Briggs's Appeal

While the general rule undoubtedly is that the presumption of payment of a claim founded on a decree would not arise until twenty years have elapsed, it is well settled that a shorter period than that, aided by circumstances which contribute to strengthen such presumption, may furnish sufficient grounds for inferring the fact of payment.

Appeal from the Orphans’ Court of Luzerne county: Of July Term 1879, No. 89. Appeal of George W. Briggs from the decree of the court sustaining the exception to the allowance by the auditor of th-o claim of the appellant as the assignee of Peter Cool, Jr., in the distribution of the fund arising from the partition and sale of the real estate of John M. Briggs, deceased. John Briggs, father of John M. Briggs, died on the 3d of January 1852, intestate, and his real estate was partitioned in the Orphans’ Court of Luzerne county. The purparts not elected by the heirs were sold in the year 1855. John M. Briggs elected one and purchased one other, purpart. L. D. Shoemaker, Esq., was appointed an auditor to apportion and make distribution among the heirs of John Briggs, deceased, and he charged John M. Briggs, in his report, inter alia, for the purpart elected and the purpart purchased, with the payment to Peter Cool, Jr., son of a deceased daughter of the said John Briggs, deceased, of the sum of $153.58, with interest thereon from the 16th April 1856. Mr. Shoemaker’s report was excepted to, referred back, and was finally, as to the share of Peter Cool, Jr., confirmed absolutely as originally reported, on the 13th June 1860. Peter Cool, Jrv subsequently assigned his share to George W. Briggs, to whom John M. Briggs, on the 6th February 1863, paid on account of the interest and principal of said share (the interest at the time of payment amounted to the sum of $62.74) the sum of ninety dollars. The attorney to whom the payment was made was also attorney for Thomas Y. Briggs. A copy of the receipt for the payment mentioned is in the words and figures following, viz.: “Received, February 6th 1863, of John M. Briggs, forty-nine 81-100 dollars for principal and interest of Thomas Y. Briggs’s share in the estate of John Briggs, deceased, and also ninety dollars on interest and balance on principal of Peter Cool’s share as heir in said estate of John Briggs, deceased, making in all one hundred thirty-nine dollars and eighty-one cents. G. B. Nicholson, per John Richards.” John M. Briggs died on the 25th November 1875. Partition of his real estate was awarded 22d September 1877, by the Orphans Court of Luzerne county. An auditor, George K. Powell, Esq., was appointed to distribute the fund raised by the sale of the real estate. In February 1879, the auditor made his report, inter alia, allowing the claim of Peter Cool, Jr., assigned to George W. Briggs, and appropriating thereto the sum of $245.69. The heirs of John M. Briggs, deceased, excepted to the allowance of said claim, alleging that the receipt of Mr. Nicholson for ninety dollars covered the whole principal and interest. The court sustained the exceptions,, and in an opinion said: “ The only exception now before the court is the one alleging error in allowing the claim of George W. Briggs. The exception alleges, first, presumption of payment from lapse of time, and second, actual payment as appears from a receipt dated February 6th 1873, attached to the report of the auditor. We sustain the exception on the ground of actual payment of the claim in question, which makes it unnecessary to discuss the other view of the case. Aside from the receipt there is nothing on the subject worthy of the name of proof either of payment or non-payment, so the case resolves itself into a construction of the receipt which the court may do notwithstanding the finding of the auditor : Hindman’s Appeal, 4 Norris 467, and cases there cited. The receipt reads: ‘ Received, February 6th 1863, of John M. Briggs, ninety dollars on interest and balance on principal of Peter Cool’s share as heir,’ &c. We cannot possibly read this sentence so as to make the word ‘ balance ’ relate to anything but the words interest and principal. The writing does not divide the sum of ninety dollars in any way by which we may apply a definite sum to the payment of interest and the balance on the principal. It is clearly meant that the ninety dollars is balance of interest and principal. We are not informed of the amount of interest then due, nor was such information necessary, as the whole debt and interest were cancelled, hut if there had still remained a principal, then the amount of interest or date to which it was calculated would have been necessary and undoubtedly would have been stated. The construction which we have put upon this paper is consistent with the conduct of the parties for sixteen years, and in equity we are bound to take this into consideration: Hughes v. Hughes, 4 P. F. Smith 240. We therefore sustain the exception and disallow the claim of George W. Briggs, amounting to $245.69, which the clerk is directed to distribute to the heirs of the deceased.” From this decree this appeal was taken.