
    In the Matter of the Claim of Malvina Wiltsie, v. The Estate of James Wiltsie, deceased.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    
      1. Claim against estate op deceased person—Presumption op payment. »
    The claimant was the wife of the deceased and claimed that her husband’s estate was indebted to her for certain money which she had allowed her husband to invest for her on bond and mortgage. It appeared that these mortgages had been satisfied by satisfaction pieces executed by the claimant. Held, that the executing of the satisfaction pieces of these mortgages raised the presumption that she had received the money thereon.
    2. Same—Sufficiency of evidence to overcome presumption and sustain CLAIM.
    To overcome this presumption it was proved that the payments were made to the husband. And one of the executors of testator testified that he had conversations with deceased at different times about the mortgages, and that deceased said to him that he thought the best way would be for him to handle the money for his wife; that he would make over to her mortgages when she wanted it done, that he said he and his wife had talked the matter over and that it was satisfactory to her to have this done; he said it would make no difference in whose name the mortgage was taken, that he would pay her when she demanded, that he would account to her for the principal and interest, and what he could make over and above he should have; that two or three years ago he had another conversation with him at a time when witness was sick. The witness stated to him that he had better have another executor appointed as he might not recover, and wanted matters made right as to what he owed his wife; that deceased then said he would wait and see the result, and if witness recovered he understood the case and there would be no difficulty but that his wife would get what was her due, but if the witness did not recover he would arrange it in some shape so that she would get her pay; that deceased’s principal business for many years had been the loaning of money, the buying of notes and mortgages and getting a bonus thereon. Held, that the evidence was sufficient to overcome the presumption, that there was sufficient to sustain the finding that the estate of deceased was indebted to the claimant for the amount claimed.
    3. Same—Evidence—Competency undbb Code Crv. Pbo., § 829.
    The executor was not interested in the claim, and his testimony was not incompetent within the provisions of section 829, Code of Civil Procedure.
    Appeal from a decree of the surrogate’s court of Cattaraugus county, auditing and allowing a claim.
    
      Corbin & Yates, for app’lt, Frank Rumsey, for resp’t.
    
      
       Affirming 12 N. Y. State Rep., 144.
    
   Haight, J.

Malvina Wiltsie, the claimant, was the wife of James Wiltsie. She was the owner of a farm in Cattaraugus county, which she sold to one Leonard Sprague the 1st day of April, 1868, for the sum of #4,400. One thousand dollars of the purchase-price was paid to her husband, James Wiltsie, at the time of the delivery of the deed, and was by him loaned to one Nathan A. Die on the fourth day of April thereafter; and Die executed and delivered to him a mortgage upon real estate to secure the repayment of such sum. The balance of the purchase-price, $3,400, was secured to the claimant by a mortgage upon the farm so sold by her to Sprague. Payments were made upon this mortgage from time to time of principal and interest, to her husband, James Wiltsie. Subsequently the farm was divided by Sprague and sold to other persons, and three other mortgages were executed and delivered to her, amounting in the aggregate to the balance unpaid upon the Sprague mortgage, which was by her satisfied ana discharged of record. Payments were also made from time to time upon these other mortgages, of interest and principal, to her husband, and when the mortgages were paid in full she executed satisfaction thereof. After the death of James Wiltsie she presents the claim in controversy against his estate, which has been audited and allowed by the decree appealed from.

Inasmuch as no question is made in reference to the credits allowed by the surrogate, there is only one question which we consider it necessary to discuss upon this appeal. Upon the hearing before the surrogate, Erastus Willard, one of the executors, was sworn as a witness in behalf of the claimant, and testified to conversations that he had had with the deceased in his life-time. Willard was not interested in the claim and his testimony was not incompetent within the provision of section 829 of the Code of Civil Procedure. The surrogate, in his findings, charges the deceased with the $1,000, part of the purchase-price paid to him in cash and by him loaned to Nathan A. Die, with the interest thereon to the date of the decree. He also charges him with the payments of principal and interest made from time to time upon the mortgages, with interest from the time that such payments were made to him.

It is contended on the part of the appellant that the fact that the claimant subsequently executed satisfaction of each of these mortgages, raised a presumption that she had received the money thereon, and that her claim ought not to have been allowed against the estate of the deceased.

It is undoubtedly true that the executing of the satisfaction of these mortgages raised such a presumption, and the question is whether the evidence establishes facts which overcome it. The fact that the payments were made to the husband was established from his own receipts and endorsements upon the mortgages and the testimony of the mortgagors who made the payments. Willard, in his testimony, states that he had conversation with Wiltsie at different times about the Sprague mortgage, and that Wiltsie said to him that he thought the best way would be for him to handle the money for his wife; that he would make over to her mortgages when she wanted it done; that he said he and his wife had talked the matter over, and that it was satisfactory to her to have this done; he said it made no difference in whose name the' mortgage was taken; that he would pay her when she demanded; that he would account to her for the principal and interest, and what he could make over and above he should have; that two or three years ago he had another conversation with him at a time when witness was sick. The witness stated to him that he had better have another executor appointed as he might not recover, and wanted matters made right as to what he owed his wife; that Wiltsie then said he would wait and see the result, and if witness recovered he understood the case, and there would be no difficulty, but that his wife would get what was her due; but if the witness did not recover he would arrange it in some shape so that she would get her pay. That Mr. Wiltsie’s principal business for many years had been the loaning of money, the buying of notes and mortgages and getting a bonus thereon.

This evidence tends to indicate that there was an arrangement between the claimant and her husband by which he was permitted to handle her money and invest it on bis own account, he to account to her for the principal and interest. The fact that he received the money is undisputed, and no evidence is submitted showing other payments to her by him than those disclosed in the findings of the surrogate. We are of the opinion that the evidence is sufficient to sustain the finding. There does not appear to be any error in the mode in which the interest was computed; and we see no reason why the decree of the surrogate should not be affirmed, with costs of this appeal payable out of the estate.

Bradley and Dwight, JJ., concur.  