Gandy v. Bissell's Estate

• Decision Date: 21 May 1902
• Citation: 3 Neb. [Unof.] 47,90 N.W. 883
• Parties: GANDY v. BISSELL'S ESTATE.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 47

90 N.W. 883

GANDY

v.BISSELL'S ESTATE.

Supreme Court of Nebraska.

May 21, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Richardson county; Stull, Judge.

“Not to be officially reported.”

Action by Mary E. Gandy against the estate of William Bissell. Judgment for defendant, and plaintiff brings error. Reversed.S. P. Davidson, for plaintiff in error.

F. Martin, C. Gillespie, and Kelligar & Ferneau, for defendant in error.

POUND, C.

Mary E. Gandy presented a claim against the estate of William C. Bissell, deceased, based on a promissory note purporting to have been executed by said William C. Bissell, payable to the claimant or bearer. A judgment in the county court was appealed from, and the claim was tried to a jury in the district court, where a verdict was found for the estate, and judgment was rendered accordingly. The claimant seeks a review of said verdict and judgment by petition in error.

Of the several errors assigned, two only require attention. The instructions are free from error, and the evidence offered by the estate, and admitted, which forms the basis of one assignment of error, appears competent and admissible. But a very serious question arises upon certain evidence offered by the claimant and excluded by the trial court. The note sued on bears date March 26, 1892. The alleged maker was at that date a very old man, and one of the strong points against its authenticity was that he was then in no business wherein, or by reason whereof, he could require so large a sum of money. One witness was produced, however,whose testimony, if believed, tended to show that the note in question was executed in settlement or renewal of prior debts. Under this state of the testimony, the claimant offered a witness to prove that in 1884, eight years before the date of the note, the deceased owed her about $1,000 for moneys advanced, and produced, also, a series of checks, payable to him, which, it was shown, had been paid through the bank, and charged to the claimant's account. It was also shown that the deceased had got the money upon one of these checks by purchasing a draft therewith. The last of these checks is dated the day before the note. All of this evidence was excluded. The reason for such ruling seems to have been that most of the checks, as well as the evidence as to the indebtedness in 1884, were considered too remote. It will be admitted that such might be the proper view in many cases. But here the circumstances were peculiar. Mr. Bissell was a very old man at the date of the alleged note. His days of business activity were in the past. There was not the same presumption that his business affairs were promptly adjusted and kept up which would obtain in case of a younger man in active business life. There was testimony tending to show that the note in question had been given in settlement or renewal of pre-existing accounts or obligations. Hence, so long as the improbability of the case was the strong point urged by the estate, it was highly important for the claimant to show, if she could, and that by disinterested persons,--for her own testimony would have been incompetent,--that there was an account between the parties, and a large indebtedness due her thereon, prior to the date of the note. Considering Mr. Bissell's age, circumstances, and mode of life, if there was such an indebtedness, it must have been of long standing; and while the testimony and...