Taylor v. Taylor's Estate

Carpenter, J. The claimant, Elizabeth Taylor, recovered in the court below on three promissory notes which it was claimed were executed by decedent and held by her. It is contended that the court erred in not charging the jury to render a verdict in favor of the estate because (a) there was no evidence tending to prove the execution of the notes; and (6) there was no evidence of consideration. (a) We think there was abundant evidence of the exe — 662 — cution of the notes. Such evidence is furnished by the following testimony of Sarah Bradley: “Mr. Taylor told me that Lib [claimant] had notes against him. * * * “ Q. What notes was he talking about at that time? A. Those three notes I seen the last time I saw them at Ferris Center.” Proof of execution may also be inferred from the testimony of Hon. George A. Farr, a witness for plaintiff. He testified that he had seen decedent’s signature a number of times, and, in his judgment, the signature to those notes was his. (b) We are bound, also, to say that there was evidence of consideration. It is true that the notes did not contain the recital “for value receivedbut there is evidence that they were negotiáble in form, and there is a presumption that such notes, though lacking the recital just mentioned, are based upon a consideration. See Carnwright v. Gray, 127 N. Y. 92; Dean v. Carruth, 108 Mass. 242. As there was no evidence tending to prove want of consideration, the court did not err in refusing to charge that the jury must find not only that decedent signed the notes, but also that they must find “ by a fair preponderance of the evidence in this cause ” that they were based upon a valuable consideration. The proof of the execution of the notes made out a prima facie case, and it is only when there is evidence of want of consideration that there is imposed upon the plaintiff the burden of proving consideration by a preponderance of testimony. See Manistee Nat. Bank v. Seymour, 64 Mich. 73, 74; Farnsworth v. Fraser, 137 Mich. 296; Rood v. Jones, 1 Doug., at page 193; Young v. Shepard’s Estate, 124 Mich. 552. The trial court refused to charge the jury, as requested by the estate, that these notes were in the nature of a bequest, and that the burden of proving nonpayment rested, upon claimant. The notes certainly were not in the nature of a bequest, and it is an elementary principle of law — 663 — —a principle which we must hold as applicable though an estate is party to a suit-—that the burden of proving payment rests upon the party who claims to have made it. The court therefore properly permitted interest to be computed upon the assumption that payments had not been made. Claimant was permitted to testify that she did not have the notes involved in suit; that they were lost while owned by her and in her possession; and she was also permitted to testify to the particularity of the search made to find them. It is contended that, in giving this testimony, claimant violated the statute (section 10212, 3 Comp. Laws) which forbade her testifying to facts equally within the knowledge of the deceased. In giving this testimony, claimant w'ent no further than it was necessary for her to go to establish the loss of the notes. This she was compelled to do in order to furnish an excuse for not producing them. Appellant’s contention that she thereby testified to the existence of notes executed by decedent will not bear anaylsis. From claimant’s testimony that she still owned, could not find, and had lost the notes involved in the suit, no inference that those notes were executed by her husband—indeed, no inference of any fact known to deceased—could be legitimately drawn. The testimony was properly admitted. See Choate v. Huff, 4 Tex. App. Civ. Cas. 480. It was not error for the trial court to exclude testimony tending to prove that claimant had another husband living when she married decedent, and that she had been unchaste. See People v. Mills, 94 Mich. 630; Knickerbocker v. Worthing, ante, 224. While claimant was on the witness stand, counsel for the estate introduced a note—not one of those for which she recovered judgment—and proved by her that she herself signed her husband’s name thereto as maker. Complaint is made because on redirect examination claimant’s counsel was permitted to show why, and the circumstances under which, she signed said note. We think — 664 — this testimony was properly permitted. It was needed to rebut the inference—an inference suggested by counsel for the estate—that might otherwise be drawn that claimant had also signed her husband’s name to the notes in suit. On the cross-examination of a witness who had given testimony tending to prove the genuineness of decedent’s signature to the notes in suit, counsel for the estate presented to him certain documents, not in evidence, purporting to be signed by deceased, and asked him if such signatures were genuine. The witness declined to answer unless he was permitted to examine the documents. Complaint is made because the trial court sustained his position. The decision of the trial court was correct. See North American Fire-Ins. Co. v. Throop, 22 Mich., at pages 160-162. The trial court very properly refused to permit counsel for the estate to introduce these signatures in evidence. As they had not been identified, they were clearly not admissible. The court permitted claimant to use in testimony the deposition of Sarah Bradley, which had been taken for the hearing before the commissioners on claims. This deposition was taken under sections 10136-10143, 3 Comp. Laws. Section 10142 reads: “ Depositions under this act may be read and considered in evidence at the trial or on any hearing, and on appeals and retrials of the same cause of action, but the court shall have power to regulate the use, to prevent abuses thereof, and may order the retaking of testimony, or the production of the witness, if within the jurisdiction, notwithstanding that his deposition has been taken.” The statute above quoted is sufficient authority for using the deposition on appeal. But it is claimed that there was no showing that the witness was then sick and unable to attend court. The record does not disclose that this objection was made in the trial court. Moreover, it appears from the deposition that the witness was over 80 years of age and unable to travel; and it cannot, therefore, be presumed, under the case of Emlaw v. Emlaw, 20 Mich. 11, — 665 — relied upon by appellant, that the cause for taking the deposition had been removed. Appellant contends that the court erred in not admitting in evidence the files of the probate court showing the will and the administration of the estate. It is contended that by this it would have appeared that claimant accepted the provisions of the will, and that those provisions are inconsistent with her right to maintain this suit. It is a sufficient answer to this contention to say that, in our judgment, those provisions did not affect claimant’s right to recover in this case. Complaint is made because on the cross-examination of George Taylor, a witness for appellant, claimant’s counsel was permitted to show his conduct toward claimant, his stepmother. We think that the door for the admission of this testimony was opened by appellant when, on direct examination, this witness testified that his relations to his stepmother were friendly. In concluding his charge to the jury, the trial court said: “ It is for you to say * * * as to whether all of the witnesses that have been sworn here have told the truth. * * * If you find that they have not, of course you will reach a verdict from the evidence which under all the circumstances you think is true, when you have collected that evidence together—if there is more of it that satisfies you that the claim of the claimant is valid thdn there is on the other side, taking everything into consideration, you will find for the claimant; if there is not, you will find for the estate.” Appellant contends that, as all the testimony relating to the execution of the note and its consideration was produced by claimant, this charge was misleading, and, in effect, told the jury to render a verdict for the claimant. This argument has no foundation, if the language is, as it should be, properly construed. Construing it in connection with the remainder of the charge, as it certainly should be, the jury were told that, after rejecting the — 666 — testimony of witnesses discredited by them, their verdict , should be for claimant, if there was “ more ” testimony— that is, a preponderance of testimony—tending to establish the validity of her claim; if there was not, their verdict should be for the estate. As thus construed, the charge was correct, and is not open to the objection urged by appellant. We have examined appellant’s other complaints, and, in our judgment, no other assignment of error demands discussion. The judgment is affirmed, with costs. The other Justices concurred.