
    Bry, Admr., et al. v. Miller et al.
    (Decided October 23, 1931.)
    
      Mr. J. J. McCall, for plaintiffs in error.
    
      Mr. William, B. Thom and Mr. C. 8. McDowell, for defendants in error.
   Lemert, J.

This is an error proceeding, coming into this court from the common pleas court of Stark county, Ohio. One Andrew PI. Miller died intestate on or about the 19th day of January, 1929, a resident of the city of Canton, Ohio, and on or about' the 28th day of January, 1929, Walter J. Bry, plaintiff in error, was appointed administrator of his estate. At the time of his death Miller was the owner of forty acres of land situate in Nimishillen township, Stark county, Ohio.

On or about the 15th day of November, 1928, said Andrew H. Miller executed and delivered to Mary H. Miller liis certain promissory note of that date, calling for $4,400, and to secure the same executed a mortgage on said farm. On or about the 28th day of November, 1928, he received from the Old Country the sum of $3,885.68, which he deposited in the American Exchange Bank of Canton, Ohio, and on the 10th day of December, 1928, he had a cashier’s check for this amount, $3,885.68, made out to himself, which was later indorsed by Mary H. Miller and deposited in the Dime Savings Bank of Canton, Ohio, which was the account of Mary H. Miller, which showed on said date a deposit of $3,800, and there was paid to her on that date by the bank the sum of $85.68 in cash.

Plaintiff, Walter J. Bry, as administrator, filed his petititon to sell real estate to pay debts, and made Mary H. Miller, the holder of said mortgage, a party defendant. Thereupon she filed an answer and cross-petition in said case, setting up said note and mortgage, claiming the full amount due thereon, stating in her answer and cross-petition that no payments or credits had been made on said note or mortgage, and for answer to the cross-petition the plaintiff filed a reply stating that on the 10th day of December, 1928, the decedent, Andrew IT. Miller, had turned over to the defendant, Mary H. Miller, the sum of $3,885.68, as payment on said mortgage, and issue was joined thereon. The defendant Mary H. Miller, so far as the pleadings show, denies that said $3,885.68 was paid upon the mortgage.

All parties in this lawsuit agree that the loan of $4,400 to Andrew H. Miller by Mary H. Miller, his daughter-in-law, as represented by the promissory note executed November 15, 1928, and secured by mortgage on real estate, was a bona fide one in all respects, and therefore should be paid. Plaintiff in error asserts that the payment of $3,800 in cash to Mary H. Miller by Andrew H. Miller on December 10,1928, at the Dime Savings Bank of Canton, Ohio, should be regarded as a payment on this mortgage loan, whereas the defendant in error Mary H. Miller insists that this money was not, in fact, to be applied on the mortgage loan, but was given to her to insure Andrew Miller’s care and keep during the remaining years of his life, so the sole and only question for determination in the court below was the issue as above set forth.

The original note of $4,400 is an exhibit in this case, and from an examination of it we find that it bears no indorsement whatsoever and no notations of payment.

We do not deem it necessary to quote the evidence, as contained in the record, at any great length. Suffice it to say that the record discloses that at various times and places the said Andrew H. Miller, to various friends and acquaintances, made statements to the effect that he intended to and had given the $3,800 to Mary H. Miller for past favors, and for his care and keep during the remainder of his life, so the question arises from these declarations made on various occasions, that he gave this money to his daughter-in-law, Mary H. Miller, not as a payment upon his mortgage loan, but for the purpose of assuring a home for himself. Were these statements against interest? If they were, they were therefore admissible in evidence.

We note that when Andrew H. Miller went to Europe in June, 1921, he, previous to going, put all his property in trust with his son Emil Miller, and directed him to divide the same among his children, each to receive $5,000. "When Emil Miller breached his trust with his father, his father returned to America, and in May, 1927, came to Canton and brought suit against the son for an accounting. The father recovered, among other things, a forty-acre tract of land in Nimishillen township, Stark county, Ohio, on which there was an outstanding mortgage held by Jacob S. Keim of Louisville, Ohio. The evidence shows that Mary H. Miller, his daughter-in-law, advanced in all $4,400 to enable Andrew H. Miller to take care of the Keim obligation. It further appears that Andrew Miller had certain moneys, amounting to approximately $3,800, on deposit in Europe, which moneys he later received in Canton through the American Exchange Bank, on or about December 10, 1928.

