Fritz's Estate

Opinion by Mr. Justice G-reen, ■ There is nothing practically in controversy in this case except the sufficiency of the considei’ation for the assignment of Benjamin Fiitz of his expectazicy in his father’s estate, to his son Alfred Fritz, the appellant. It has been many times decided, and is not at all controverted, that such azi assignment is valid if founded upon a sufficient consideratiozi. The auditor in the court below decided as a matter of fact that the appellazit did furnish the moziey, to the amount of $625, to his father, in consideration for the assignment. If the money was furnished it was sufficient in amount to cozistitute a good and valzzable cozisideration for the assignment. The auditor had the witnesses before hizn, he heard their testimony, he could observe their manner of testifying, and was therefore, able to judge of their credibility. He accredited thezn as witnesses by accepting their testimony as true, and basing his conclusions [163] of fact upon it. In point of fact no attack was made upon the character of any of them as truthful witnesses. Not one of them was contradicted by any witness as to any statement made. On the contrary the only witness examined for the appellees, F. H. Hersh, corroborates Alfved Fritz in every particular, and when he said the $300 which he loaned Fritz was repaid in a few days, he corrected himself on his cross-examination, and .said he did not receive the money and did not know when it was paid back, and in fact knew nothing at all about it except that his firm did not lose the money. Upon the supposed fact that this money was paid back in a few days the learned court below, principally, inferred that the money was never really used by Benjamin Fritz but was handed back to his son Alfred in a few days and by the latter was paid to Hersh, and therefore the transaction was collusive and done with intent to defraud the creditors of Benjamin Fritz. If the testimony justified this inference, the conclusion would be warranted. But Benjamin Fritz testified positively that he used the money to pay ■a doctor’s bill, some debts he owed, and rent and necessaries for his family. He also testified positively that he never returned any of the money to his son. Alfred Fritz also testified that his father did not return any part either of the $325, or of any of the other sums he had loaned him, and that he had not paid him anything on account of any of the loans. He also admitted that he had repaid the $300 to Hersh not long after he borro wed'it, but did not say how soon after. He did say however that he had earned the money he paid to Hersh, not only in working over time, but in painting and in other work. In order to justify the inference that the moneys, claimed by Alfred Fritz to have been paid to his father, were not paid, it is necessary to find that both of them were guilty of perjury and of fraud. Alfred Fritz had worked for eleven years for the same employers, and was still working for them. They had confidence enough in his integrity and his honesty, to lend him $300 upon his own request and without an}» security. One of his employers testified that Alfred had earned money by doing overwork though he could not name the amount. Without any contradictions of Alfred’s testimony, without any impeachment of his character as a truthful witness, with affirmative proof from the testimony of the appellee’s witness, corroborat [164] ing his testimony as to all material details, and in face of the clearest proof of his industrious habits and of his personal honesty and of the manifestly good opinion of him which must have been entertained by his employers, we think an inference cf either fraud or perjury against him is entirely too harsh, and cannot be justified. The auditor has found in favor of his claim with, of course, a better opportunity of judging of his truthfulness than either the court below or we can haye, and such finding of facts we must regard as the verdict of a jury, not to be disturbed except upon the clearest proof of mistake. We fail to find any such proof in the case. Fraud is not to be presumed but proved. We do not think it has been proved in this case and we do not feel at liberty to presume it. We are unable to find any testimony which will authorize such a presumption. Without further discussing the subject, although it is capable of much greater elaboration in the same direction, we think that the findings of the auditor should be sustained, and that it was error to reverse them. The assignments of error are all sustained. The decree of the court below is reversed at the cost of the appellees, and the record is remitted with instructions to distribute the fund in accordance with the first report of the auditor, but allowing the sum of $105 to Josiah Fritz.