Weaver v. Welsh
| Citation | 325 Pa. 571,191 A. 3 |
| Decision Date | 22 March 1937 |
| Docket Number | 18 |
| Parties | Weaver, Exr., Appellant, v. Welsh |
| Court | United States State Supreme Court of Pennsylvania |
Argued January 25, 1937
Appeal, No. 18, May T., 1937, from decree of C.P. Dauphin Co., Equity Docket No. 1155, in case of C. R. Weaver executor of Missouri A. Spohn, deceased, v. Robert C. Welsh. Decree affirmed.
Bill in equity. Before HARGEST, P.J.
The opinion of the Supreme Court states the facts.
Decree entered dismissing bill. Plaintiff appealed.
Errors assigned, among others, were dismissal of exceptions.
Decree affirmed at appellant's cost.
Chas W. Eaby, with him Metzger & Wickersham and Amos E. Burkholder, for appellant.
Chas. C. Stroh, of Stroh & McCarrell, with him John A. R. Welsh, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Missouri A. Spohn, decedent, was raised from early childhood as a member of the family of appellee's wife. A close relationship existed between Mrs. Welsh and Mrs. Spohn, although there were no blood ties. Appellee was the decedent's agent in many financial transactions. Shortly after her death, her executor instituted this proceeding against appellee for an accounting and to compel delivery to the estate of certain bonds and repayment of $1,400 representing the proceeds of two of her checks payable to his order. Appellee, in his answer, admitted receipt of the checks and bonds. The check stubs introduced in evidence by appellant bore thereon the word "investment," written by appellee. The latter testified, over objection, that the stubs were so endorsed at Mrs. Spohn's direction to conceal knowledge of the disposition of the money from certain of her relatives, but that none of the proceeds were used by him or for his benefit. Instead, he testified that his money was a gift by Mrs. Spohn to his children to defray, in part, the expenses of their education. The answer as to the bonds recited that they had been returned by him to the decedent. The executor offered a written statement submitted by appellee prior to the suit, which noted that the bonds had been given to his wife. Appellee testified, over objection, that the bonds were given to his wife by Mrs. Spohn, and Mrs. Welsh also testified to that effect.
In dismissing the bill, the court below held appellee competent to testify as to the checks, but that neither he nor his wife were competent witnesses as to the bonds. It was found as a fact that, inasmuch as the family of appellee's wife had raised decedent, the check proceeds were a valid gift to appellee's children and the bonds a valid gift to Mrs. Welsh.
Before considering the admissibility of the testimony, we will first take up the question of burden of proof. Here we have a decedent who during her lifetime issued two checks to her agent and gave to his wife some bonds which had formerly been entrusted to him. Appellant contends that in this proceeding for an accounting he may show delivery of the checks, the fact that the bonds were at one time the property of decedent and were placed in the hands of appellee as her agent -- rest his case and say to appellee, "You must prove the disposition of the property, but your mouth is closed by the death of your principal; you cannot explain the transactions."
In a proceeding for an accounting or to recover bonds or other property alleged to belong to a decedent's estate, the burden of proof is on the representative of the estate to show by a preponderance of evidence that this property belonged to the decedent, and had been placed in the hands of the defendant who had a duty to account. This burden was upon appellant in the present case.
If the case had been submitted on bill and answer the court below would have been bound to find for appellee. He had filed a comprehensive answer completely explaining the charges in the bill. Appellant, to establish his right, read into the case those parts of appellee's answer admitting receipt of the property, but objected to placing all the answer relative to the subject in evidence. This, of course, he could not do without opening the door to the full answer. Appellant has shown that the property was at one time in the hands of the decedent and its receipt by appellee as agent is admitted by his answer; but the answer goes further and denies that the property was converted to his own use or wrongfully withheld from the estate. Its disposition by him is there explained. Appellant cannot use that part of the answer which establishes appellee's receipt of the property and, at the same time, exclude from the record the portion which qualifies and explains the circumstances under which the property was received and how it was disposed of. In Knapp v. Griffin, 140 Pa. 604, an action was brought by an executor against the decedent's son-in-law, who transacted most of his business, to recover sums not accounted for. The plaintiff attempted to use the defendant's admission of the receipt of such property and to reject that portion which accounted for its disposition. The court below charged the jury: ". . . where a party undertakes to prove an admission of another party, he must give the whole admission, and if a portion of it serves the party who made the admission, he must not leave it out; the whole must be for the consideration of the jury." This was affirmed by this court on appeal.
