Clark v. Hornbeck

The Ordinary. The appellant having exhibited his final account, as one of the executors of Isaac Clark, deceased, for settlement and allowance, exceptions were filed thereto by Hornbeck, the respondent. Upon the hearing of the exceptions, the court decreed that, in addition to the sum with which, the accountant charged himself, he be charged with the further sum of $950, for a note set down in the inventory against accountant as lost or destroyed by the deceased in his lifetime, with interest on the note from the date of the inventory, amounting to $1116.35. From this decree the accountant appealed. That a note for $950 was given by William Clark, the executor, to his father, the testator, is not denied. The evidence shows that the note was given several years before the testator’s death, and that it was in existence until about the year 1859, or 1860. The testator died on the 27th of March, 1861. There is no evidence that it was in existence at the death of the testator, nor is it shown when, how, or by whom, it was either lost or destroyed- The last time, so far as appears by the evidence, that the note was seen, was one or two years before the testator’s cloath, when it was delivered with other papers by the witness to the testator, he being at the time in the company of his son, the accountant. The note is not traced to the hands of the accountant, nor is it shown that he at any time had the charge, custody, or control of his father’s papers. It is admitted that the note has never been paid. The only question is, whether the evidence before the Orphans Court was sufficient to justify the court in charging the accountant with the amount of the note. It is urged, on the part of the appellant, that the judgment below is erroneous, inasmuch as the loss of the instrument upon which the .recovery was sought, was not affirmatively proved. The principle that the party seeking to recover upon a lost instrument must prove the loss affirmatively, is not questioned But the rule does not require direct and positive evidence of [450] the fact. The loss of a paper, as well as any other matter of fact, may be proved by presumptive evidence. Proof that the paper cannot he found, due diligence having been used in searching for it, is sufficient to raise the presumption of loss, and let in evidence of its contents. Minor v. Tillotson, 7 Peters S. C. R. 99; 1 Greenl. Ev., § 558; Taunton Bank v. Richardson, 5 Pick. 441. The party by whom the loss is suffered, or through whose agency it occurred, though a party to the record, and directly interested in the event of the suit, (independent of the statutory provision, rendering interested parties competent witnesses,) was permitted to prove the fact of the loss. But competent proof of the loss is by no means confined to such direct testimony. So narrow a limitation of the rule, would necessarily defeat a recovery in all cases where a suit was brought by executors upon a note lost by the testator in his lifetime. If the person to whom the paper belongs, or who by law lias the custody of it, or to whom it has been entrusted by another, testifies that he has made diligent search for it where it was likely to be found, it is sufficient evidence of its loss. So, proof of the destruction of a trunk containing the papers of a deceased person, or an unsuccessful search among the papers of the deceased by the executor or person having them in possession, affords presumptive evidence of loss, and justifies the admission of secondary evidence of the contents of a missing paper. Jackson v. Neely, 10 Johns. R. 374; Caufman v. Congregation of Cedar Spring, 6 Binney 59; Turnipseed v. Hawkins, 1 McCord 272. In Sterling v. Potts, 2 South. 776, and in The Governor v. Barkley, 4 Hawks 20, the objection was not that a search for a missing paper among the papers of a deceased party may not be satisfactory evidence of the loss, but the objection was, that the executor or administrator, who was the legal custodian of the papers, was not called. All that the law requires, as a ground for the admission of secondary evidence, is a reasonable assurance that evidence [451] of a higher nature is not withheld or suppressed by the party offering it. It is suggested that the evidence offered proves, either the loss of the note, or its destruction by the testator; and in case of voluntary destruction by the testator, secondary evidence of its contents is inadmissible. This objection presents the simple question, whether the legal presumption arising from proof that the paper cannot be found, is that the paper is lost, or that it has been intentionally destroyed ? Asa general rule, it is clear the legal presumption will be that the paper is lost. A party will not be presumed, in the absence of all evidence of the fact, voluntarily to have destroyed an instrument, which he was interested in preserving. Foster v. Mackay, 7 Metcalf 537. If such were the legal presumption, no recovery could ever be had upon a lost paper, where the holder who suffered the loss was dead. The presumption of the voluntary destruction of the instrument would exclude all secondary evidence of its contents. Broadwell v. Stiles, 3 Halst. R. 58; Vanauken v. Hornbeck, 2 Green's R. 182; Wyckoff v. Wyckoff, 1 C. E. Green 401. Where, as in the present case, the suit is brought by the executor of a father against a child, to recover upon a note alleged to be lost, slight circumstances would be sufficient to raise the presumption that the note was intentionally destroyed by the father to relieve the son from liability, in order to effect a distribution of the testator’s estate among his children, in accordance with his wishes. But there is not the slightest circumstance in the evidence to give countenance to such a conclusion. It is objected that the note may have been negotiated, and the court should have required that the appellant be indemnified against all further liability upon the note, before requiring him to pay it. But there is no evidence that the note was negotiable. Whore it does not appear whether a lost note was, or was not, negotiable, the court will not presume it to have been negotiable ; or, if negotiable, that it has been endorsed in blank. [452] Pintard v. Tackington, 10 Johns. R. 104; McNair v. Gilbert, 3 Wend. 344; Edwards on Bills 302; 2 Parsons on Notes 200. The note is shown to have been in the hands of the payee, long after its maturity, and after a payment had been made upon it. The existence, amount, and loss of the note, are satisfactorily proved. It is shown that the appellant acknowledged, both before and after the death of the payee, that he had given the note, that he had never paid it, and his willingness to pay it, whenever produced. I see no just ground upon which his refusal to pay it can be based. The mere fact that its precise date and terms are not proved, is not material. He is charged with interest only from the date of the inventory. The costs were properly charged against the estate in the hands of the appellant. The burden does not fall upon him alone, but upon all the parties interested in the estate. The decree is affirmed with costs.