Sunberg v. Sebelius

Bobinson, J.

(concurring). The plaintiff sues to establish against the estate a claim based on a promissory note for $1,700 and interest at 10 per cent. The note was due October 1, 1915. The district court gave judgment for plaintiff, and the executrix appeals. By answer she denies any knowledge or information sufficient to form a belief concerning the making, delivery, and nonpayment of the note, and yet the fair presumption is that she knew all about it. She was the wife of the deceased, and she must have known of his making that note. The note was put in evidence with proof that the claim had been duly presented to the executrix for allowance, and she refused to allow it, and said she would not pay it until she had to. She denies the concluding part of the complaint, which avers that the claim was duly presented* to her and that she refused to allow it. That part of the answer becomes wholly immaterial in view of the fact that the answer does in effect deny the claim. It in effect avers that the presentment of the claim would have been of no avail, and the law neither does nor requires idle acts. On the trial of this case the claim was presented and proved to the satisfaction of the district court, and it was duly *425adjudged that there was due $2,180.95 and that the same be paid by the executrix in due course of administration.

The burden of appellant’s brief is on the presentation of the claim-There is no attempt to show that it is unjust. There is no specification showing that the evidence is insufficient to support the findings. The promissory note and the proof of claim is in evidence. The note was. made to the Merchant’s Bank of Overly to secure $1,700 and interest at 10 per cent. It became due October 1, 1915. It was duly indorsed to the plaintiff for $1,700 in cash money.

By a little honest inquiry the executrix and her attorney could have learned, if they did not know, all the facts concerning the note. It was her duty to know and to ascertain the facts. It was not for her to shut her eyes and to say that she did not see. The record shows no excuse or reason for the defense or the appeal to this court.