Estate of Seibert

Opinion by Rice, P. J., Whether the transaction between Agnes W. Seibert and the executors of her husband’s estate was a gift, a loan, or an advancement under circumstances entitling her to subrogation to the rights of the creditors whose debts were paid was a question of fact. Its decision depended, to a very large extent, upon the veracity and recollection of witnesses. According to the testimony of the executor it was unquestionably a gift. He is the only living witness who was present when the transact tion was consummated, and his testimony is corroborated by the undisputed fact that, although Mrs. Seibert lived more than fourteen years after the transaction, and more than ten years after the executor’s account was confirmed, she never demanded repayment of the money, or asserted in any way that she had any claim therefor. The testimony of H. C. Seibert relates to conversations had prior to the advancement of the money. It is not irreconcilable with that of the executor, and even if it were more seriously conflicting it would be entitled to less weight than that of the executor, because he does not pretend that he was present when the transaction was consummated. The contention that Mrs. [518] Seibert paid tbe money as rent, in ignorance of ber legal rights, is wholly unsupported by any direct testimony, and there is no evidence of any kind, from which the fact can be inferred fairly. We have not overlooked the receipt of April 1, 1880, in which the money was designated as rent; but this was given sometime after the money was advanced, and cannot affect the question, for these reasons: First, there is no evidence that the person who conceived the idea of designating the payment as rent, and who prepared the paper and presented it to the executor for his signature, had any authority to act for Mrs. Seibert, and there is evidence that she denied having had anything to do with it. In view of the executor’s explanation of the circumstances under which the paper was signed, we fail to see how it-shows that Mrs. Seibert was induced to pay the money by his fraudulent representation that she was under legal compulsion to pay rent for the mansion house. She never asserted it, and the allegation has nothing now to support it but pure surmise. But, second, the character of the original transaction is to be determined by what occurred at the time, and there is not a word of testimony that, at the time the money was paid, or before, anything was said or suggested as to her liability to pay rent for the premises. On the contrary, by all the testimony, including that of the appellant’s witness, it was paid so as to avoid the necessity of a sale of the mansion house in which she lived, and there was ample testimony to warrant the conclusion that there was no understanding or expectation on her part that it was ever to be returned to her, or that she was to derive any other advantage therefrom than the continued use and occupancy of the mansion house. Having arrived at this conclusion the court properly held that the attempt to revive and enforce this as a claim against the estate, after'her death and after a lapse of over fourteen years, must fail. “ The benefit of substitution is only to be applied in a clear case, appearing from the proceedings in the case:” Chancellor Kent, 4 Johns. 546. This is not such a case. And, even if Mrs. Seibert ever had the right to subrogation it was lost by her laches: Fink v. Mahaffy, 8 W. 384; Bank v. Potius, 10 W. 148; Rittenhouse v. Levering, 6 W. & S. 190, 198; Stout’s Admr. v. Stout’s Admr., 44 Pa. 457; Allegheny V. R. R. Co. v. Dickey, 131 Pa. 86, 97. The decree is affirmed and the appellant is directed to pay the costs.