Appeal of the Pennsylvania Co.

Mr. Justice Paxson delivered the opinion of the court, There is no dispute as to the fact that, on the 29th of December 1869, Henry Etting, the testator, received from the appellee, his sister, the sum of $1000 for investment on her account. She says in her deposition that she never received this money from him; that she did not know that the money had ever been invested for her; she did not think it had. The books of the testator contained no trace of any such investment. At the time of the receipt of the $1000 the parties were living together at a boarding-house in the [106] city of Philadelphia. It was conceded that for several years prior to his death the testator had expended about $1000 per year for the support of his sister. He also gave her, by his will, the income of $40,000 for life, with the right to bequeath $5000 of the principal. Whatever may be the merits of this controversy there can be no ground to infer, in the face of these facts, that Mr. Etting intended any wrong to his sister. He cannot give his version of thp transaction for he is dead. The counsel representing his estate allowed the appellee, who is the claimant here, to testify as to her recollection of it. If there is a difficulty in arriving at the exact truth it is, in part at least, owing to the absence of documentary proof, the result of the entire confidence between the parties. Had the case rested here, it is clear the claim of the appellee would have been barred by the statute. But it appears that, on the 8th of November 1871, a registered bond of the Lehigh Valley Railroad Company, for $1000, was issued to the appellee. The auditing judge finds that the $1000 received by the testator, on the 29th of December 1869, went into the purchase of this bond. There is nothing in the record to support this finding beyond the fact that the two sums are equal in amount. While the evidence has not been sent up, I infer from the adjudication of the court below, that Miss Etting’s statement, and the stub of the bond book of the Le-high Valley Railroad Company, were all the judge had to throw light upon this subject. He says of the former : “ She says she never owned a bond ,of the Lehigh Valley Railroad Company, and never transferred any such bond to her brother.” That she had forgotten, or never fully understood this transaction, as suggested by the court below, seems probable from the fact that, on the 20th of February 1872, she executed a formal power of attorney to transfer the bond. Under this power the testator the same day transferred the. bond to-himself. This transfer is made the subject of the present claim, the court below holding that the burden of proof was upon the appellants to show that Mr. Etting had accounted to his sister for the proceeds of the bond; and inasmuch as this transaction ‘occurred within six years, that it ■was not barred by the statute. The paper referred to is called a power of* attorney. But it is something more. It is under seal, is irrevocable, and is expressly stated to be “for value received.” An ordinary power of attorney to transfer stock is not irrevocable and does, purport to be for value. The instrument in question is prifna facie a sale of the bond to the person in whose favor it was made. It is precisely, such a paper as is in daily use in the stock market, and is only given in case of a sale of the stock. Upon its face it imported a sale of the bond to Mr. Etting, the testator for value, with an irrevocable authority to him to transfer it to himself. Its legal effect is precisely the same as if it had contained the words “ in [107] consideration of the sum of $1000 I authorize Henry Etting,” &c. It closely resembles the case of the delivery of a conveyance of real estate or other property, containing a receipt for the payment of the purchase-money. While such receipt is not conclusive of such payment and may be rebutted, it has always been held to be prima facie evidence. The court below held that the power of attorney was presumptive evidence; that the testator had not paid value or accounted for the bond. In other words,.the court reversed the burden of proof and held that the appellee’s declaration, under her hand and seal, that she had received the value of the bond, created a presumption that she had not. This, too, in the face of her testimony that she had never owned such a bond. There is not enough in the ease to justify a decree against the appellants. There is not sufficient light. It is easy to make a claim against a dead man’s estate. It is of the highest importance that such claims, when- stale, should be scrutinized. Looking at the surroundings of this case there is nothing to commend it to our favorable consideration. It was barred by the statute when the testator died. The appellee made no claim upon him during his lifetime, nor did she ever speak to him upon the subject. In view of their relations —the mutual confidence — the generous conduct of the testator to his sister, it is not likely that their business intercourse was conducted upon strictly business principles, or that care was taken to preserve the evidence of payments. The memory of the appellee was evidently at fault in regard to the Lehigh Valley bond, which, although standing in her name and subsequently transferred by her, she had entirely forgotten. Her memory may have been equally defective in regard to other matters, particularly the payment of the $1000 in controversy, its investment or application for her benefit by the testator. While this does not necessarily follow, it is suggestive of a scrutiny into the merits of a claim made after so great a lapse of time, and under circumstances which render it difficult to ascertain the very truth of the case. The decree is reversed at the cost ,of the appellee. Sharswood, Mercur, and Woodward, JJ., dissent.