Freehart v. Stanford's Est.

HasYRTon, J. This was a probate appeal. In county court, Freehart, who was claimant, declared in assumpsit. A plea in offset was filed in behalf of the defendant estate. Trial was had by the court and a finding of facts was filed. The court disallowed two items claimed by the estate. The items were as follows: “To note given up'. ... . . .,. .,........$ 9.60 | To- Watson note . .......j. 68.53” The finding of facts and the statement of exceptions are embraced in one instrument, and all that is said therein about these items is the following: “There was no evidence tending to show that said two1 items should be allowed. They were charged .on the book of the testate, page 180 of exhibit 1, but we hold that they were not properly items of book charge and so exclude the book as to those items to which the estate excepted.” The character of the book, page 180 referred to, and the course of business between the parties may, or may not have been such as to make one or both of these items admissible. Post v. Kenerson, 72 Vt. 341, 47 Atl. 1072, is an instructive case. However, there is nothing in the recitals in the “finding of facts,” or on the face of the page itself, warranting the conclusions that would have to be drawn to sustain the exception and put the court in error, and error is not to be presumed. It is, in substance, stated in the “finding of facts” that the estate offered pages 28 and 29 of the book containing said page 180, for the purpose of showing a course of dealing as to charging and crediting notes on book, and as tending to show that the charges in dispute were made under an implied agreement, and so were properly made. With regard [40] to these pages it is stated that they were in the handwriting of the decedent. These pages were excluded and to their exclusion the defendant excepted. On these pages there are entries of settlements which purport to be signed by both the decedent and Freehart. The statement that these pages were in the handwriting of the decedent, taken literally, means that the decedent signed Freehart’s name. But assuming that the court did not mean this, and that Freehart’s name was signed by himself, and that so he had looked over these pages of the decedent’s book from time to time, still the entries which relate in some way to notes are so few and so remote in date from the dates of the items in question, and, standing as they do without extrinsic explanation, are so far uncertain in their signification, that we cannot say that these pages 28 .and 29 should have been received. Judgment affirmed.