Oller v. Bonebrake

[344] The opinion of the court was delivered, July 7th 1870, by Sharswood, J. The issues framed were very special. It was not a general one, whether John Hollinger had made advancements to any of his children in his lifetime, but whether a small book produced before the auditor was the family book of said Hollinger, and then in four counts separately averring that he had charged each of his four children certain amounts as advancements to them respectively, and that the entries and charges in said book were accurate and true. This small book, made by a sheet of common writing paper folded in that form, contained charges as declared on against each of five children, but they were crossed or cancelled by black lines except one to his son Christian, who not having been heard from for many years, is presumed to be dead. It was called for by the plaintiff below from the custody of the defendants, and being produced it was offered in evidence, in connection with the testimony of a witness of declarations of the decedent about the time of the charges in the book. This was objected to so far as the book was concerned, not because it was a mutilated or cancelled document of which some explanation must be given before it could be admitted, but specifically and solely because the plaintiff in the issue, the guardian of Lewis Hollinger, had before the auditor persistently denied that the book produced was the record of the advancements made by John Hollinger to his children. Such a denial made by the guardian certainly could not estop him from offering the book in evidence, whatever effect it might have with the jury in discrediting the document. The accompanying declarations being cotemporaneous with entries made in the account and admitted to have been in the handwriting of John Hollinger, were clearly competent evidence: Hengst’s Estate, 6 Watts 86; Daniel King’s Estate, 6 Wharton 370. It was not an attempt to turn what was primd facie a debt into an advancement by the declarations of a parent made subsequently and in the absence of the child, which would have been inadmissible: Levering v. Rittenhouse, 4 Wharton 130; Haverstock v. Sarbach, 1 W. & S. 390; Yundt’s Appeal, 1 Harris 575; Miller’s Appeal, 4 Wright 57. But in truth the paper produced in the handwriting of the intestate did not need the aid of any such parol evidence. The sums were not charged against the children as debts and their amount precluded the idea that they were presents without some testimony to show this affirmatively: Daniel King’s Estate, 6 Wharton 370. There was evidence then before the jury, admitted without objection, even if not competent, that John Hollinger at the dates stated in the book, did pay certain sums to his children as advancements. We start with this, then, as a fact in evidence. Now the rule is a general and reasonable one that things shown once to have existed must be presumed to continue in that state until the con [345] trary is established by evidence, either direct or presumptive: Best on Presumptions 186. The principle ought certainly to apply in a case like this in support of the natural and reasonable presumption that a parent, who has made large advancements to his children as such, continued to intend that on h'is death intestate they should all he brought into account, so that they should share equally in his estate. What was relied on to rebut this otherwise inevitable conclusion was the fact that this document was found on the death of John Hollinger. among his papers in a cancelled state. It was contended that this fact by itself was sufficient to evince that there had been a change of his intention by which these advancements were converted into presents. This probably was so, and then, if the evidence in '.the cause had rested there, the affirmance by the court of the 4th point of the plaintiff below would have been an error. But we must interpret that affirmance by the general charge and the other evidence. In connection with that, the mere existence of the black lines across the book was not sufficient in itself to change the advancements charged in the book into gifts. An inquest upon a commission cié lunático inquirendo, produced by the defendants below themselves, found that John Hollinger had been of unsound mind for more than six years before his death. The primfi facie effect of this finding is not a point in dispute. How then did it operate upon the presumption of a change of intention in the decedent ? It threw the question open. A paper is produced from the possession of a man non compos mentis in a cancelled state. He had an interval and opportunity to cancel it before he became insane, but equal opportunity to do so afterwards. How can it be said that there is any presumption of law one way or the other ? The onus was still on the defendants below to meet and rebut the clear and incontrovertible, if not uncontroverted, fact that John Hollinger had made large payments to his children while he was of sound mind, intended by him at the time as advancements. They must show a change of that intention at a time when he was of sound mind. The prima facies of the finding by the inquest imposed this upon them. Stabitur presumptioni donee probetur in contrarium. It is a mistake, however, to suppose that positive direct and affirmative evidence was necessary for this purpose, or that it was required by any ruling of the learned judge below. It was for the jury under all the circumstances to decide this point. The presumption to be passed upon was one of fact, not of law. Like the case of two persons, perishing in the same calamity, where the question is, which survived, our law recognises no artificial rule of presumption from age or sex, but leaves it to the decision of a jury upon all the circumstances: Best on Presumptions 201. This question, as we understand it, the learned judge below did submit to the jury. He did not take it from them by the instruction that it was incumbent [346] on the defendants to satisfy them that Hollinger not only cancelled the entries, but that he did so in his right mind. The onus we have seen was thrown upon them by the special character of the issues and the course of the testimony. He nowhere instructed them that they might not infer from the evidence that the cancellation took place before the insanity commenced. He said in affirming the plaintiff’s 4th point that there was no evidence when the black lines were made nor with what purpose, and therefore their mere existence was not sufficient in itself to change the advancements charged in the books into gifts. The reasonable explanation of this answer, which we are bound to give it so as to render it consistent with the charge, is that inasmuch' as John Hollinger was shown to have been insane for a long period before his death, and there was no evidence at what time the black lines were drawn, those lines were not of themselves sufficient to rebut the evidence of advancements. Had he answered otherwise it would have thrown the onus on the plaintiff, and been a determination of the cause in law in favor of the defendants. If on the other hand he had meant to say that independently of the book itself there was no evidence in the cause from which the jury might infer that John Hollinger had determined to change the advancements into gifts while in a sound condition of mind, it would have been his duty to have so instructed the jury by a binding direction. There were, however, facts and circumstances bearing upon this question, to some of which the learned judge below adverted in his charge. On the one side were his second marriage, a very short time before he became insane, and a son born a few weeks afterwards. Yet it is not easy to see why we should conclude from that, without more, that he wished to deprive of an equal share of his estate this child whom he acknowledged as his son, and took care to secure his legal status as a legitimate child by marrying his mother before his birth. It is true that $3000 he had received from his first wife, the mother of his other children. He gave that as a reason for making the advancements. So far as it went, it would be good. But it would be no reason for dividing between them, out and out, $13,000, to the exclusion of his youngest child, not in being when the advancements were originally made. Instead of drawing black lines over the whole, had there been a credit entered or deduction made of $3000, it would have been a sensible, rational and intelligent act. Perfect self-possession and soundness of mind would have prompted the entire destruction of the document if he had meant to accomplish the result now aimed at, or else to have made a written will. In addition to considerations of this character, conversations between him and his nephew, up to the date of his marriage, a few weeks before his insanity began, showed no change of intention in regard to the advancements, [347] and the testimony of the widow was very positive and express that up to and after the birth of the last child, he spoke of not wishing to make any difference among his children. The court below in awarding the issue had an undoubted right, in their discretion, as the law then stood, to make the order .that the defendants should be examined as witnesses, and to confine their testimony to the question of the cancellation. They were interested and incompetent witnesses, and therefore they have nothing whereof to complain. Judgment affirmed.