Miller's Estate

Philadelphia County Orphans' Court

Miller's Estate

9 Pa. D. & C. 670, 1927 Pa. Dist. & Cnty. Dec. LEXIS 127

CourtPennsylvania Orphans' Court, Philadelphia County

DecidedOctober 27, 1927

DocketNo. 148

StatusPublished

This text of 9 Pa. D. & C. 670 (Miller's Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller's Estate, 9 Pa. D. & C. 670, 1927 Pa. Dist. & Cnty. Dec. LEXIS 127 (Pa. Super. Ct. 1927).

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Opinion

Lamorelle, P. J.,

The claims are barred by the statute of itation unless it be affirmatively shown by competent testimony that there 3 such acknowledgment of liability as would toll the statute.

These are the questions raised by the exceptions. There was but one wit-ss called — husband of one of the claimants. It is contended that, as he was e agent of his wife, he is a competent witness.

His agency, however, is dependent on his own testimony, uncorroborated, ich testimony is not sufficient to prove agency: See Stewart v. Climax Co., 0 Pa. 611; Lawall v. Groman, 180 Pa. 532; Flannery v. Insurance Co., 175 a. 387; Whiting v. Lake, 91 Pa. 349. An acknowledgment by a creditor to 11 the statute must be to the debtor or to his duly accredited agent: See aglee’s Estate, 4 Dist. R. 122; Bahny v. Levy, 236 Pa. 348; in the instant se there is no such evidence.

[674]*674Even if there was, so far as the claim of Mrs. Ross is concerned, her husband is incompetent to testify. There is but one case which upholds such view, Levan v. Bickel, 5 Pa. C. C. Reps. 610; it is not in accord with all other authorities. In Howell’s Estate, 12 Dist. R. 193, Judge Penrose says: “The only evidence in support of the claim which has been allowed is the testimony of the wife of the claimant; and as his incomptency as a witness, under the common law, on the ground of interest, has not been removed by any statute, as against the estate of a deceased debtor, the incompetency of his wife necessarily follows. This, as the authorities show, is partly on the ground oi public policy and partly because of the identity of interest of husband anc wife, and is not affected by the fact that the wife’s information was obtained before her marriage: See Greenleaf on Evidence, § 336, &c.; Bitner v. Boone 128 Pa. 567.” See, also, Maguire’s Estate, 22 Dist. R. 539. Agency, ever if proved, does not sever the marital relation.

As to the other claim, that of Miss Hallowell, even were we to admit the existence of agency, the acknowledgment by the debtor was not such as the law recognizes as reviving the right to sue on the original agreement or oi the new promise — for there was no unqualified promise to pay anything simply an expression of regret.

It would be unnecessary to add anything to what has been said by th< Auditing Judge if we did not feel that the argument of the exceptants i such that it merits consideration, and having given it this consideration, wi see no reason for elaboration as to the findings of fact and the applicatioi of law as set forth at some length in the adjudication.

All' exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.

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Lamorelle, P. J.,

The claims are barred by the statute of itation unless it be affirmatively shown by competent testimony that there 3 such acknowledgment of liability as would toll the statute.

These are the questions raised by the exceptions. There was but one wit-ss called — husband of one of the claimants. It is contended that, as he was e agent of his wife, he is a competent witness.

His agency, however, is dependent on his own testimony, uncorroborated, ich testimony is not sufficient to prove agency: See Stewart v. Climax Co., 0 Pa. 611; Lawall v. Groman, 180 Pa. 532; Flannery v. Insurance Co., 175 a. 387; Whiting v. Lake, 91 Pa. 349. An acknowledgment by a creditor to 11 the statute must be to the debtor or to his duly accredited agent: See aglee’s Estate, 4 Dist. R. 122; Bahny v. Levy, 236 Pa. 348; in the instant se there is no such evidence.

[674]*674Even if there was, so far as the claim of Mrs. Ross is concerned, her husband is incompetent to testify. There is but one case which upholds such view, Levan v. Bickel, 5 Pa. C. C. Reps. 610; it is not in accord with all other authorities. In Howell’s Estate, 12 Dist. R. 193, Judge Penrose says: “The only evidence in support of the claim which has been allowed is the testimony of the wife of the claimant; and as his incomptency as a witness, under the common law, on the ground of interest, has not been removed by any statute, as against the estate of a deceased debtor, the incompetency of his wife necessarily follows. This, as the authorities show, is partly on the ground oi public policy and partly because of the identity of interest of husband anc wife, and is not affected by the fact that the wife’s information was obtained before her marriage: See Greenleaf on Evidence, § 336, &c.; Bitner v. Boone 128 Pa. 567.” See, also, Maguire’s Estate, 22 Dist. R. 539. Agency, ever if proved, does not sever the marital relation.

As to the other claim, that of Miss Hallowell, even were we to admit the existence of agency, the acknowledgment by the debtor was not such as the law recognizes as reviving the right to sue on the original agreement or oi the new promise — for there was no unqualified promise to pay anything simply an expression of regret.

It would be unnecessary to add anything to what has been said by th< Auditing Judge if we did not feel that the argument of the exceptants i such that it merits consideration, and having given it this consideration, wi see no reason for elaboration as to the findings of fact and the applicatioi of law as set forth at some length in the adjudication.

All' exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.

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9 Pa. D. & C. 670, 1927 Pa. Dist. & Cnty. Dec. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millers-estate-paorphctphilad-1927.

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