Appellant also offered in evidence a statement of the agent to the executor, given before the bill was filed, showing possession of the bonds by him, but contends that the notation thereon showing a gift of them to Mrs. Welsh should not be accepted as evidence, though this fact was urged by appellant as being a contradiction of the answer. The statement and answer are not inconsistent for the former shows the ultimate disposition of the bonds. However, striking out the testimony of appellee with the answer and the statement as offered, the evidence to support the bill would be reduced to the offer of the check stubs referred to above. This would not be sufficient to sustain the action. The stubs, without more, ordinarily would impose no liability to account; nor would the additional word "investment" on the stubs. The latter, apart from authorship, was subject to many interpretations. Even if the statement as to the bonds was admissible without explanation, the evidence is likewise insufficient to show the retention of property belonging to decedent. The difficulty with appellant's case is that in attempting to limit the effect of the answer and the statement he deprives himself of the right to use any part of it. Strip the case of the evidence complained of and appellant did not meet the burden of proof.
Before dismissing the subject of the burden of proof, it is well to here note that it is not governed by the old equity rule that a responsive answer denying the allegations of the bill of complaint, imposes the burden upon the complainant to disprove it by the testimony of two competent witnesses, or by that of one witness where there are corroborative circumstances. The Act of May 28, 1913, P.L. 358, Sec. 1, provides otherwise: "Hereafter all bills and answers must be sworn to; and the rule in equity that the averments of a responsive answer must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances equivalent to the testimony of another witness, in order to entitle plaintiff to a decree is hereby abolished as to proceedings hereafter to be begun." Schwebel v. Wohlsen, 254 Pa. 281, decided after the Act of 1913, did not mention the Act; it was overlooked; but Leininger v. Goodman, 277 Pa. 75; Leahey v. Leahey, 309 Pa. 347, and Goslin v. Edmunds, 325 Pa. 154, clearly demonstrate that the old rule was completely abrogated by that act.
In considering the evidence submitted by appellee and its competence, the controlling factor is clause (e), section 5, of the Act of May 23, 1887, P.L. 158, the purpose of which is obviously to prevent the injustice which might flow from permitting the surviving party to a transaction with a decedent to give testimony thereon favorable to himself and adverse to the decedent, which the latter's representative would be in no position to refute: Karns v. Tanner, 66 Pa. 297 (). This clause has been construed not merely to render the surviving party incompetent to testify concerning the precise transaction, but to testify to any fact occurring before the death of the decedent which bears upon it: Swieczkowski v. Sypniewski, 294 Pa. 323; Uhl v. Mostoller, 298 Pa. 124. But, to effect this disqualification, the interest of the surviving party must be adverse to that of the decedent. See King v. Lemmer, 315 Pa. 254; Dillon's Estate, 269 Pa. 234; First National Bank of Bloomsburg v. Gerli, 225 Pa. 256; Edmundson's Estate, 259 Pa. 429.
It is apparent in the check transaction that appellee acted merely as agent for the decedent to pay over the money to his children. His answer and testimony denies that he received any part of it himself; it was so found by the court below. Since he merely acted as the conduit through which the gift flowed to his children he does not have any disqualifying interest in the proceeds of these checks adverse to the decedent's rights. A similar situation arose in Taylor's Estate, 154 Pa. 183, where it was said: ...
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