Spillman v. Spillman

84 So. 489, 147 La. 47, 1920 La. LEXIS 1823

• Court: Supreme Court of Louisiana
• Decided: January 7, 1920
• Docket: No. 22433
• Status: Published

Opinions

PROVOSTY, J.

Plaintiff sues the succession of her deceased husband for $5,837.42, which she claims she lent him in divers sums at different' times. While the suit is nominally against the succession as represented by the testamentary executrix, sister óf the decedent, it is in reality against this sister of the decedent, who is his universal legatee.

The plaintiff and the decedent were paramours for several years before their marriage, which took place about a year after the decedent had had a second stroke of apoplexy, from which he never recovered. He died in 1915, about three years after the marriage. Plaintiff was keeper of a’ bagnio. The decedent made money in divers ways, among others, by running slot machines and leasing pianos. About a year before his death plaintiff brought suit for his interdiction. His love for her had changed to hate, and he had left her, and was living under the care of his sister. Such a change of feeling towards the person most loved is, it seems, a not uncommon concomitant of the malady from which he suffered.

[1] Plaintiff testifies to the loans having been made; and seeks to- corroborate her testimony by producing 21 checks drawn by her and which were duly cashed. Nineteen of them are to the order of the decedent. One of these, for $30, was given in 1908. Two, for $47 and $100, were given in 1909. Two in 1910 for $100 and $44. One for $182 in 1913. The others were given in 1912. The evidence shows that considerable sums of money passed frequently between the parties, and that at one time plaintiff was indebted to the decedent in more than $6,000 for real estate bought from him, so that these checks, as likely as not, were given by way of payments instead of by way of loans, and hence do not afford sufficient corroboration in a suit against a dead man.

One of the 21 checks, however, of $500, was given to the physician who attended the üecedent in payment of his fee, and another, for $335, was given to an auctioneer, from whom the decedent had bought a piece of real estate, to cover the cash deposit. These were given in 1912. They unquestionably represent money of plaintiff paid to a third person for account of the decedent; and nothing shows that they were not given by way of a loan, as testified to by plaintiff. For these two amounts, plaintiff is entitled to judgment.

Act 207, p. 361, of 1906, provides, as follows:

“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 debt- or; or unless an action upon the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.”

This act does not apply to this case for two reasons: One, that, apparently, it does not have application to the testimony Of a plaintiff, but only to witnesses other than plaintiff; and, second,- that this suit was filed “within a delay of twelve months after the decease of the debtor.”

The suit was rejected below in toto. For the purpose of recasting, the judgment is set aside entirely.

It is ordered, adjudged, and decreed that the judgment appealed from be. set aside, and that the plaintiff, Mrs. Jessie Spillman, have judgment against the Succession of Henry Spillman in the sum of $$35, with 5 per cent, per annum interest thereon from judicial demand, June 2, 1915, and the costs of both courts, and that in all other respects the present demand of the said plaintiff be rejected.