
    (86 South. 667)
    No. 23517.
    Succession of MANION.
    (March 1, 1920.
    Rehearing Denied Nov. 29, 1920.
    Dissenting Opinion Nov. 30, 1920.)
    
      (Syllabus by Editorial Staff.)
    
    1. Executors and administrators &wkey;>l05 — -Succession; where dividend was solely for widow, executor not liable for failure to deposit.
    Where the succession of a decedent was indebted to a company which furnished the money to pay its debts and a dividend was declared by such company in.order that a drawing account might be created for the widow, with the express understanding that other shareholders should' not withdraw any part of the dividend from the business which stood in need of all the funds it could obtain, the executor was not liable for the statutory penalty for failure to deposit the dividend in a bank on theory it was money coming into his hands for the succession.
    Monroe, C. J. dissenting.
    On Rehearing.
    2. Statutes <&wkey;H7(l) — Act restricting parol evidence not broader than title.
    Though the provision of Act No. 207 of 1906, declaring that parol evidence shall be incompetent to prove any debt on the part of the decedent unless an action shall have been brought within 12 months after death, be construed as a statute of limitation or prescription against the admissibility of parol evidence, it is not invalid as being broader than the title, act being entitled one “To limit the admissibility of parol evidence to prove any debt or liability of a party deceased.”
    3. Executors and administrators &wkey;>22l (3) — Succession; parol evidence inadmissible to establish claim against succession, action not having been brought within 12 months.
    Where no proceedings were taken on a claim against the succession of decedent until more than 12 months after death, at which time .the executor having discovered an instrument reciting “5,000.00 of this amount is the property of W. or its equivalent of 5,000.00 value as quoted or its worth in the open market of five shares of Little Rock R. R.,” which was signed by the decedent, parol evidence by the executor who was an adverse witness to establish such claim is inadmissible under Act No. 207 of 1906, declaring that parol' evidence shall be incompetent to prove any debt of a decedent except it consist of the testimony of at least one credible witness, or except it be to corroborate a written acknowledgment signed by the debtor, or unless an action upon the asserted indebtedness shall be brought within a delay of 12 months after the death, for the writing did not show the nature of the claim, and the last provision must be construed as a limitation and not as rendering parol evidence competent, for that would make parol evidence admissible against the estate of decedent, when not competent under Civ. Code, art. 2277, against one living.
    Provosty, J., dissenting.
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    In the matter of the succession of Martin Manion. Opposition of J. E. Manion to allowance of the item of $5,000 which appeared in the final account of Martin H. Manion, executor, as a debt due by the succession to the succession of William J. Manion, deceased. From a judgment for the opponent, the executor appeals.
    Affirmed.
    Mark M. Boatner and Herbert W. Kaiser, both of New Orleans, for appellant.
    Dart, Kernan & Dart, of New Orleans, for appellee.
   PROVOSTY, J.

Martin H. Manion, son and executor of Martin Manion, deceased, filed an account of his administration. John E. Manion, brother of the executor, opposed an item of $5,000 which appeared in the account as a debt due by the succession to the succession of William .J. Manion, a deceased brother of the executor and of John E. Man-ion.

The debt is evidenced by the testimony of the executor and by the following document:

“5,000.00 of this amount is the property of Wm. J. Manion, or its equivalent of 5,000.00 value as quoted, or its worth in the open market of five shares Little Rock R. R.
“[Signed] M. Manion.”

