Clarke v. Roberts' Estate

• Citation: 87 P. 1077,38 Colo. 316
• Parties: CLARKE v. ROBERTS' ESTATE.
• Decision Date: 03 December 1906
• Court: Colorado Supreme Court

87 P. 1077

38 Colo. 316

CLARKE v. ROBERTS' ESTATE.

Supreme Court of Colorado

December 3, 1906

Appeal from District Court, Arapahoe County; John I. Mullins, Judge.

Action by A. K. Clarke against the estate of David Roberts deceased. Judgment for defendant. Plaintiff appeals. Affirmed.

Kennith M. Laurie and Whitford, Whitford & May, for appellant.

J. E Robinson, for appellee.

GODDARD J.

On September 18, 1901, the appellant filed in the county court for allowance against the estate of David Roberts, deceased a claim consisting of various items contained in two accounts marked, respectively, 'A' and 'B.' Statement A includes items covering a period from January 31 to March 31, 1890. Statement B includes items covering a period from June 28, 1886, to November 3, 1890. A statement of alleged credits for merchandise and cash received, amounting to $54.50 between July 21 and May 25, 1901, is attached. From a judgment of the county court disallowing the claim, an appeal was taken to the district court, where upon a trial to the court the claim was disallowed upon two grounds First, because the character of the evidence offered was insufficient to establish the claim; second, because, if the claim ever existed, it was barred by the statute of limitations.

It appears from the testimony that the deceased was engaged in business in this state since 1896, and during the three years prior to his death was carrying on a lucrative business in the city of Denver. The evidence introduced to establish the existence of the indebtedness was indefinite as to the amount, and in other respects unsatisfactory. The evidence mainly relied on, both to establish the existence of the indebtedness and to remove the bar of the statute, was of admissions alleged to have been made by the deceased to third parties. Such evidence has frequently been characterized by courts as 'weak and unsatisfactory,' and in some cases it is held that such admissions are insufficient proof to establish a claim against an estate. Wilder v Franklin's Ex'r, 10 La. Ann. 279; Bringier v. Gordon, Adm'r, 14 La. Ann. 272; Bodenheimer v. Ex'rs of Bodenheimer, 35 La. Ann. 1005; Portis v. Hill, 14 Tex. 69, 65 Am.Dec. 99. As was said in Bodenheimer v. Bodenheimer, supra: 'Extrajudicial admissions of a dead man are the weakest of all evidence. They cannot be contradicted. * * * In most instances such testimony is scarcely worthy of consideration.' In...