Calanno Estate
| Decision Date | 17 January 1958 |
| Docket Number | 3,433 of 1955 |
| Citation | 14 Pa. D. & C.2d 153 |
| Parties | Calanno Estate |
| Court | Pennsylvania Commonwealth Court |
Henry E. Skaroff, Rames J. Bucci and C. Max Ivins, for exceptants.
Joseph Kaplan, contra.
Before Klein, P. J., Bolger, Lefever, Saylor and Shoyer, JJ.
Exceptions to adjudication.
In a careful and thorough adjudication the learned auditing judge dismissed three of five claims all based upon judgment notes allegedly signed by decedent and in two instances also by his alleged widow. The three claimants who were denied recovery have filed exceptions. A claim by Virginia Sue Calanno, as the common law wife of decedent, to take against the will of decedent, was also dismissed and exceptions to that action are likewise now before us.
The rule of law enunciated in Roberts Estate, 350 Pa. 467, 471, is peculiarly applicable in this instance. " Where an auditing judge sees and hears the witnesses, it is for him to determine their credibility and the weight to be given to their testimony because of their character, intelligence and knowledge of the subject, and his findings, like those of a jury, will not be disturbed except for clear error."
The opinion in the cited case points out that where an auditing judge refuses to accept the testimony of a witness, especially when based upon valid reasons, such refusal will be sustained. The learned auditing judge has carefully digested the pertinent testimony and gives most satisfactory reasons for his refusal to allow the claims. This refusal is fundamentally based upon the incredibility of the testimony, growing very largely out of an atmosphere of collusion, which the auditing judge found to exist and also upon the failure of the claimants to buttress their claims with evidence which was available, but which was not produced.
Particularly open to suspicion, according to the auditing judge, was the signature of decedent on the notes as presented. The testimony pertaining to the signature as well as to other phases of the claims of the exceptants came mostly from the lips of the alleged common law wife, Virginia Sue Calanno, who was also a comaker with decedent of the notes presented by Fausto D'Antonio and Titinia Lano, claimants. It also appears that while Virginia Sue Calanno was not a comaker of the note presented by Jerry Furcolo, she testified as to the material facts concerning it. This note is undated and is signed in blank except for the amount, $ 1,000. Since the auditing judge definitely disbelieved her testimony and since she is also a claimant in the case, the learned auditing judge was eminently justified in attaching suspicion to all three of these claims: Houston Estate, infra. We are satisfied that none of these claims was established with the requisite clarity and precision: Roberts Estate, supra. The element of doubt is such as to sustain the finding of collusion.
Counsel for exceptants sought to rely upon the principle of law that claimants having proved the execution and delivery of the notes, they were not required to go further and prove consideration, the burden shifting to the estate to prove a lack of consideration. This is a correct exposition of the law (Conrad's Estate, 333 Pa. 561), but it does not apply here because claimants, after presenting their notes, went further and introduced testimony in anticipation of the defense of failure of consideration. This they had a right to do. But in doing so, they relieved the accountant of the burden of proving lack of or failure of consideration: Katz v. Katz, 309 Pa. 115; Tate v. Connor, 184 Pa.Super 427. Their evidence failed because the auditing judge found it fabricated. We concur in this conclusion: Murphy Estate, 54 York 65. The suspicion arising from collusion is definitely present because claimant-widow testified in support of these three claims: Houston's Estate, 318 Pa. 300; Murphy Estate, supra. See also Bogdanoff v. Manis, 346 Pa. 243; Reese v. Trasoff, 108 Pa.Super 478. Had counsel for decedent's children objected to the competency of Virginia Sue Calanno, who testified in support of her claim as common law wife to take against the will, it is clear that her testimony would have been rejected. In Munson v. Crookston, 219 Pa. 419, 421, a surviving husband was held to be incompetent as a witness to testify to matters occurring in the wife's lifetime. The court stated:
" Under clause (e) of sec. 5 of the evidence Act of May 23 1887, P. L. 158, no person whose interest shall be adverse to the right of a deceased party shall be a competent witness to any matter...
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