McNally's Estate, In re
| Decision Date | 05 November 1976 |
| Citation | 54 A.D.2d 1103,389 N.Y.S.2d 60 |
| Parties | In re ESTATE of Ruth O. McNALLY In the Matter of Michelle P. McNALLY, as Executrix of the Estate of Ruth O. McNally, Deceased. |
| Court | New York Supreme Court — Appellate Division |
Pinsky & Pliskin, Philip C. Pinsky, Syracuse, for appellant.
Coutler, Fraser, Carr, Ames & Bolton, Henry S. Fraser, Syracuse, for respondent.
Before MARSH, P.J., and MOULE, CARDAMONE, MAHONEY and DILLON, JJ.
Michelle McNally, executrix of the estate of Ruth McNally, commenced this proceeding to obtain authority to recover money from the estate claiming that the decedent, her mother, was indebted to her in the sum of $10,000 for money loaned; $6,000 of which was claimed to have been loaned on January 4, 1971 and $4,000 loaned on January 19, 1971. The $6,000 loan, as evidenced by a promissory note, was to be repaid at $50 per month with interest of 1% Per annum. The alleged interest-free $4,000 loan was evidenced by an unexecuted promissory note which although in decedent's handwriting was undated, unsigned and the location of where it was found was unknown. The $6,000 debt was proved as evidenced by the fully executed promissory note. The question on appeal is what consequence has the $4,000 claim which the Surrogate disallowed and for which no note was executed.
The memorandum evidencing the $4,000 'loan' provides '(f)rom the sale of my home at 908 Second Street all my bills are to be paid, my funeral expenses and $11,000 to Michelle or whatever I still owe her, at the time of my death a record of which will be attached to my Will'. Respondent's counsel objected to the admission of the note since it was undated and irrelevant. The Surrogate ruled that while the note could not be received as proof of its contents, it was admissible into evidence as a sample of decedent's handwriting.
An entry or memorandum made by a deceased person against his interest, found in his books or papers, is in general admissible against his estate in favor of a party seeking to establish the fact stated. They are presumably truthful. Govin v. de Miranda, 140 N.Y. 474, 35 N.E. 626; Wharton on Evidence, § 128. The probative force which will be accorded to the admission depends upon the circumstances' (Matter of Gallagher, 153 N.Y. 364, 368, 47 N.E. 450, 451; see, Miller v. Silverman, 247 N.Y. 447, 160 N.E. 910 ()). Thus, while there are occasions when a note may serve as an admission of a valid debt of a decedent, here the memorandum offered in support of that claim is equivocal, is imprecise and lacks a substantial...
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Platner, Matter of
...a check was given in payment of a debt and create the alternative presumption that the check represents a loan" (Matter of McNally, 54 A.D.2d 1103, 1104, 389 N.Y.S.2d 60; see also, Richardson, Evidence, § 78 [Prince 10th ed] In the instant case, the weight of the testimony established that ......
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...happened in New York). In New York, delivery of a check is presumed to be in payment of a preexisting debt. In re McNally, 54 A.D.2d 1103, 1104 (N.Y. App. Div. 1976) (explaining that "[i]n the absence of other proof a presumption arises from the delivery of a check that it was delivered in ......
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High Farms, LLC v. King
...happened in New York). In New York, delivery of a check is presumed to be in payment of a preexisting debt. In re McNally, 54 A.D.2d 1103, 1104 (N.Y. App. Div. 1976) (explaining that "[i]n the absence of other proof a presumption arises from the delivery of a check that it was delivered in ......