Page:The Green Bag (1889–1914), Volume 25.pdf/534

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The Rules of the Game what he thought the appellate auto crats would do to him if he did not. He agreed perfectly with the judge of the Orphans' Court "as to the natural and inherent justice of the case." But he evidently concluded that this was a case in which the appellate autocrats would rap him over the knuckles, if he did not follow the strict technical rules of law. So he decided against the claimantexecutor, and then, apparently again following appellate court precedent, undertook to substantiate his decision. It cannot be said that he was altogether happy in this feat. In his memoran dum of decision, the judge of the Supe rior Court says: — "All the payments for the support of the deceased were made prior to the date that the executor was appointed," indi cating that this fact would not bring them under the statute. Why, of course they were made before the decease, other wise they would not be claims at all and there would have been no controversy. Then the judge properly says the claim cannot be allowed, "unless it can be said that the executor made payments on the note which he personally had given the deceased in her lifetime, under such circumstances as to bring these pay ments within the provisions of the new statute. It is to be remembered that the execu tor-claimant personally had possession of this note. The judge's memorandum continues: — As these are transactions in which the executor acting in a trust capacity is dealing with himself in his personal capacity, the burden rests upon him to satisfy the court that such payments were actually made by him while acting as executor. The evidence upon this question is not clear, but rather tends to establish the fact that the advancements from year to year had been treated as payments on the note. The fact that the computations or endorsements may not have been made each year does not change the rule.

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Well, while "the burden rests upon" the claimant-executor, yet it should be remembered that the legatee-defendant is invoking a hard limitation statute, which the law requires to be strictly construed against him. Again, the claimant's uncontradicted testimony and the figures endorsed on the note satis fied the judge who heard the testimony and had opportunity to observe the bearing of the witness on the stand; while the Superior Court judge who had only the cold typewritten testimony before him, apparently again adopt ing appellate-court-discerning wisdom, thought he knew better about the wit ness's veracity, and evidently refused to believe him. And again, was not the fact, if it was a fact, "that the advancements from year to year had been treated as pay ments on the note," as stated by the judge, rather an additional reason, and cumulative evidence, for allowing the claim, than part of a reason for dis allowing it? If they were "treated as payments," ought he not to have re ceived credit therefor? And then the judge, perhaps out of commiseration for himself for having so to decide, or because of sympathy for the executor for having so decided, generously concludes: — It is unfortunate that the executor should have failed to take the necessary steps to pro tect his rights. He contributed generously to the support of the deceased, and should be repaid these sums. But the Court must administer the law as it finds it and not seek to read into the evidence facts which the executor has not established as a basis for the Court's action. This concludes natural justice versus law and equity, at least for the time being. The case is now on the way to the appellate court, which must finally decide the matter. Were it a decade ago, before the modern handling of the judiciary without gloves, the Superior