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ENGEMANN v. COLONIAL TRUST COMPANY (05/24/54)

May 24, 1954

ENGEMANN
v.
COLONIAL TRUST COMPANY, APPELLANT



Appeal, No. 75, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, April T., 1951, No. 1067, in case of Sue Engemann and Alexandra Pattillo, Exrx., Estate of Rena Stanton, deceased, v. Colonial Trust Company, Exr., Estate of John J. Sweeney, deceased. Judgment reversed. Bill in equity to quiet title to real estate. Before ANDERSON, J., specially presiding, and a jury. Plaintiff's motion for directed verdict granted and judgment entered thereon. Defendant appealed.

COUNSEL

Robert L. Woshner, for appellant.

Hubert I. Teitelbaum, with him Edward H. Schoyer, Goldstock; Schwartz, Teitelbaum & Schwartz and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Bell

[ 378 Pa. Page 94]

OPINION BY MR. JUSTICE BELL

Alexandra Pattillo, Executrix of the Estate of Rena M. Stanton, and Sue Engemann, her devisee, brought an action in 1951 against the executor of John J. Sweeney, deceased, to quiet title and to decree a certain mortgage made by Rena M. Stanton to John J. Sweeney, secured upon premises 339 Atwood Street, Pittsburgh, be cancelled and marked satisfied and discharged. The mortgage was in the principal amount of $6,000., it was dated October 24, 1912; it was payable at the expiration of three years; and it was duly recorded.

Rena M. Stanton died December 26, 1950; John J. Sweeney died testate July 27, 1948.

Plaintiffs contended that the mortgage had been paid and rested their case on the presumption of payment which arises after the lapse of twenty years.

Defendant, in order to refute the presumption of payment, offered in evidence (1) the will of John J. Sweeney and (2) the original bond and mortgage of Rena M. Stanton which was in the possession of Sweeney at the time of his death, and (3) statements pertaining to and checks of Sweeney showing payment of real estate and school taxes on the mortgaged property over a period of years, and (4) checks of and payments made by Sweeney of insurance premiums on personal property of Rena M. Stanton in her Atwood Street home over a period of years. All of these offers of proof were rejected by the lower Court.

Mr. Sweeney's will contained the following provision: "I give, devise and bequeath of Rena M. Stanton the sum of Six Hundred ($600.00) Dollars annual income from bonds and mortgages to be paid to her in convenient installments during her natural life. I also direct that the mortgage of Six Thousand ($6,000.00) Dollars which I hold against the property of Rena M.

[ 378 Pa. Page 95]

Stanton, 339 Atwood Street, Pittsburgh, Pa., be not foreclosed, nor shall any interest thereon be collected for and during the term of her natural life." The will was rejected because it was self-serving and was considered inadmissible under the Act of May 23, 1887, P.L. 158, ยง 5(e), 28 PS 322. The other exhibits were rejected because they were considered irrelevant.

Defendant also offered to prove by J. Howard Devlin, Esquire, Sweeney's attorney-in-fact, (a) that Sweeney made a statement to Devlin relative to the mortgage on the Atwood Street property, within two years prior to his death, and (b) that Devlin had a conversation with Rena M. Stanton in the summer of 1948 with reference to the mortgage. Objections to these offers were sustained by the Court, the first because it was self-serving (and obviously hearsay), and the second ...


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