Geaber v. Spink, 9157

• Decision Date: 11 May 1951
• Docket Number: No. 9157,9157
• Citation: 80 A.2d 882,78 R.I. 198
• Parties: GEABER v. SPINK. Ex.
• Court: Rhode Island Supreme Court

Page 882

80 A.2d 882

78 R.I. 198

GEABER v. SPINK.

Ex. No. 9157.

Supreme Court of Rhode Island.

May 11, 1951.

William H. Leslie, Jr., Wakefield, for Geraldine G. Barnes.

C. Bird Keach, Providence, for Sanford C. Spink, Executor.

FLYNN, Chief Justice.

This proceeding began with the filing by Emma I. Geaber of her claim for $27,003.33 and interest against the estate of her deceased husband Nicholas F. Geaber. At the time of such filing she was administratrix of his estate, but during her life she did nothing to have her claim determined in accordance with General Laws 1938, chapter 578, § 10. After her mother's death without her having made a final accounting, Lilliam E. Geaber, a daughter, was ultimately appointed administratrix d.b.n. of her father's estate. See Geaber v. Wakefield Trust Co., R.I., 69 A.2d 822.

The claimant's son by her first marriage, Sanford C. Spink, was appointed executor of her will and in that capacity prosecuted the instant claim which his mother had filed. After a hearing in the probate court of the town of Narragansett a decree was entered allowing the claim in the amount of $7,300. From that decree an appeal to the superior court was taken by Geraldine Geaber Barnes, the claimant's other daughter by her second marriage, as an heir of her father's estate. Following a trial in the superior court a jury returned a verdict disallowing the entire claim and thereafter the trial justice denied the executor's motion for a new trial. The case is before this court on the latter's bill of exceptions to that decision and to certain rulings during the trial.

It is no advisable to state in detail all the evidence which included numerous exhibits of bank records, checks and other instruments, and therefore only a general summary will be indicated in order to understand these exceptions. The evidence in favor of the claimant tended to show the following facts. Emma I. Geaber, the claimant, received by gift from her first husband, Sanford C. Spink, certain money, bank accounts, stocks, bonds and mortgages totaling about $35,000, in addition to the title to a farm where they lived.

Shortly after her husband's death in May 1913 the claimant met Nicholas F. Geaber, who then was a partner with his brothers in a rendering business, and at that time his share of the income from that business, according to an income tax return, was about $536 per year. At his solicitation the claimant loaned him $2,000 in November 1913 and $597 about three weeks later. In each instance, as he could not write English, he signed in Arabic a promissory note that carried interest at 6 per cent. These loans were repaid prior to May 1914, when the claimant and Nicholas were married. From such marriage two daughters were born, namely, Lillian E. Geaber, referred to herein as Lillian, who is administratrix d.b.n. of her father's estate, and Geraldine Geaber Barnes, who was termed the 'intervenor' and is here referred to as Geraldine. Sanford C. Spink, the claimant's son by her first marriage and the executor of her will, will be referred to generally as Sanford or the executor.

Immediately after claimant's marriage to Nicholas he began to borrow further sums from her. Withdrawals by her from her own bank accounts during the first two months after the marriage were traced into the checking account of Nicholas to the amount of approximately $15,000. At various times thereafter other loans were made by claimant until they amounted to $26,100. Some of this money was used to build a house, the title to which ultimately was recorded in his name alone and so remained until his death. On February 1, 1934, less than two years prior to his death, he borrowed a further sum of $903.30 for stone crushing equipment for his other business, and in the presence of Lillian and the claimant acknowledged his previous indebtedness and promised to repay within a year and a half or two years the total of all the loans. In the claim, which was written and filed personally by the claimant, these loans were itemized and amounted to $27,003.33 with interest to be added at 6 per cent.

The gist of the testimony of Lillian and Sanford is that in the years during which they lived at home they heard frequent discussions between Nicholas and their mother in connection with these loans and his business; that from their own knowledge together with the records in evidence they were familiar with the making and purpose of many of the loans; that their mother, who was entirely honest, had told them of the other loans; that Lillian herself was present in 1934 when her father expressly acknowledged his previous indebtedness and promised the claimant he would repay the total amount of all loans; and that Sanford, though familiar with many phases of the different business interests of Nocholas, including certain of the loans and the disposition thereof by Nicholas, was not present when the last loan and promise were made as descirbed by Lillian and therefore could give no testimony concerning them.

On the other hand Geraldine did not testify. She relied upon the bank and other records in evidence and certain testimony given by Lillian, Sanford and other witnesses in cross-examination. These included the record of an inventory filed by Sanford as executor of the claimant's will which showed personal property of the value of $43,000, apart from the instant claim. Geraldine argues that the evidence and inferences therefrom show in effect that when making every admitted loan to Nicholas before marriage, as well as to Geraldine for her divorce, the claimant had obtained a promissory note in each instance, whereas no note or written instrument acknowledging any of the alleged loans was produced to support the instant claim; and that certain loans to Nicholas were claimed as if he then were in need, whereas at those times his bankbook showed that he had considerable more on deposit than the amount of such alleged loans.

Moreover, she claims it was shown that in February 1934 when Nicholas is said to have borrowed an additional sum of $903.30 on his promise to repay the full amount of that and all previous loans, there was or should have been a considerable part of $22,092.65 in his bank account No. 299, the withdrawal and expenditure of which were not specifically accounted for by any bank record or written evidence, although the claimant had complete custody and authority over all of Nicholas' bankbooks and records during his lifetime as well as thereafter; and that in any event during the very next year, that is, in 1935, he had money enough apparently to loan other persons on the security of their mortgages amounting to $7,000. Finally Geraldine points out that the claimant received $35,000 personal property from her first husband; that if she loaned approximately $27,000 thereof to Nicholas as claimed she would have only about $8,000, whereas she died leaving at least $43,000 personal property; and that the only reasonable inference, in the absence of any convincing explanation to the contrary, is that she must have received payment or satisfaction of these loans in order to have $43,000 in the inventory of her estate.

It was further noted by Geraldine that after the death of Nicholas the claimant did not file her claim within the ordinary statutory period, but had to obtain permission to file it out of time; that moreover the undisputed evidence showed claimant took no action whatever during the remaining ten years of her life to prove and collect her claim; and that this conduct is so...