Manion, father, had been retired from business for some years when in January, 1916, wishing to have something to occupy his mind, he expressed the desire to resume an active part in the management of the business of Manion & Co., a plumbing supply concern in which he held one Or two shares of stock, and of which his two sons, Martin H. and Wm. J., were the managers and large stockholders. William suggested to the old gentlemen that he take out $5,000 of stock nominally for himself but in reality for William, to be paid- for by William and this .was done; William turning over $5,000 of the bonds or shares of stock to the Little Rock Railroad Company to his father, to be sold and the proceeds used in paying for the $5,000 of stock thus to be taken out. The matter was discussed for several days. The executor testifies positively to all this, and that the $5,000 was never reimbursed or returned in any way to William. One year thereafter William died, and 10 days after William the father died. The entire burden of the management of the business fell upon Martin H., who besides was carrying on a considerable law-and notarial business. Martin H. Manion caused himself to be appointed administrator of the succession of his brother, and as notary made the inventory of -the succession. The claim now in question was not mentioned in the inventory, nor thereafter in the course of the settlement of the succession. In May, 1917, Martin H. Manion filed a provisional account as testamentary executor of liis father’s estate, and made therein no mention of this claim. He says that he had forgotten all about the transaction, and that he only remembered it some two months before the filing of the account now being opposed, in September, 1918, when his .memory was refreshed, or revived, by his - coming across the document herein-above transcribed, which he found in his father’s drawer of the safe of Manion & Co. together with an old spectacle case and a pencil.

There is no denial of the genuineness of this document. The contention is that it does not substantiate the claim; that it fails to do so even when read in connection with the testimony of the executor.

The verity of this testimony is not expressly challenged: only its sufficiency, but every little circumstance that might tend to discredit it is dwelt upon and put in as strong a light as possible. We find no sufficient reason for doubting its entire candor. It is as nfuch against the pecuniary interest of the witness as against that of his brother; each must pay one-third of the debt if it is due, . and, whatever ill feeling the witness may entertain towards his brother, it could hardly induce him, a lawyer and a man of high standing, to deliberately perjure himself.

While it may be strange that the witness should have thus entirely forgotten this transaction and then later on remembered it so vividly, even in its details, very much stranger freaks of memory' than this are not so very uncommon. See Moore on Facts, Chap. Memory, Rubric, Memory Revived or Refreshed, § 833 et seq. The question cannot be as to whether the transaction in question did take place, for the document is an irrecusable witness to that fact. The question must be only as to whether there was a reimbursement; and on that point the testimony of the witness, as much against his own interest as that of his brother, is positive. With the stroke and mental bruise of the two deaths and the burden and oppression of the entire business, aggravated by the complications incident to the war, Martin Manion may well have lost memory of the said transaction. And all of us are too familiar with incidents of revived memory to wonder at an occurrence of the kind. We think our learned brother below erred in rejecting the claim.

The opponent also asks that the executor be mulct in the statutory damages to which executors expose themselves by failure to deposit in bank all moneys coming into their hands for the successions they administer and to keep a bank book, C. C. 1150. The answer is that the succession had no funds, but on the contrary was debtor to Manion & Co., who furnished the money to pay its debts, until May, 1918, when a dividend was declared which covered the debt due Manion & Co., leaving a balance of only $193.35 payable to the succession; that this amount was not deposited in bank for the reason that the dividend had been declared merely in order that a drawing account might be created for the widow of Wm. J. Manion, and with the express understanding that the other shareholders should not withdraw any part of the dividend from the business, which just at that time, due to the largely increased price of 'all goods to be purchased, stood in sore need of all the funds it could get. Under those circumstances, the said balance of $193.35 cannot properly be said to have come into the hands of the executor. This opposition was rejected by the learned trial judge.

The judgment appealed from is set aside in so far as it sustained the opposition to the item “Due estate of William J. Manion, $5,000,” and condemns the succession to pay costs, and said opposition is now rejected; and the said judgment is otherwise affirmed. The costs of this appeal and of the said opposition to be paid by the opponent, John E. Manion.

MONROE, O. J., dissents.

On Rehearing.

O’NIELL, J.

On reconsideration of this case, we have concluded that the claim of $5,000 as a debt due to the succession of William J. Manion, deceased, should not be allowed. Our conclusion rests not upon a lack of worthiness of the testimony of the executor, but upon the incompetency of parol evidence in this case.

The document, purporting to bear the signature of the deceased, Martin Manion, on which the executor proposes to pay $5,000 to the succession of his deceased brother, William J. Manion, is in the following words and figures, viz.:

“5,000.00 of this amount is the property of William J. Manion, or its equivalent of 5,000.00 value as quoted or its worth in the open market of five shares Little Rock R. R.”

