Talbot v. Hathaway
Decision Date | 20 April 1915 |
Citation | 93 A. 834,113 Me. 324 |
Parties | TALBOT v. HATHAWAY et al. |
Court | Maine Supreme Court |
Report from Supreme Judicial Court, Washington County, at Law.
Action by Edward E. Talbot, administrator de bonis non with the will annexed of the estate of Ursula M. Penniman, against James E. Hathaway and trustees. Heard on report. Judgment for plaintiff, with certain allowances to defendant.
Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and HANSON, JJ.
C. B. & E. C. Donworth, of Machias, for plaintiff. O. H. Dunbar, of Jonesport, and H. H. Gray, of Milbridge, for principal defendant. H. W. Sawyer, of Machias, for trustees.
The case comes up on report. It is an action by the administrator de bonis non with the will annexed of the estate of Ursula M. Penniman, late of Machias, Me., to recover sums alleged to have been paid by her as surety for the defendant on two promissory notes, one, dated July 10, 1865, for $100 payable "in October next with interest," and the other, dated July 13, 1865, for $100 payable "in one year from date with interest."
Miss Penniman, the decedent, was the defendant's aunt. She died March 3, 1893. The notes in question were in her possession at the time of her death, were included in the inventory of her estate filed by her first administrator, and came into the possession of the plaintiff as her administrator de bonis non.
The defendant has resided continuously out of the state of Maine since the autumn of 1865. His plea is the general issue and the statute of limitations. He offered no evidence, except his deposition taken in the state of Washington; but he was disqualified as a witness to facts happening before the death of the testatrix, because the plaintiff is prosecuting the suit as an administrator, and that objection was raised both at the taking of the deposition and at the trial. R. S. c. 84, § 112.
The plaintiff offered in evidence a memorandum on the back of each note, in the handwriting of the decedent, to the effect that she paid the note. We find no authority for the admission of those entries. The fact that they were written on the back of the notes, instead of on a separate paper or private book, is immaterial. They are nothing more than private memoranda made by the surety herself in her own favor. A party is not permitted to introduce such entries made by himself in support of his own case. Libby v. Brown, 78 Me. 492, 7 Atl. 114; Townsend Bank v. Whitney, 3 Allen (Mass.) 455.
But the plaintiff contends that the decedent's possession of the notes at the time of her death is prima facie evidence that she paid them. We think that contention is sustainable. The notes had been negotiated. The decedent had signed them as surety. She was liable to pay them. If she paid them, we should expect to find them in her possession until she was repaid. They were in her possession at the time of her death, and that fact unexplained is presumptive evidence that she paid them and had not been repaid. In McGee v. Prouty et al., 9 Metc. (Mass.) 547, 551, 43 Am. Dec. 409, the court said:
The same rule was recognized in Heald v. Davis, 11 Cush. (Mass.) 318, 59 Am. Dec. 147.
The fact that the defendant has resided continuously out of the state since the latter part of the year 1865 renders unavailing his plea of the statute of limitations, because the time of his absence from the state is not to be taken as a part of the time limited for the commencement of the action. R. S. c. 83, § 106.
Independently, however, of the statute of limitations, the defendant urges in bar of the action the common-law presumption of payment arising after the lapse of twenty years. In other words, he urges that, if he ever became indebted to the decedent on account of her payment of the notes in question, that...
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