Estate of Souder

Opinion by

Mr. Justice Green,

The testimony of Joseph W. Souder is confusing and contradictory but there is enough in it, and in the other facts in evidence, to require an affirmance of the decree of the learned court below. The chief question in the cause is whether the admitted original indebtedness of J. W. Souder to the deceased, of 17,000, was extinguished. The origin of the debt does not appear, but that is not necessary, as the fact of indebtedness was not only admitted, but positively testified to, by the debtor himself. The only circumstance that raises any question on the subject, is the fact that Mr. Souder testified at one stage of his examination, that the debt was paid by the deed which lie executed and delivered to the deceased, Jan. 2-1, 1879, for all his interest in his deceased brother’s real estate, which included several parcels of property. He was asked, “Q. Was it given in collateral or in payment of the debt? A. Inpayment of the debt.”

As a matter of course if this statement was correct, the debt was extinguished and fully paid on Jan. 24, 1879, and could have no legal existence thereafter. But his other testimony is so entirely inconsistent with this that the two portions cannot be reconciled.- When he was first called he was asked: “ Q. What were the collaterals which you gave your sister for the $7,000 ? A. I gave her the property which came to me from my brother’s estate. Q. What property was that ? A. He owned those houses down on 11th street. He owned this propertjr out in West Philadelphia, those houses out there.” He further said that the deed was absolute and that it was dated the 24th of January, 1879, leaving no doubt as to the identity of the instrument. But he had just previously said it was given as collateral to the $7,000 debt. The fact that the deed was absolute was not at all inconsistent with its being given, and received, as collateral for the debt, because the absolute form of the conveyance was the proper and customary mode of passing the title. He did not say that he told his sister that he gave it in payment of the debt or that she received it as such. A little earlier in his first examination he was asked: “Q. Do you know what the collaterals are without their production? A. I gave her in the first place three houses on Oxford street for the consideration of $3,000, between 17th and 18th streets, on the south side. In 1878 or 1880 she soid them to the mortgagee. I do not think she got anything out of them. I then gave her an assignment of all the real estate —of the real estate I had conveyed to me from my brother’s estate.”

In this connection he calls the deed an assignment and classes it among the collaterals. The question was asked in reference to the account filed by the executors, of whom the witness, J. W. Souder, was one. The account proper contained a distribution account annexed to it, in which occurred the following item: “Indebtedness of J. W. Souder secured by collateral retained by the executors for further accounting when a sale of the collateral becomes possible — $7,000.”

The accountants asked that the remainder of the funds in their hands should be distributed, amounting to $3,000 of principal and $473.25 of interest, and that this “ indebtedness of J. W. Souder ” which was secured by collateral “ should be reserved by the executors for further accounting when a sale of the collateral becomes possible.” It was to ascertain what the collaterals were that the above question was asked and answered. Now the account was filed on Nov. 10, 1893, seven years after the death of the testatrix, and the above testimony of J. W. Souder was delivered on Jan. 5, 1894, whereas the deed which he says paid off the $7,000 debt was made to his sister in January, 1879. If the debt was paid byr the deed it could not be a subject of collateral, either when the account was filed, or when Souder testified. If the debt was paid in 1879 there could not be any “future accounting” for it in November, 1893, when the account was filed, nor in January, 1894, when Souder testified as above.

But there was further testimony of J. W. Souder altogether inconsistent with the theory that the debt was paid by the deed. He had transferred to his sister in 1882 one hundred and forty-shares of stock in the Chester Land and Improvement Company, the par value of which was $50.00 per share, amounting on its face .to $7,000. He was asked about this transfer and said, “ No, sir; I gave her that stock in this way. She never got any income from this property. I said to her, ‘ Kate, there is the stock which will be worth maybe $20,000 or more; I will give you the first $7,000 out of these shares ; then you can give me any properties I got.’ Q. Then the understanding was when you sold a certain portion of that stock and got $7,000 out of it for her you were to have the deed back ? A. When I paid the $7,000, yes, sir. . . . Q. What else did you give as security to your sister besides that deed and that certificate of stock ? A. I do not think I gave anything at all, sir. I do not remember a thing. ... By the Court: Mr. Souder, as I understand, no part of the $7,000 has ever been paid ? A. No, sir. . . . Q. So the prior debt of $7,000 is still unpaid ? A. Seven thousand dollars, sir.”

With all the charity which it is possible to extend to the witness, and with a perfect willingness to attribute to him a mere misunderstanding of his rights, and a misconception of his true position, it is certainly not possible to regard his testimony, taken in its entirety, as the basis of a judicial sentence or decree that his debt of $7,000 was paid by the deed of 1879.

In the inventory of his sister’s estate taken in December, 1886, a few months after her decease, this debt was noticed as an asset of the estate thus: “ Indebtedness of J. W. Souder to decedent of $7,000, secured by sundry collateral of.uncertain and unknown value. Face value $7,000.”

As this inventory was filed bjr the executors, of whom he was one, it must be taken as their deliberate assertion that the entire debt was then due to the estate, three years and more after the deed of 1879 was given. Again, when the account was filed in November, 1893 lie, as one of the executors, charged himself with an item called “ Indebtedness of J. W. Souder. . . . $7,000,” and it was one of the several items which constituted an aggregate of $10,944.57 of assets of the estate. This account was verified by the affidavit of its correctness made by J. W. Souder himself. The description of it in the annexed distribution account we have already given. We are very clearly of opinion that upon the testimony and acts of Mr. Souder it must be adjudged that his debt to the testatrix was not paid by giving her the deed, that no part of it has ever yet been paid, and that it is a present subsisting indebtedness. It was not barred by the statute of limitations because the transfer of stock which was made in 1882, was a distinct acknowledgment of the debt from which a promise to pay was reasonably deducible, Palmer v. Gillespie, 95 Pa. 340, and this took place within six years of the death of the testatrix.

In addition to the foregoing considerations it is perfectly plain that the testatrix considered the claim as an existing debt against her brother at the time her will was made in June, 1886. She there recites it as a debt which her brother owes her and bequeaths it when paid, to various charitable legatees. While such a declaration could not operate to create a debt, it is certainly strong evidence that a debt already existing, still continued. It could not be extinguished by the acceptance of the deed unless she so intended at the time, and of that there is no evidence. Souder’s statement that the debt was paid by the deed is nothing more than his own opinion to that effect. He does not say that she agreed to take it as payment.

We do not understand that the court below personally surcharged the executors with the amount of this debt. The court simply ordered that the executors should make sale of the securities and file an account of the proceeds, and that notice of the sale should be given to all parties in interest. This we think was correct. No time was fixed within which the sale should be made. We think a sale should be made after a notice to redeem has been given, for which a reasonable time should be allowed to the debtor.

The decree of the court below is affirmed, and it is ordered that the accountants make sale of the securities received from Joseph W. Souder within one year from the time of filing this opinion, after first giving said Souder three months’ notice of said sale, and the opportunity to pay the debt and redeem the securities until the time of sale.