Opinion
Nos. 345, 346.
March 19, 1946. Rehearing Denied April 1, 1946.
Appeals from the Municipal Court for the District of Columbia, Civil Division.
Mark C. Bowsher, of Washington, D.C., for Rossiter.
Arthur P. Drury, of Washington, D.C. (Benjamin S. Minor, John M. Lynham, and John E. Powell, all of Washington, D.C., on the brief), for Nat. S. T. Co.
Before CAYTON, Chief Judge, and HOOD, Associate Judge.
Plaintiff Thomas J. Rossiter, a physician, sued the National Savings and Trust Company, executor of the estate of his deceased brother, Joseph C. Rossiter, for $349 covering medical services allegedly rendered to said brother. The executor resisted the claim, and also filed a counterclaim for $770 for the use of a portion of premises 820 D Street, S.E.
After trial, judgment was ordered for the plaintiff for the amount of his claim, and for the executor for the amount of its counterclaim. Both parties have appealed from the judgments against them. They will be designated here as plaintiff and executor, respectively, and their appeals will be considered and decided separately.
Plaintiff's Appeal. The first important point raised by plaintiff is that the executor as such has no right to "rents" accruing after the death of the testator. At the trial plaintiff admitted that he had a verbal agreement with his brother under which he had paid him $40 per month (only $35 per month was claimed in the suit) for the use of that portion of the premises which he occupied. He also admitted that he had paid nothing to anyone after his brother's death. He also admitted, and admits here, that his brother's will vested the executor with power of sale; but he urges that this power was merely a naked one, carrying no authority to collect "rents" accruing after the death of the testator. But as we view the matter it is of little difference whether the indebtedness be called "rent" or merely a debt. Nor in the circumstances of this case does it seem of much consequence whether plaintiff owed it for a period before or after the death of the testator. In either event it constitutes a valid and subsisting obligation of the plaintiff to his brother's estate. That being so, the executor had the right to sue for and receive it.
Plaintiff argues that rents from a decedent's real property accruing after his death are not assets of the estate, but vest in the heir or devisee — here a grandniece. But here the devisee cannot recover it because, as we shall see, there was an agreement between all parties in interest that the executor should reduce the entire estate to cash. Thus the devisee's interest would no longer be in the form of real estate but would be and become payable out of the cash assets of the estate. But if plaintiff's position were correct, he would be permitted to escape payment of his obligation, because there was no one entitled to receive the payment. We know of no decision or rule of law which sanctions such a result, and we are satisfied that the only solution is that adopted by the trial judge: to order the debt paid to the executor, who would make distribution under the agreement we are about to mention.
Plaintiff's next contention is that the executor is estopped to assert the claim because of a certain compromise agreement entered into by all the parties in interest, including the executor, in order to avoid a threatened caveat of the will. By that agreement the various parties released their respective claims against the estate and consented to a schedule of distribution. But in the agreement we have found nothing by way of estoppel or otherwise which precludes the executor from asserting its claim against the plaintiff and collecting it as an asset of the estate.
Appeal of the Executor. The executor attacks that part of the judgment which awarded $349 to the plaintiff, on two principal grounds: first, that plaintiff did not sufficiently prove his case; and second, that it was barred by limitations.
With the executor's first contention we cannot agree. There were in the plaintiff's evidence several discrepancies which we need not detail here. There were some contradictions too. But it is not our function to weigh evidence, or to decide issues of fact, or pass upon the credibility of witnesses. We cannot say that the evidence as a whole was such as to justify us in holding that the trial judge was "plainly wrong" in deciding for plaintiff on his claim.
Nolan v. Werth, 79 U.S.App.D.C. 33, 142 F.2d 9; Perlman v. Chal-Bro, Inc., D.C.Mun.App., 43 A.2d 755; Watwood v. Potomac Chemical Co., D.C.Mun.App., 42 A.2d 728.
The next question is whether a part of plaintiff's claim is barred by limitations. The record reveals that $173 of the claim accrued more than three years before the death of plaintiff's brother. Accordingly so much of the claim would seem to be barred by the statute unless there were some special circumstances removing the bar.
Plaintiff sought to show that there were payments on account within the three-year period preceding his brother's death. His office record did reveal two payments of $5 each during that period; but both such payments coincided exactly with $5 charges for heart examinations made on each of said dates. And while plaintiff took the position that these were payments on account which revived the debt, he was merely stating his own understanding to that effect. He did not attempt to say that his brother had ever approved the claim or instructed him to apply the payments on account. Indeed, he did not show that his brother was at any time ever presented with a statement of the account.
That being so, it was not sufficient to take the case out of the operation of the statute of limitations. To accomplish that result there must be more than a unilateral understanding on the part of the creditor that a payment or payments are to be treated as breathing new life into a claim which has expired by limitations. There must be a showing that the party making the payments intended them as an acknowledgment of the debt. United States v. Wilder, 13 Wall. 254, 20 L.Ed. 681. See also Moore v. Snider, 71 App.D.C. 293, 109 F.2d 840.
Thus, in our view of the law, the trial judge should have disallowed $173 of plaintiff's claim, that being the amount which was barred under the statute, and should have made a finding for plaintiff for $176. We modify the judgment for plaintiff accordingly.
We have given careful study to other contentions made by both parties, and we are satisfied the case requires affirmance, with the modification we have ordered.
Modified and affirmed.