In re Hummel's Estate

Collins, J. The real question in this case is whether the verdict was supported by the evidence. This verdict necessarily involved the finding that a certain promise to pay money to respondent, Hag-genmiller, was actually made by Mrs. Hummel, now deceased, shortly after the death of her husband, Joseph. It also involved an inquiry as to whether such' promise, if made, as alleged by Hag-genmiller, was a new and original one, supported by a sufficiefit consideration, or collateral merely to the promise to pay made by Mr. Hummel in his lifetime, and evidenced by the note held by Haggenmiller when Hummel died. It was claimed by the former that immediately after the death of Mr. Hummel the widow sent for him, and then, in consideration of his agreement not to present the note as a claim against the estate of the deceased, made a new and original promise, whereby she took the debt upon herself, and agreed to pay the amount of the same. Haggenmiller, relying upon the promise, did not present or file a claim against the estate, which, in value, was more than sufficient to pay the note; and in due course of administration the widow succeeded to the ownership of the entire property as the sole heir at law. The respondent abandoned the only method open to him to collect the amount [317] of bis claim out of tbe estate of Joseph Hummel, thus virtually discharging and satisfying the note. It is obvious that if a promise was made by Mrs. Hummel under such circumstances, there was ample consideration to support it. (Opinion published 56 N. W. Rep. 1064.) We have examined with care the evidence upon which the verdict was rendered, and agree with' counsel that it was somewhat meager and unsatisfactory. But it must be remembered that the alleged agreement was of many years’ standing, and that the testimony of Mr. Haggenmiller was unavailable on the trial. Mrs. Hummel, who is said to have made the promise, had died, and Haggenmiller’s testimony as to what was agreed upon between the parties was excluded under the statute. Necessarily, the testimony would lack clearness and certainty, but if, on the whole, it agreed with and supported the hypothesis which it was adduced to prove, it was sufficient. It was not disputed that when Hummel died, in 1874, Haggenmiller held his note, not yet due, for $300, and that out of his estate this amount could easily have been collected; that his widow was the heir at law, and duly acquired all of the property as such heir; that she sent for Haggenmiller immediately, stating that there was a note or debt which she must settle; that an interview took place, and that Haggenmiller never presented his claim against the estate; that afterwards Mrs. Hummel repeatedly acknowledged herself indebted to Haggenmiller, and up to a short time prior to her decease made regular payments to him as for interest upon the sum of $300. She paid interest upon this amount for at least 14 years. These were acts and circumstances which, as charged by the court below, the jury had the right to consider when deliberating on the case. They reasonably tend to support the, contention that a new and original promise was made, as asserted by respondent, and to sustain the verdict in his favor. Order affirmed.