
    In the Matter of the Petition of Ricardo Narganes for the Establishment of a Claim in His Favor against the Estate of His Testator, Cristobal N. Madan, Deceased. Ricardo Narganes, Appellant; Carlota Bachiller de Morales, Respondent.
    
      (Supreme Court, App. Div., First Dept.,
    
    
      April 3, 1914.)
    Executor and Administrator—Proceeding by Executor under Section 2719 of the Code of Civil Procedure to Recover a Claim from a Testator Based on a Written Instrument—Evidence of Delivery of Instrument—-Admission—Statute of Limitations—Promise to Pay Insufficient to Extend Statute of Limitations.
    In a proceeding by an executor under section 2719 of .the Code of Civil Procedure to recover a claim from the estate of his testator, who died January 12, 1904, the petitioner presented an instrument in the handwriting of the testator, dated June 2, 1897, admitting a loan by the petitioner to the testator of various sum-s of money, acknowledging the indebtedness for said amounts, and promising to pay the same from the proceeds of certain lands when sold. The only evidence as to the custody of the instrument was the testimony of the petitioner’s attorney that he received it from- the petitioner personally in February or March, 1913. The lands mentioned were sold in the year 1900, and- there was no evidence that the amount of the claim was not paid at that time.
    
      Held, that Although the possession of the instrument by the petitioner two years after the issuance of letters to him was not evidence of possession prior to the date of the testator’s death, so as to make it enforcible as an account stated or as a promise to pay a sum of money named, it had probative force as an admission made by the testator in his own handwriting.
    That since six years elapsed between the date of the instrument and the date of the testator’s death, the claim was barred by the six-year Statute of Limitations.
    The provision of the instrument as to the payment of the claim from the proceeds of land to be sold being unenforcible because of the lack of proof of the delivery of the instrument to the petitioner did not extend-the period of the Statute of Limiiations.
    Appeal by Ricardo Marganes from a decree of the Surrogate’s Court of the county of Mew York entered in the office of said surrogate on the 21st day of January, 1914, dismissing the petition herein and disallowing. appellant’s claim against the estate of the testator, of which estate claimant was executor.
    Carroll G. Walter, for the appellant.
    H. Linsly Johnson, for the respondent.
   Ingraham, P. J.

The testator died in the island of Cuba on the 12th day of January, 1904, a resident of the State of Eew York, leaving a last will and testament which was duly admitted to probate on March 13, 1911, and by which he appointed the petitioner his executor, and on the 4th of May, 1911, letters testamentary were issued to the petitioner. On June 17, 1911, the executor, Ricardo Earganes, instituted a proceeding under section 2719 of the Code of Civil Procedure to recover from the estate of his testator a claim amounting to $3,330 and interest. To prove this claim the petitioner presented an instrument which was proved to be in the handwriting of the testator and was dated June 2, 1897. That instrument admitted a loan by the petitioner to the testator on July 15, 1895, of $1,060 cash, for letter of credit $300, cásh loaned on March twenty-fourth $40, check for payment of taxes in Louisiana $250, and interest on those amounts at ten per cent, and this account was followed by this statement: “ I acknowledge to be indebted to Mr. Ricardo Earganes in the sum of One thousand nine hundred and twenty-two dollars which amount I promise to pay him from the proceeds to be obtained from the properties which appear to be in my name in the Parish of Livingston, State of La.

“ Eew York, June 2, 1897.

“(Signed) CRISTOBAL E. MADAE.”

The only evidence as to the custody of this instrument appears in the testimony of the petitioner’s attorney. He testified that he received this instrument from the petitioner personally in February or March, 1913. The petitioner, being the executor of the testator, his possession of the instrument two years after the letters were issued to him was not evidence that the petitioner had the instrument in his possession prior to the date of the death of the testator, or that the testator had ever delivered it to him, so that it could be the basis of a contract between the testator and the petitioner. The surrogate was clearly right in the conclusion that this instrument could not be enforced as an account stated, or as a promise to pay a sum of money named by the testator to the petitioner. From all that appears the petitioner might have found this paper among the papers of the testator after letters testamentary were issued to him. The fact that such an instrument was found with the testator’s papers after his death would negative the claim that there was any promise or agreement by the testator to pay any sum of money to the petitioner. For was there any evidence that the sum of money which the testator there acknowledged himself indebted to the petitioner had not been paid. The plaintiff claims, however, that it can be used as an admission made by the testator in his own handwriting that the petitioner had advanced to the testator the various sums therein specified on the dates named, and I am inclined to think that it had probative force as such an admission, and, therefore, there was evidence before the surrogate which was uncontradicted, that the petitioner had advanced to the testator the various sums therein specified. The instrument, however, is dated June 2, 1897, and the testator died January 12, 1904. Six years had, therefore, elapsed between the date of the admission and the date of the testator’s death, and the claim was barred by the Statute of Limitations unless there was an enforcible promise to pay from the proceeds to be obtained from the properties in the State of Louisiana; but if this instrument cannot be used as evidence of a promise because of the lack of evidence of its delivery to the petitioner, this provision as to the payment cannot have the effect of extending the period of the Statute of Limitations. The evidence is that the property of the testator in Louisiana was sold in the year 1900. If this was a promise by the testator to pay this sum of money which he then admitted was due to the petitioner, it would then become payable, but there is no evidence to show that it was not paid .at that time. The fact that the testator had written that he intended to make that payment out of the proceeds of the land in Louisiana did not make it a binding contract'between himself and the petitioner unless the writing was delivered to the payee and he had assented to it. So,' as the mere production of the instrument by the petitioner, who.is also executor of the estate, was no evidence of the delivery of the instrument, or that it ever became a contract, and as the admission of the receipt of the money could only be used as an admission that the testator had received from the plaintiff various sums of money prior to June 1, 1897, it seems to me that the claim was barred by the Statute of Limitations, and the surrogate was right in disallowing the claim. The ninth finding, however, was not sustained by the evidence and it is reversed.

