Gregory v. Filbeck's Estate

• Citation: 20 Colo.App. 131,77 P. 369
• Parties: GREGORY v. FILBECK'S ESTATE.
• Decision Date: 13 June 1904
• Court: Court of Appeals of Colorado

77 P. 369

20 Colo.App. 131

GREGORY v. FILBECK'S ESTATE.

Court of Appeals of Colorado

June 13, 1904

Appeal from District Court, Arapahoe County.

Proceedings for the allowance of the claim of Jacob Gregory against the estate of Philip Filbeck, deceased. From a judgment of the district court disallowing the claim, rendered on appeal from a judgment of the county court disallowing the same, the claimant appeals. Affirmed.

Geo. W Miller, Daniel Sayer, and C.C Brown, for appellant.

R.D Thompson, for appellee.

GUNTER J.

Philip Filbeck died June, 1899, and Jacob Gregory, appellant, was appointed as administrator of his estate. In September, 1899, two claims in favor of appellant were filed against the estate: A note of date March 8, 1883 payee, appellant; principal sum, $5,000; due two years after date; drawing interest from date at rate of 12 per cent. per annum; interest payable quarterly; and a second note dated May 20, 1884; payee, Leynette A. Collins; principal sum $500, bearing interest at rate of 12 per cent. per annum from date until paid. Upon hearing, the claims were disallowed by the county court, and on appeal by the district court. From the judgment of disallowance by the district court, the case is here.

To justify the allowance of the claims, it was necessary to establish the original validity of the notes, and that they were not, at the time of the hearing, barred by the statute of limitations. It was the theory of the estate that Philip Filbeck in 1883, prior to the giving of the first note, anticipated the institution against him of a suit for divorce, and, in pursuance of a conspiracy between him and his brother-in-law, appellant, to defeat any decree for alimony that might be awarded therein, gave the notes in question, secured by trust deed on substantially all of his real estate. Evidence was adduced to sustain this theory.

As we consider the question of the statute of limitations decisive of this appeal, it is unnecessary to discuss the evidence pertinent to the original validity of the notes. We confine ourselves to the question of the statute of limitations. This, under the issues, was a question of fact, and was tried to the court. The court determined it for the estate, and, if such determination was upon conflicting evidence, we are bound by it, and the judgment should be affirmed. Minor v. Lovell, 25 Colo. 249, 54 P. 623; Barnett v. Jaynes et al., 26 Colo. 279, 57 P. 703. The same rule obtains whether the question of fact was tried to the court or to a jury. Hazeltine v. Brockway, 26 Colo. 291, 296, 57 P. 1077. "The testimony is so evenly balanced and lacks so much in directness and positiveness, we must concede the case is not free from doubt. But where the matters to be determined are wholly those of fact, and two trial courts have passed on the question in the plaintiff's favor, we must, under the general rule, accept those conclusions as a definite settlement of the disputed propositions, and the finding as conclusive." Owen v. Hamburger, 14 Colo.App. 334, 336, 59 P. 966, 967. "Claims being withheld during lifetime of an alleged debtor, and sought to be enforced after his death, should be carefully scrutinized, and only admitted upon satisfactory proof." Kearney v. McKeon, 85 N.Y. 136; In re Child's Estate (Sur.) 26 N.Y.S. 721. If a cause of action existed in favor of the claimant, it was on the new contract created by payments on the notes, or on an alleged contract of extension of May 29, 1889. "The cause of action is based upon the promise implied in the law perforce the payment made." Buckingham v. Orr, 6 Colo. 587; Polk v. Butterfield, 9 Colo. 325, 12 P. 216; Richardson v. Bricker, 7 Colo. 58, 1 P. 433, 49 Am.Rep. 344.

Proof of the payments and the contract of extension rested upon the credibility of the testimony of Mrs. Gregory, the wife of appellant, the claimant. Deceased was her brother. He died leaving by deed all of his estate to another sister, Mrs Riethmann. Whether the credibility of Mrs. Gregory's testimony was affected by this fact was for the court to determine. The claims of her husband, in the aggregate, amounted to $10,000. Whether the interest she had in these claims, through her relations with her...