds for her, but that it was intended simply to show how he had invested the money for which the note was given. This conclusion is consistent with the conduct of the parties, which was clearly inconsistent with the claim made by the appellant. John Gilmor paid interest on the note to Eliza Gilmor, July 1, and October 1,1889, as appears by her receipts written thereon. While they said in plain words that the money so paid and received was interest on the note, and thus recognized the $50,000 as a debt due from the maker to the payee, we are asked to contradict them and say that it was interest on her bonds. We cannot do this unless we regard the note with the indorsement upon it as a declaration of trust instead of an obligation for the payment of money. The memorandum is clearly insufficient to warrant an inference that John held the government bonds in trust for Eliza, or to discharge him from liability to her on the note according to its terms.

Was it error to refuse to award to the appellant interest on this note at the rate-of six per cent? The note was payable one day after its date, and the payee would, in the absence of evidence qualifying her right, be entitled to interest upon it from its maturity at the legal rate. But it is a fair implication from the receipts upon it that the parties agreed upon a rate of four per cent. It is not unnatural or unreasonable in view of their relations that the payee should be willing to accept and the maker to pay the same rate of interest that he received on his investment of the money for which he gave the note. In the adoption of this rate by the learned auditor the appellant secures the same interest he would have received if he had established his claim to the bonds.

The learned auditor was clearly right in refusing to award to the appellant the amount of the mortgages and judgments found in the wallet labeled “ Eliza Gilmor.” This wallet was in John Gilmor’s possession at the time of his death, the mortgages and judgments were in his name, and there was no evidence showing that any of Eliza’s money was invested in them. The entry upon and the entry within the wallet were relied on to support the claim that John held these securities in trust for his sister, but they furnished no adequate ground for an inference that he so held them. Aside from these entries there was nothing to suggest that she had any interest in them. The theory that they belonged to her derives no support from the claim that her estate is much larger than the note and duebill. This claim is not sustained by the evidence. If it be conceded that all of Eliza’s property exclusive of her unsold interests in real estate passed into John’s hands under the power of attorney dated July 1, 1879, the appellant has no just cause to complain of the decree, because he received under it at least $25,000 more than he has shown such property was worth. The note and duebill were acknowledgments by John that he was indebted to his sister in the amounts stated in them, and we think the conclusion of the learned auditor that they furnished theyneasure of his liability was warranted by the evidence.

The specifications of error are overruled.

Decree affirmed and appeal dismissed at the costs of the appellant.