Estate of Emerson

This is an appeal from an order and decree of the court in probate settling the first and final account of Collins P. Emerson, special administrator of the estate of Thomas B. Emerson, deceased. Thomas B. Emerson died intestate, a resident of the county of Los Angeles. Collins P. Emerson is his brother. He came from Iowa to California, applied for and received letters of special administration upon the estate of the deceased. He qualified and acted. Thereafter he sought, under section 1339 of the Code of Civil Procedure, to procure the probate of a will of his brother which

The account as first presented set forth the amounts of money belonging to the estate of his brother which he had drawn from several banks, and it is noteworthy that in each instance he failed to report the amounts over the face of these bank accounts, which he had received from the banks by way of interest in addition to the principal sums. He only did so after his account as first presented was attacked for these as well as for other reasons. His explanation as to why he had failed to charge himself with these additional moneys thus received as interest may be given in his own language. “I charged myself with $1,575.68 from the City National Bank of Clinton, Iowa. That was not the exact amount which I withdrew from that bank. There was $1,912.88. I left out the interest in my account. I do not know why I did not charge myself with it. I received the money.’’ ’

Upon filing his revised or amended account these interest charges were of course included, and they were all allowed but one, for the sum of $48.04, which unquestionably and admittedly he received by way of interest upon his intestate’s account in the German-American Trust & Savings Bank. Respondent, indeed, admits that the failure of the court to charge the special administrator with this amount was due to oversight, and, this being recognized, we may pass on to certain other minor items before we come to a consideration of. the principal sum in controversy. These minor items are two. The special administrator claimed, and the court allowed him, a credit of $116.13 for railroad fare and expenses

The second minor item, also allowed by the court, is for $143.36 for railroad fare and expenses incurred by the special administrator in going from Los Angeles to Cedar Rapids to withdraw the moneys belonging to the estate on deposit in banks at Cedar Rapids, Iowa, and at Clinton, Iowa. Not one word is shown as to the necessity for this trip. It is plainly inferable, the special administrator having personal interests of his own in Iowa, that the trip was made in furtherance of those interests, and the benefit of the estate was made an excuse therefor. .But aside from this, it is beyond controversy that everything which the administrator did, he could have done by requests upon these banks to transfer these deposits upon forwarding to them certified letters showing his authority in the matter of the estate, and such, as this court, is well advised, is the usual practice of prudent administrators. To bolster up this claim the administrator testifies that on this trip “I succeeded in getting $257.25 as interest from the bank. I also succeeded in finding a contract on some property that my brother owned, which I formerly owned and sold him, and afterward I sold it for him and the contract had not been fulfilled; the payments had not been made, and the balance on that payment was $495. That contract I got.” The remainder of his evidence dealt with inconclusive journeys and inquiries which he made, prompted, as he says, “for the reason that there was a large shrinkage in my brother’s estate that he was reputed to be worth.” It strains credulity to believe that he succeeded in getting $257.25 as interest from the bank because the president was his “personal friend, ’ ’ and not because it was interest due on the deposit. It would require more convincing evidence to lead us to believe that the president of a national bank thus juggled with and illegally dissipated its depositors’ funds. But it

The heirs of the deceased sought to charge this special administrator with nine thousand dollars, admitted by him to have been borrowed from his brother shortly before that brother’s death. The special administrator sought to relieve himself from this, not under any denial of the receipt of these moneys, which he admitted, but by his own unsupported testimony that after having received these moneys there was a business settlement of his affairs with his brother, who was and for a long time had been owing him money, under which settlement the nine thousand dollars was accepted by him in payment of all his demands against his brother, so that at the time of his brother’s death neither stood indebted to the other in any sum whatsoever. This unsupported evidence of an oral agreement, made in the presence of nobody and evidenced by no writing, the court accepted to the fullest extent and ruled accordingly. It did this, we regret to state, in violation of positive law and against the overwhelming weight of the counter-showing.