These financial matters were evidently a source of worry to Andrew Miller.. The worry incident to these matters made him talkative, and he spoke of his trouble to his friends rather frequently, and it is very evident that the old father, Andrew Miller, wanted to make certain that he would have a home in which to pass his last days in comfort.

This type of evidence is admissible under the rule permitting the introduction of admissions against interest. In Metzler’s Ohio Trial Evidence, Section 177, the following rule is laid down: “(a) The admissions of a party against his interest are admitted on the ground that the matter declared is probably true. The regard which men usually pay to their own interests is deemed a sufficient security that a party’s declarations were not made under any mistake of fact or without information, if he had the requisite means of knowledge.”

The evidence is quite clear and convincing that Andrew Miller gave the $3,800 to Mary H. Miller; to use the language of Andrew H. Miller, “for his care and keep for the balance of his life in her home.”

To combat this array of convincing testimony, the plaintiff in error in the court below sought to introduce the testimony of witnesses who, had they been permitted to testify, would have testified that Andrew H. Miller told them he had paid the money he received from Europe on the mortgage. This evidence the court refused to hear, on the ground that it was self-serving.

It is to be noted from tfie record that the testimony of the witnesses who said Andrew Miller had given the money to Mary Miller for his keep was in the form of rebuttal testimony. The testimony that was ruled out by the court below was what would be rightly termed surrebuttal testimony. For admission of such testimony'we understand the law to be that it must be confined to a denial of specific statements, and must not include statements and elements of a contrary nature, made at another time and place. While the evidence sought to be introduced by plaintiff in error might have been competent at another stage of the case, it was not competent as surrebuttal testimony.

We believe this principle of law is well laid down in Wrede v. Steinkamp, 2 O. D. (N. P.), 198, 1 N. P., 192, wherein it was held: “Where one party introduces in evidence a conversation had by him with the opposite party tending to prove an admission on the part of the latter, it is not competent for the latter to introduce a subsequent, independent conversation which he had with a third person, for the purpose of contradicting the testimony tending to prove such admission.”

To the same effect is Stark, Exr., v. Turner, 23 N. P. (N. S.), 313, where it was held: “Declarations made by a deceased donor of land are competent when offered by the donee in defense of his title, but contrary statements by the donor fall within the prohibition of self-serving declarations and are inadmissible in evidence. ’ ’

In the above-entitled case a similar judgment was entered in the Court of Appeals on the reasonings and authorities found in the opinion of the common pleas court. Courts outside of the state of Ohio generally follow the Ohio rule.

“But admissions cannot be rebutted or explained by other statements of the declarant made at another time, for such other statements are not admissible for that purpose, unless they form a part of the res gestae.” Volume 3, Jones on Evidence, 1980.

It has also been held that a party will not be permitted to neutralize or destroy the effect of an admission by evidence of counter-declarations at another time, which indeed would be permitting him to manufacture testimony for himself.

“Admissions and confessions are evidence against a party, but he cannot annul or explain them away by counter declarations.” Nutter v. O’Donnell, 6 Colo., 253.

Taking this record as a whole, we do not believe that Andrew'IT. Miller did an unnatural thing in giving the $3,800 to Mary H. Miller, who was his daughter-in-law, as the record shows that she had been kind and faithful to him, and by so doing he did not forget his own children, for long before his death he had given his son Joe a farm of eighty acres; and to Albert, his now deceased son, a filling station; and to his daughter in Europe various sums of money. The father had had a distressing experience with his son Emil, to whom he had given all his property in trust, with instructions to' sell it and divide the resulting money, $5,000, among all his children, only to find his son Emil betraying this trust. The father was eventually forced to go into court and compel Emil to make restitution.

■ Andrew Miller had a right to seek to protect himself in his last days, and to give his money to the only one in the family who seemed to care for him, in whose home he felt that he would be able to live until his death.

Perceiving no errors in the finding and judgment of the court below, it therefore follows that this case is hereby affirmed.

Judgment affirmed.

Sherick, P. J., and Montgomery, J., concur.  