Seighman v. Marshall

Bartol, J., delivered (he opinion of this court. The appellant brought this suit to recover a debt due to him from (he appellee’s intestate, upon a written contract; the appellee (who was defendant below) pleaded that his intestate, Jacob S. Marshall, in his lifetime, did agree as alleged in the declaration, and that the plaintiff is entitled to his action (hereon; “but that the deceased was, in his lifetime, largely indebted to sundry persons, in amounts greatly exceeding the assets of the estate of said deceased, which have come to the hands of the defendant, and that said assets are wholly insufficient to pay the said plaintiff’s claim, regard being had to the debts still due and owing by the said Jacob S. Marshall, deceased.” The plaintiff replied, “that the said Jacob S. Marshall, deceased, was not, in his lifetime, largely indebted to sundry persons, in amounts greatly exceeding the assets of the estate of thevdeceased, which have come, and ought to have come, to the hands of the said defendant, as administrator; and the said plaintiff says that (he said assets are sufficient to pay the claim of the said plaintiff, regard being had to the legal and proper debts still due and owing by the said Jacob S. Marshall, deceased.” The defendant joined issue on this replication. In (he course of the trial nine bills of exception were taken by the plaintiff. In passing our judgment, upon the several questions presented by (his appeal,it will not be necessary to recapitulate the facts and circumstances developed in the course of the trial.

The points ruled by the circuit court are so fully and clearly stated by the' counsel in their printed briefs, and the cause has been argued and the authorities cited with so much ability and care, that we are enabled to dispose of the questions involved with great; brevity. First Exception.- — Under the pleadings, the onus of proof of assets was on the plaintiff; we cannot, distinguish this from-the case where pleue administravit or no assets is pleaded; in such case the rule is well established, that, the burden of proof is on the plaintiff to show assets in the hands of the-defendant. ⁵⁶⁹ Seco7id Exception. — We concur with the circuit court in the propriety of excluding (he evidence offered. The subscription list and good will of a printing office are not assets, under our Act of Assembly; they are of inappreciable value, and of too uncertain and contingent a nature to be the subject of appra:sement and estimation. Third Exception. — Nothing is better settled in our State than that the accounts of an executor or administrator, passed in the orphans court, are prima facie evidence in all suits touching matters contained in them.

In this case we think the evidence was properly allowed to go to the jury, with the qualifications stated by the circuit court. The objections urged by the appellant were proper grounds to be addressed to the jury in estimating the weight of the evidence, but did not justify its rejection. The accounts being merely prima facie evidence, it was competent for the appellant, to surcharge and falsify whatever may be erroneous in them, and to ask the instruction of the court to the jury in relation thereto. The single question before us, upon the third exception, is the admissibility in evidence of the accounts and proceedings of the orphans court; we are not, therefore, called upon to express any opinion upon the items of the account, or the manner in which it is stated, no point upon them having been made below.

Fourth Exception, — By the Act of 1854, ch. 86, it is made the duty of the register of wills to record all claims against a testator or intestate as they are regularly passed by the orphans court. The object of the registry is, no doubt, to give notice to the administrator and others interested, of the existence and amount of the claims preferred; it does not conclusively establish them against parties contesting them; but, the registry made under the Act, is an official record, which was admissible under the pleadings as prima facie evidence, tó show the amount of debts; leaving to the plaintiff the right to offer evidence to prove their invalidity. This is a new point in practice, and, we think, was correctly ruled by the circuit court. ⁵⁷⁰ The fifth and sixth exceptions raise the question of the admissibility in evidence of two bills of sale, one from the plaintiff and J. D. Brumbaugh to John Boyd, dated the 18th day of April 1856, conveying to Boyd, for the consideration of $400, one-third of the printing establishment, with the