COM. TRUST CO. OF PBG. v. HUGO, 328 Pa. 116 (1937)

194 A. 904

Commonwealth Trust Company of Pittsburgh, Appellant, v. Hugo.

Supreme Court of Pennsylvania.October 1, 1937.
November 12, 1937.

Evidence — Burden of proof — Action for value of property belonging to decedent’s estate — Self-serving declarations — Books of decedent.

1. In an action of assumpsit to recover the value of property alleged to have belonged to a decedent’s estate, the burden of proof is on the representative of the estate to show by a preponderance of evidence that the property belonged to the decedent, and had been placed in the hands of the defendant who had a duty to account. [117-18]

2. In such action, entries in books kept by the decedent are not admissible to establish that the property in question was received by the defendant for a particular purpose and then converted to defendant’s own use; such evidence is properly excluded on the ground that the books constitute self-serving declarations. [117]

Evidence — Cross-examination of adverse party.

3. One who calls an adverse party to testify as if under cross-examination is bound by that testimony in so far as it is not contradicted. [118]

Argued October 1, 1937.

Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

Appeal, No. 162, March T., 1937, from judgment of C. P. Allegheny Co., April T., 1936, No. 1914, in case of Commonwealth Trust Company of Pittsburgh, ancillary

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administrator of Estate of Rufus P. Wright, deceased, v. Laura M. Hugo. Judgment affirmed.

Assumpsit. Before SMITH, J.

The opinion of the Supreme Court states the facts.

Compulsory nonsuit entered. Motion to take it off refused. Plaintiff appealed.

Errors assigned, among others, were various rulings on evidence.

E. H. Wicks, for appellant.

Norman R. Schade, with him George D. Wick, of Campbell, Wick, Houck Thomas, for appellee.

OPINION BY MR. JUSTICE LINN, November 12, 1937:

This appeal is from the refusal to take off a compulsory nonsuit. The action is brought by the ancillary administrator of Rufus P. Wright to recover the amount received by defendant for three bonds which the plaintiff alleged belonged to decedent. The defendant is the decedent’s daughter. Plaintiff contended that defendant received the bonds from her father for a particular purpose and then converted them to her own use. Her defense was that the bonds were a gift to her. At the trial plaintiff called for cross-examination. She testified that the bonds were given to her by her father and that thereafter she dealt with them as her own.

Plaintiff offered in evidence a memorandum book kept by the father and found among his papers after his death. This book contained a written statement, which, standing by itself, would support the inference that a gift had not been made to the defendant but that she held the bonds as her father’s agent or bailee. It was excluded on the ground that it was a self-serving declaration not admissible for the purpose offered; the appellant, in support of its contention that the book was

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wrongly excluded, cites cases in which a decedent’s books were admitted for the purpose of showing the testator made advancements to his children. Those cases do not aid the plaintiff in suit for breach of contract: see Laning’s Estate, 241 Pa. 98, 88 A. 289. Defendant’s testimony that the bonds were given to her was therefore not contradicted and plaintiff was bound by it: Dunmore v. Padden, 262 Pa. 436, 105 A. 559 Evans v. Penn Mutual Life Ins. Co., 322 Pa. 547, 186 A. 133. As the case was presented, the burden of proof was on plaintiff (Weaver v. Welsh, 325 Pa. 571, 191 A. 3) and was not met.

Judgment affirmed.