In re Seigle's Estate

• Decision Date: 03 December 1942
• Parties: In re SEIGLE'S ESTATE.
• Court: New York Court of Appeals Court of Appeals

289 N.Y. 300

45 N.E.2d 809

In re SEIGLE'S ESTATE.

Court of Appeals of New York.

Dec. 3, 1942.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding in the matter of the accounting of Hilda O. Seigle and others, as executors of the estate of William R. Seigle, deceased, wherein Elizabeth S. Seigle filed claim on promissory note. From an order of the Appellate Division resettling the account entered May 4, 1932, 264 App.Div. 76, 34 N.Y.S.2d 489, which affirmed a decree of the Surrogate's Court, 177 Misc. 642, 31 N.Y.S.2d 623, conforming to a judgment of the Appellate Division, 262 App.Div. 879, 28 N.Y.S.2d 563, which modified a previous decree of the Surrogate's Court, 176 Misc. 15, 26 N.Y.S.2d 410, claimant appeals in so far as the Surrogate's Court decree disallowed the claim and directed that executors be discharged from further liability.

Order of Appellate Division and decree of Surrogate's Court reversed, and matter remitted to Surrogate's Court.

LEWIS, J., LEHMAN, C. J., and DESMOND, J., dissenting.Richard H. Brown and Irving Goldberg, both of New York City, for appellant.

Charles A. Voss, of White Plains, for respondents.

CONWAY, Judge.

The claimant, the former wife of the deceased, from whom she had been divorced at the time of his death, has presented a claim in the sum of $7,500, evidenced by a promissory note in that amount. A separation agreement, antedating the divorce, provided that the deceased was to pay to the claimant the sum of $150,000 at the rate of $15,000 in each year. They yearly installments were to be paid in eight payments of $1,875 each on the first days of eight specified months. In the event that her husband died within the ten-year period, the claimant was to receive from his estate the balance of the $150,000 then unpaid.At the time of his death there had been paid to claimant under the separation agreement the sum of $73,125. The balance of $76,875 with interest has been paid by his executors.

Upon the promissory note in claimant's possession there is no minute of payment of principal or interest. The note was dated May 29, 1936, was payable on demand and was executed more than two years after the execution of the separation agreement on February 12, 1934. The decedent died on December 26, 1938.

The claimant introduced in evidence the promissory note and rested. There then arose the presumption that the claimant was the owner of the note and that it was unpaid.

The executors then offered in evidence six checks of decedent totalling the sum of $7,500. Except by their production, their dates and the amounts, there was no proof that they were, in anywise, related to the note. It is conceded by counsel that the claimant received payment of those checks.

The executors then offered in evidence the separation agreement and, upon their request, counsel for claimant conceded that certain checks of the face amount of $1,875 had been paid to claimant by decedent on account of payments required by the agreement. Counsel for claimant further conceded that the payments under the agreements were made regularly up to the time of decedent's death, and totalled $73,125. The executors then produced forty-four checks paid to claimant. Of those forty-four checks thirty-two were for $1,875 each, making a total of $60,000. The remaining twelve checks were in varying amounts. The total of the forty-four checks was $72,661.81. That was $463.19 less than the amount conceded to have been paid under the separation agreement. The claimant conceded that the payments of the six checks aggregating $7,500 represented payments other than those under the separaton agreement.

To recapitulate then, the claimant had rested upon the promissory note and the presumption of non-payment. The executors had proved the payment by checks of $1,875 each of the sum of $60,000 under the separation agreement. The executors had proved the payment to claimant of checks totalling $7,500 which claimant conceded represented payments other than those due under the separation agreement. That left twelve checks produced by the executor, in varying amounts, totalling $12,661.81. As to those checks no proof, other than their production, was offered by the executors that they represented payments made under the separation agreement. No proof was offered by the executors that the checks produced were the only ones payable to claimant by decedent then in their possession.

The record discloses therefore three sets of checks: First, those for $1,875 each which concededly were payments under the separation agreement. Second, six checks totalling $7,500, concededly for some transaction or transactions between claimant and decedent other than that involved in the separation agreement. Third, twelve checks in varying amounts totalling $12,661.81. Finally, no proof was offered that the executors were not in possession of other checks payable by decedent to claimant.

The claimant sought to prove by oral testimony that the six checks totalling $7,500 were given by decedent for a purpose other than the payment of the note. Such testimony was correctly excluded upon objection, as violative of the Civil Practice Act, section 347.

The Surrogate rejected the claim, drawing the inference that the twelve checks totalling $12,661.81 were all payments under the separation agreement. The sole question presented is whether that inference was permissible under the facts as related. We think it was not. We think that on the contrary an inference was required, because of the then state of the record, that there were other transactions between claimant and decedent. If that be so then on all the facts presented there was a failure of proof of payment of the note.

It is true that there is a presumption...