This subject matter, as indicated, falls under two heads: First, the weight of the evidence itself, assuming its admissibility; and, second, the question of its admissibility. First as to the weight of evidence. Preliminarily it is to be noted that the evidence is self-serving in that it exonerates the witness giving it from a liability to the estate of his deceased brother in the sum of nine thousand dollars with interest, which liability, saving for his own testimony, is fixed against him. Second, the evidence is of oral admissions against interest by a man whose lips are sealed in death. What, then, 'does the law say of such evidence (assuming now its admissibility) ? The Code of Civil Procedure declares (section 2061, subdivision 4) that “the evidence of oral admissions of a party ought to be received with caution by the jury. ’ ’ In

What, then, is the evidence of the special administrator, and what is the weight to be accorded to it under these well-settled rules? In its essence it was that as a result of business transactions had with his brother in 1870, his brother owed him two thousand eight hundred dollars. “My brother was owing me from a transaction dated back in 1870.” As to this transaction he and his brother never had a settlement, and this principal sum with accrued interest formed the basis of the claim which he put forth in his account, and the basis of the oral settlement which he says he had with his brother just previous to the latter’s death. Second, he conveyed to

Here it may not be amiss to remember that he produced a similar copy of the destroyed will of his brother, by which he was devised one-third of the estate. This letter is as follows:

“Now, Brother Bent, I think that we should get our matters fixed up and know where we stand in event that we should meet with some misfortune. We should fix the Seville sale which you made up, as the matter has never been settled. You have the books and know the amount which was credited on them just before we closed out the bank. I think that the notes which you have and also Collins’ paper should be can-celled and returned to me and credited on' this account, which would leave a balance due me on the deal. You also have some notes which belong to me and which you hold the security for.”

What the special administrator says was the reply to that letter is here given:

“Los Angeles, Cal., May 2, 1911.

“Bro. Coll—

“If I am as well as I am now will start for Cedar Eapids about the 15th and as we are all liable to meet with accidents so we should be prepared to a certain extent, so you will find your notes enclosed which I have cancelled and paid in full. I shall also cancel the other note of $3896.00 that is in safety box in bank; also the one against Collins P. Emerson, Jr., paid. Hope weather will be settled by the time I get there. May this find you all well, and don’t worry about me, as I am far from being on my last legs.

“Benton.”

It is most significant that this so-called reply makes no reference to the letter requesting a settlement, makes no reference to a settlement, and upon the face of it is but another example of the dead brother’s generosity in forgiving the special administrator’s debts and returning to him the evidences of them. But in addition to the fact that the notes thus returned with interest upon them certainly equaled ten thousand dollars, we find the witness still importuning his brother to lend him money, and never intimating that the moneys which he received and hoped to receive are anything other than loans. Thus on December 30, 1912, after he has begged his brother to lend him money his brother sends him eight thousand dollars “to square him up,” and asks him whether this will be sufficient. In reply the witness writes an effusive letter of thanks, and continues: “Now you ask me the question whether the amount sent [$8000] was sufficient to square up. In reply would say that I could use five hundred more, but I am ashamed to ask it. That would place me out of the clutches of every individual and leave my indebtedness entirely with you.” Upon this he is sent another thousand dollars, and these two sums make up the nine thousand dollars in controversy.

It has been said that while the administrator’s claim is based upon an indebtedness of two thousand eight hundred dollars, which he asserts was owing to him by his brother in 1870, and which with accrued interest compounded he further says makes up the indefinite amount which he declares his brother owed him, he also testified to a land transaction whereby his brother took over the title to a farm which the witness owned, for five thousand eight hundred dollars, agree

The third element of indebtedness lies in the fact that the deceased brother purchased an interest in a bank in Miles, Iowa, and was for a time in partnership with Mr. Miles, the original owner of the bank. In time Mr. Miles sold his interest to Thomas B. Emerson for abont twelve thousand dollars, the bill of sale of all that interest running to Thomas B. Emerson, with no reference whatsoever to Collins. Notwithstanding the fact that this special administrator’s account charges upon an unsettled indebtedness due to his brother from him in 1870, which had increased by 1874 to two thorn sand eight hundred dollars, his evidence upon these matters is that he was a secret partner with his brother in this purchase and that his money, this two thousand eight hundred dollars, was a part of the purchase. Even more than that, he says that when his brother came to buy out Mr. Miles for twenty-five thousand dollars (though the purchase price declared in the bill of sale and transfer from Miles was about twelve thousand dollars) he took his payment of one-half of the twenty-five thousand dollars—twelve thousand dollars— in a valise and gave it to his brother. Here again the writings of the brother are in flat contradiction to the statement. Thus he writes to his brother:

“Bro. Coll. How will you be fixed for money about the first of March ? I may need a little. I shall make Mr. Miles a proposition when we come to settle up, to give or take. Don’t think he will sell, but should he do so will want to pay him every cent and I might want $10,000, at least what is coming to me.”

