Smyser v. Smyser

3 Watts & Serg. 437

Opinion

Per Curiam.

facie annual payments to the widow of an intestate, charged on his land as an equivalent for her dower at the common law, bear interest from the day they are due. But in this instance, there may perhaps be enough in the relation of the parties to convince a jury that the money was left in the defendant’s hands on deposit, because not immediately needed. In the case of a stranger no such presumption would arise; but between a parent and child, it might in some cases be implied. In any case, however, it must depend on particular circumstances. For instance, wherever it would not be unjust to her other children to leave the money in the hands of her son, it might be supposed that she had let him have the use of it as a gratuity; and on the other hand, the supposition might be rebutted by a variety of other considerations. It is a presumption purely of fact, however, which can be drawn on either side only by a jury, according to the strength of the circumstances; and as it is not a legal inference from the facts found, we are compelled to remit the cause for another trial.

Judgment reversed, and venire facias de novo awarded.