If the testimony of the executor should be eliminated, there is no evidence before us except the written instrument supposed to have been signed by the deceased. Though it be conceded that the signature is .genuine, the document alone does not prove an indebtedness of $5,000, or any indebtedness, for that matter; because there is nothing in the instrument to indicate whether.it is dollars or shares of stock, or what it is, of which 5,000, or its value or equivalent, “is the property of Wm. J. Manion.”

Act No. 207 of 1906, p. 861, declares:

“That from and after the promulgation of this act, parol evidence shall be incompetent to prove any debt or liability upon the part of a party deceased, except it consist of the testimony of at least one credible witness of good moral character besides the plaintiff; or except it be to corroborate a written acknowledgment or promise to pay signed by the debtor; or unless an action upon the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.”

In the case of Spillman v. Spillman, 147 La. 47, 84 South. 489, on rehearing, construing the statute of 1906, we held that, even though the action on the asserted indebtedness was brought within the delay of 12 months, parol evidence was incompetent to support the claim, unless such evidence consisted of the testimony of a credible witness of good moral character, besides the plaintiff, or was offered to corroborate a written acknowledgment or promise to pay signed by the deceased. On the same principle, we must hold that, if the claim has not been asserted, or the action brought, within the delay of 12 months, parol evidence is incompetent, even though it be the testimony of a credible witness of good moral character besides the plaintiff, or be offered to corroborate a written acknowledgment or promise to pay signed by the deceased.

The writer of this opinion concurred in the decree rendered in the case of' Spillman v. Spillman, but not in the opinion that the expression, in the Act 207 of 1906, “or unless an action upon the asserted indebtedness shall have been brought within a delay of twelve months,” must be read as if it were “and unless an action,” etc. An analysis of the language of the statute shows that the use of the word “or,” instead of “and,” was only a matter of style of expression. The word “or” is used because the expression is an affirmative, not a negative, expression. What the statute says is that parol evidence shall be excluded in either one or the other event; i. e., either if the parol evidence be not of one of the two classes mentioned, or if the action be not brought within the year. We are informed by the precise language of the title of the act that its object or purpose is “to limit the admissibility of parol evidence to prove any debt or liability of a party deceased.” We would absolutely prevent the accomplishment of that object or purpose, if we should construe the law as meaning that the admissibility and competency of parol evidence shall be “unlimited” to prove a debt or liability of a person deceased, provided “an action on the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.” Such a construction would actually facilitate the proving of a debt against a deceased person, by parol evidence. It would make parol evidence admissible and competent to prove a contractual obligation exceeding five hundred dollars, against a person deceased, although such evidence might not be competent to prove such an obligation against a living person; for article 2277 of the Civil Code declares that—

“Contracts or agreements above five hundred dollars in value, must be proved at least by one credible witness, and • other corroborating circumstances.”

Although the use of the word “and” instead of the word “or,” in the third proviso of the Act 207 of 1906, might have been more appropriate, we are sure of the meaning of the law; and we would not be justified in construing it so as to give it an effect contrary to that which the Legislature intended it to have.

Appellant pleads that the Act No. 207 of 1906, if construed to be a statute of limitation or prescription against the admissibility or competency of parol evidence, would be broader or more comprehensive in its text than in its title, and would therefore be violative of article 31 of the Constitution. But we do not find it so. The title of the act is “to limit the admissibility of parol evidence to prove any debt or liability of a party deceased.” One of the so-called limits put upon the admissibility or competency of parol evidence, in the text of the act, is that the action shall have been brought within a delay of 12 months after the death of the debt- or. Such a limitation is not contrary to or beyond the object expressed in the title of the statute.

In this ease, no action was brought on the asserted indebtedness within the year. Therefore parol evidence was incompetent, ,even though it was the testimony of a credible witness of good moral character, other than the plaintiff or claimant, and even though its purpose was to corroborate what purported to be a written acknowledgment signed by the deceased.

The judgment appealed from, rejecting the claim of the succession of William J. Manion, deceased, is affirmed, at appellant’s cost.

DAWKINS, J., concurs in the decree.

See dissenting opinion of PROVOSTY, J., 86 South. 669.  