Appeal, No. 35, March T., 1964, from decree of Orphans' Court of Allegheny County, No. 5426 of 1961, in re estate of Sol Weizenbaum, deceased. Decree affirmed.
Theodore M. Tracy, with him Stokes, Lurie & Tracy, for appellant.
Abraham Pervin, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Nathan Holstein held two judgment notes signed by Sol Weizenbaum, in the amounts respectively, of $185 and $500, dated December 2, 1936 and November 5, 1936, which he placed on record on February 1, 1937 and March 6, 1937. When Weizenbaum died on December 11, 1961, Holstein presented his claims on the notes and judgments to the decedent's widow, executrix of her husband's estate. To overcome the presumption of payment, Holstein showed he had filed the notes of record in 1937, that he had presented his claim in the involuntary bankruptcy proceedings filed against Weizenbaum in 1937 and that his claim was allowed in full, permitting him to participate in the bankrupt's assets to the extent of $54.49, that Weizenbaum was never discharged from his debts or as a bankrupt, that in 1937 he attempted execution against the household goods of a Ralph J. Friedberg, co-maker of the $185 note, Friedberg having disappeared in 1937 and that on January 6, 1942, Holstein issued out of the Court of Common Pleas of Allegheny County a writ of scire facias to revive the $185 judgment.
All this Holstein contends shows he made attempts in good faith, during the 20-year period, to enforce and collect the judgments by legal process and that, therefore, the presumption of payment after the lapse of 20 years did not arise. However, the only substantive action
taken within that 20 year period was the issuance of the writ of scire facias on the $185 judgment above, and this occurred 19 years and 11 months prior to Weizenbaum's death. This could lead to the inference that the larger judgment must have been paid.
Holstein seeks to explain away his long inactivity in the matter by arguing that up to December 31, 1958, the debtor possessed no assets, and that he (Holstein) did not know what assets he might have acquired after that date. He submits in support of his position the case of Grenet's Estate, 332 Pa. 111, to the effect that the burden of overcoming the presumption of payment "... may be met by direct testimony as to nonpayment, or by proof of circumstances tending to negative the likelihood of the claim having been satisfied and explaining the delay of the creditor in attempting to enforce it - for example, ... that the debtor's financial condition was such as would have prevented his paying the debt, that the bond, note or other instrument upon which the claim rested remained at all times in the creditor's possession."
But the claimant ignores the Court's declaration, immediately following the above quotation, namely: "These and similar circumstances, while not, singly or collectively, conclusive, are admissible in evidence for the purpose of rebutting the presumption of payment."
The evidence produced by claimant, before the Orphans' Court of Allegheny County, while legally admissible, was held insufficient under the attendant circumstances to overcome the presumption of payment. Although Holstein relied on the debtor's insolvent status as excusing him from further attempts to obtain payment, it was disclosed through cross-examination of Mrs. Weizenbaum, that Weizenbaum had been employed regularly from 1937 until his death ...