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OSBORNE ESTATE. (06/27/55)

THE SUPREME COURT OF PENNSYLVANIA


June 27, 1955

OSBORNE ESTATE.

Appeal, No. 159, Jan. T., 1955, from decree of Orphans' Courts of Philadelphia County, 1954, No. 1202, in re Estate of Ida U. Osborne, Deceased. Decree affirmed.

COUNSEL

Stanley Jakubowski, for appellant.

Robert J. Lindsay, Jr., for appellee.

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

Author: Stearne

[ 382 Pa. Page 306]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The question involved is whether after twenty years in the absence of affirmative evidence of payment or acknowledgment of indebtedness, does proof that the books and records of a building and loan association mortgagee disclose no evidence f payment mortgagee disclose no evidence of payment

[ 382 Pa. Page 307]

Court ruled such evidence insufficient. This appeal followed.

The White Eagle Building and Loan Association, claimant, granted a mortgage loan to decedent, Ida U. Osborne, and her husband John L. Osborne (who predeceased her) on premises 4048 and 4052 Powelton Avenue. The loan became in default in 1932. A former secretary of claimant testified that the books of the association revealed no payment since March, 1932. The learned auditing Judge found as a fact that "... claimant has failed to show a demand upon the decedent within twenty years. ..." He also found that during this period there was no effort made to enforce collection and no reason was given which explains the failure of claimant to do so.

This Court, in closely similar factual situations, has repeatedly decided that such evidence is insufficient to overcome the presumption of payment: Grenet's Estate, 332 Pa. 111, 2 A.2d 707; Corn v. Wilson, 365 Pa. 355, 75 A.2d 530; Engemann v. Colonial Trust Company, 378 Pa. 92, 105 A.2d 347; Haughey v. Dillon, 379 Pa. 1, 108 A.2d 69. See also Hennessy Estate, 82 D. & C. 38.

Disposition

Decree affirmed at cost of appellant.

19550627

© 1998 VersusLaw Inc.



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