O'Neill v. Barry

Hardin, P. J. :

Plaintiff was a sister of Patrick Tighe. He died in Onondaga ■county, and his will was duly probated andTetters testamentary were issued to the defendant, and after the defendant had advertised for •claims against Patrick’s estate the plaintiff presented a claim for' $600. The executor rejected the claim and entered into a stipulation, pursuant to section 2718 of the Code of Civil Procedure, refer- • ring the claim to the referee named to hear and determine.

Prior to July, 1892, Michael Tighe, father of the plaintiff and of the testator, executed a real estate mortgage upon property in the Province of Ontario, and in July there remained in arrears upon that mortgage something like $1,000 of principal and $212 interest.

Plaintiff met the deceased at her father’s house in Canada in July, 1892, and she had with her, at that time, $600 in currency, and it was arranged that her brother and she should visit McNab.- and pay off the balance remaining due upon the mortgage held by him against their father, and accordingly they went to McNab and. delivered to him the money necessary to obtain á discharge of the ■ mortgage against- the father, and the discharge was executed by McNab upon receiving the balance due upon his mortgage..

' The vital question involved in the case was whether there was a loan by the plaintiff to her brother Patrick on the occasion of the adjustment with McNab. , In behalf of the plaintiff evidence is given tending to show that she loaned the $600 to Patrick; whereas,. there is some evidence tending to show that, instead of its being a loan to Patrick, she joined Avith Patrick, her brother, in con- - • tributing the money for the benefit of the father to raise the mortgage from the father’s estate. There is a. very severe conflict in the evidence. The plaintiff produced several Avitnesses who testi- • fled to the admissions of Patrick, which, if believed to the full extent of the language used by the Avitnesses, Avould induce the-belief that there was a loan, instead of an advance in aid' of her ■ father in retiring the mortgage from his premises.

The referee saw the Avitnesses and heard their testimony and had ' before him all the circumstances relating to the question of fact,. and presumably was in a better situation than Ave are to determine whether the witnesses avIio testified to the alleged admissions of the - deceased were reliable or not. (McCabe v. Greene, 45 N. Y. Supp. 724.) He has, upon all the facts disclosed at the hearing, and upon all the testimony deli Am fed, determined the vital question of fact adverse to the plaintiff. His findings are, viz.: “ That said sum of' money Avas delivered to the testator;to be used, and was used, in paying off a mortgage on the farm of Michael Tighe, the father of both plaintiff and testator. That the said sum was not delivered by claimant to or received by said deceased as a loan or • ad Alance,. but to be used on behalf of the claimant in paying off said mortgage.”

In quite an extensive opinion delivered by the referee he states ■ properly the rules of law applicable to admissions, and-in considering the evidence of such admissions he applies the principle laid down in the following cases: Law v. Merrills (6 Wend. 268); Van Slooten v. Wheeler (140 N. Y. 624).

Although, upon reading the testimony found in the appeal book,, we might have some hesitation in reaching the same conclusion that has been stated by the referee, yet we are not at liberty to-apply such impressions as we derive upon perusal of the evidence-without giving due .weight and consideration to the circumstance that the referee saw the witnesses, heard their story, was enabled to-judge of the truthfulness of their statements in a more satisfactory manner than we can be upon a perusal of their evidence, and we must, to some extent, be influenced by the conclusion of the referee, and we, therefore, are of the opinion that under the circumstances-we are not at liberty to disturb the conclusion reached by him upon the questions of fact. (Titus v. Perry, 13 N. Y. St. Repr. 237.)

In Roosa v. Smith (17 Hun, 138) the rule was laid down which has been found quite satisfactory in respect to the report of a-referee upon conflicting evidence in a case somewhat similar to-the one now under consideration. Applying the rule there laid down we ought not to disturb the referee’s report. That rule has been followed in Teeter v. Teeter (47 N. Y. St. Repr. 580); Stanley v. National Union Bank (41 Hun, 640; S. C. affd., 115 N. Y. 122); Sackett v. Thomas (38 N. Y. Supp. 608 ; 4 App. Div. 448).

It was the duty-of the referee to scrutinize closely the witnesses-who sought to establish a claim against an estate, especially as this claim was not supported by any written evidence, and'especially as-it was somewhat .exceptional and unreasonable that the deceased should borrow $600 from his sister without giving any written evidence or voucher therefor:

It was the duty of the referee to require satisfactory evidence of the existence of the claim before allowing the same against the estate. (Kearney v. McKeon, 85 N. Y. 139 ; Rowland v. Howard, 75 Hun, 1; Matter of Van Slooten, 140 N. Y. 624.) In the latter case it was said : “ The courts' should see to it that such estates are fairly protected against unfounded and rapacious raids.” The doc-. trine of that case was followed by this court in Yates v. Root (4 App. Div. 439).

We have looked at the exceptions taken during the progress of the trial with some care, and we do not find that any of them present any error which warrants us in interfering with the report of the referee.

The learned referee has stated his views of the case in an opinion, and quoted authorities in support of his views of the evidence, and We find no occasion to differ from him in respect to the rules of law or the evidence which he adverts to in such opinion.

All concurred, except Follett, J., not sitting/

Judgment affirmed, with costs.