Later he writes to his brother to the same effect, saying that he will not want to exceed three thousand dollars, but asking him to be prepared to let him have that should necessity require it, and he adds, ‘1 Smith wrote me saying he would loan me $3,000, but I don’t want to borrow.” Thus it ap

This review of the evidence serves to establish the nature of the claims and demands which the special administrator declared existed against his brother and which form the basis of the settlement of their open account, dating back to 1870.

What, then, was that settlement? The evidence of it is the wholly uncorroborated testimony of a conversation had with his brother when the latter was on his deathbed. The special administrator gives two versions of this oral settlement had with his brother by which his admitted debt of nine thousand dollars was extinguished. He was present at his brother’s house in Los Angeles when that brother was in bed with his last illness. While there the latter’s “wife went down town, and while she was gone we had an opportunity of talking our matters over, and I said to him, ‘Benton, how will we arrange for this money you have let me have?’ He said, ‘I owe you on the Estherville land deal a little over three thousand dollars. I have paid to you, turned over to you in May when I was in Cedar Rapids, your notes, which was applied upon my account, and together with this six thousand dollars, will wipe out what I owe you and what you owe me.’ He says, ‘Is that satisfactory?’ I says, ‘Entirely so.’ ” Some weeks after, testifying again, he gives the following version: “I said to him, ‘How do you want this matter fixed that we have, this money that you have let me have?’ I said, ‘Do you want me to give a note?’ He said, ‘No, you don’t need to give me any note.’ He said, ‘I owe you on the Seville Manufacturing matter and I owe you on the Estherville farm and what you owe me on the nine thousand dollars one should offset the other. ’ He had turned me over some notes on May 11, 1903, and he said, ‘Is that satisfactory?’ and I said it was.” The “Seville Manufacturing matter” is the asserted original two thousand eight hundred dollars indebtedness which we have heretofore considered. The 1 ‘ Estherville land deal” involves the asserted debt of three thousand dollars due from the deceased to this plaintiff which, as before shown, is wholly disproved by the deceased’s own records, as is the evasive testimony of the special administrator concerning his interest in the bank. A slight, but unnecessary, computation, moreover, would show that, treating the two thousand

This is all the explanation offered for Ms execution and acknowledgment of an indebtedness of at least six thousand dollars, made without the slightest pressure or coercion, and made immediately after he testifies there had been a complete settlement with his brother, under which he owed Ms brother nothing—a settlement which itself was made neither in the presence nor with the knowledge of any other person.

The testimony of this special administrator stands alone. It is not corroborated In the slightest particular, for the testimony of Ms wife to the effect that she, too, understood that

The second consideration touching the admissibility of the evidence requires but brief consideration. Subdivision 3, section 1880, of the Code of Civil Procedure in terms forbids the admission of evidence in any proceeding against an executor' or administrator upon a claim or demand against the estate of a deceased person as to any matter or fact occurring before the death of such deceased person. Eliminating from consideration for the moment the fact that the man who was admittedly debtor to the estate in the sum of nine thousand dollars happened also to be its special administrator, apart from that relationship the ease presented is an admitted claim due to the estate, the validity of which the debtor seeks to destroy by a showing of an oral settlement and extinguishment of that claim. The theory of respondent, adopted by the court, is that the special administrator was not, within the meaning of the statute, seeking to enforce a claim against the estate, but was merely resisting a claim made by the estate against himself. Such is entirely too narrow a construction to be given of the statute. His method of resistance is to assert a counterclaim, and the mere fact that he is satisfied to ask for a cancellation of his indebtedness without asserting a right to recovery under this settlement in no wise militates against the fact that his evidence is essentially the evidence of a counterclaim. He declares that he had such a counterclaim; his account shows that it was a counterclaim upon a debt of two thousand eight hundred dollars arising in 1870, and with the lips of his brother sealed by death he is permitted to testify to a settlement exonerating him from liability upon a claim barred for years by the statute of limitations. This case in principle is controlled by Moore v. Schofield, 96 Cal. 486 , [ 31 Pac. 532 ], and Stuart v. Lord, 138 Cal. 672 , [ 72 Pac. 142 ], It appears, therefore, that the court in probate erred as seriously in admitting the evidence as it did in giving weight to it, and for both reasons the decree appealed from is reversed, with instructions to the court in probate to disallow the contested items and to charge the special administrator with the amounts of them.

Lorigan, J., and Melvin, J., concurred.