The decree should be affirmed, with costs.

Clarice, Scott and Dowling, JJ., concurred.

Hotchkiss, J.

The decree appealed from expunged the claim filed by the executor against the estate. Several questions have been argued but the sole question of importance is whether the evidence was sufficient prima facie to prove that a debt existed. The only evidence of indebtedness was a writing, the body of and signature to which was in the handwriting of the deceased.

This instrument is headed “ Cristobal H. Madan to R. ISTarganes,” following which are three items of cash loaned, with interest, and one item “ to check for payment of taxes in La.” To this is added an acknowledgment of indebtedness for the aggregate of the several items preceding, and a promise to pay the same from the proceeds of certain lands when sold, which lands were thereafter sold by the deceased. Eo evidence whatever was offered to show that any loans had in fact been made by check or otherwise, nor did it appear when or how the executor became possessed of the writing. The executor rested his case on proof of the handwriting of the deceased and on the presumption which he claimed arose from his possession of the writing, which he produced and put in evidence. Eo evidence was offered on behalf of the estate.

I think the claim was properly rejected. The cases in which the question now flatly presented has been considered are not decisive, because in each there was some evidence of extrinsic facts bearing upon the question of delivery, but the language of the courts affords support to a conclusion adverse to the sufficiency of the evidence to prove a debt in the present case. (Matter of Humfreville, 6 App. Div. 535; Cowee v. Cornell, 75 N. Y. 91; McMahon’s Estate, 132 Penn. St. 175; Gamble v. Gamble, 11 Ala. 966; Elliott v. Elliott, 1 Dev. & Bat. Eq. [N. C.] 57, 65.) On principle I think no other result can be reached. Delivery is a question of fact and commonly one of intent, and like all similar questions, may be presumed from the existence of other facts from which the principal fact is naturally if not necessarily to be inferred. (Justice v. Lang, 52 N. Y. 323, 329.) But, as was said in United States v. Ross (92 U. S. 281, 283) : “ Eo inference of fact or of law is reliable drawn from premises which are uncertain.” This is the reason for the rule that an inference may not be based upon an inference. (People v. Razezicz, 206 N. Y. 249, 269, 270.) The presumption of delivery which arises . from possession is based on the inference that the obligor has intentionally parted with his obligation for otherwise it would not be in the hands of an adverse holder. Possession alone without explanation, while evidence of ownership, has been said to be the “ lowest species of evidence,” and “ if the custody and possession is shown to be equally consistent with an outstanding ownership in a third person, as with a title in the one having the possession, no presumption of ownership arises solely from such possession.” (Rawley v. Brown, 71 N. Y. 85, 89.) Where the situation is, as here, such that possession may have been obtained by the obligee without any act of delivery by the obligor and wholly by reason of the opportunity afforded by the trust relation in which the obligee stood toward the obligor, giving him access to the papers of the latter with the right and duty to possess himself thereof, I think any presumption based on the theory of adverse possession must fail. The authorities are numerous that until delivery, one who executes a deed or obligation has a locus pocnitentice. Furthermore, if the debt has been paid by the obligor, it would be natural to find in his possession the instrument by which it was evidenced. The situation, therefore, presents two circumstances (non-delivery and payment) under which it would have been quite natural for the deceased to have had possession of the paper at the time of his death, and in either even possession would have passed to the executor by virtue of his office. That any presumption of delivery or of indebtedness should not be taken to arise under such circumstances is further supported by the rule which requires a claimant in the situation of this executor to support his claim by proof of the most satisfactory character. (Matter of Humfreville, supra; Elliott v. Elliott, supra.) It is argued that the defense of payment was not pleaded and hence is- not open to the respondent. The answer is plain. The burden was on the executor to establish a debt and this he failed to do. Evidence under a plea of payment becomes relevant only where a debt has first been shown to exist.

The decree should be affirmed, with costs.

Einth finding reversed and decree affirmed, with costs. Order to be settled on notice.  