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WYATT v. MOUNT AIRY CEMETERY (12/16/66)

decided: December 16, 1966.

WYATT
v.
MOUNT AIRY CEMETERY, APPELLANT



Appeal from judgment of County Court of Allegheny County, No. 9 of 1965, in case of Lois Jean Wyatt v. Mount Airy Cemetery.

COUNSEL

William J. Krzton, for appellant.

Clarence H. Clasper, with him Shoemaker, Eynon, Clasper, Rolston & Theophilus, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 209 Pa. Super. Page 251]

On September 17, 1917, appellant, Mt. Airy Cemetery, issued a certificate of indebtedness under seal in the amount of One Thousand dollars with interest thereon at four percent (4%) per annum to Walter O. Heck. A similar certificate was issued to J. Francis Heck on that same day.

The record reflects that at a later date, Ida Heck, wife of Walter O. Heck, received both of these bonds from her husband, either as donee or legatee.*fn1 Appellee,

[ 209 Pa. Super. Page 252]

Lois Jean Wyatt, daughter of Ida Heck, became a holder of these bonds as legatee under her mother's will in 1963.

On January 5, 1965, appellee brought this action in assumpsit to recover the face amount of the two bonds ($2000) with interest which she alleged was unpaid from the date of issue to December 1, 1941. This case was tried without a jury before Judge Walker on April 1, 1965, and judgment in the sum of $3416.00 was entered for appellee. This is an appeal from that judgment.

Appellant first contends that the evidence produced by appellee failed to overcome the presumption of payment of interest after twenty years.

At trial, appellee claimed that no interest had been paid on the bonds for the period from September 1, 1917 to December 1, 1941, and, that she, as present owner, was entitled to that interest. Appellant argued, however, that more than twenty years had elapsed since December 1, 1941, when even the last interest payment would have been due, and, consequently, appellee's claim was barred by the presumption of payment after twenty years.

This evidentiary rule was set out most recently in Rosenbaum v. Newhoff, 396 Pa. 500, 502-3, 152 A.2d 763 (1959), in which the Supreme Court of Pennsylvania stated: "After the lapse of twenty years, all debts . . . not within the orbit of the Statute of Limitations are presumed to have been paid. . . . Until the passage of twenty years it is the burden of the debtor to prove payment; after the passage of twenty years, it is the burden of the creditor to establish nonpayment and for the satisfaction of such burden the evidence must be clear and convincing and must consist of proof other than the specialty itself."

The Supreme Court further explained in Snyder Estate, 368 Pa. 393, 396-97, ...


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