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In Re Estate of Ruebush

NOVEMBER 16, 1964.

IN THE MATTER OF THE ESTATE OF FRED RUEBUSH, DECEASED. ERNEST SIMPSON, APPELLANT,

v.

HENRY RUEBUSH, AS ADMINISTRATOR, ETC., APPELLEE.



Appeal from the Circuit Court of McDonough County; the Hon. EDWIN BECKER, Judge, presiding. Reversed and remanded.

SCHEINEMAN, J.

Ernest Simpson filed a claim against the Estate of Fred Ruebush, deceased, based on a promissory note for the face amount of $60,000, dated February 21, 1959. It contained a promise to pay "six months after date," but at the bottom it is stated, "due at death." This ambiguity was resolved by parole evidence that the note was intended to be due at death, but the estate was to have six months to arrange for settlement.

The trial judge disallowed the entire claim. On this appeal it is contended that the decision is contrary to the manifest weight of the evidence, and it is our opinion that this contention is well founded. This necessitates an extensive recital of the testimony, thus producing a long opinion.

Since there were two persons who signed as witnesses to the signature of the deceased, counsel chose to permit the claimant to testify, without objection, so that he would be subjected to extensive cross examination.

He testified that he worked for Ruebush in 1952-1953 for $30 per week with house, garden, meat, and milk furnished, and part of the time Ruebush paid the electric bill.

He left Ruebush in 1953, moved to Macomb, and worked on a milk route at $110 per week. In 1955 he again worked for Ruebush and helped farm 700 or 800 acres, but continued to occupy his own home. He was paid $36 per week and was to receive a bonus of $5,000 at the end of the crop year. The bonus received was a note for $5,000.

He bought a house in Macomb for $7,500 on contract. By 1956 he had paid $2,700 on the principal and made improvements costing $4,300. This investment of $7,000 was traded as a down payment on a farm with a balance due of $14,200. He also gave a note for $1,000 for personal property. He had paid off this note by 1958 and had paid $250 semiannually on the farm. He had also obtained loans at a bank and a finance company.

In January, 1958 Ruebush asked him to come back and farm on shares and to give up his farm contract. As a result, he assigned the contract to one Stimson for nothing. He also sold some personal property to Stimson for $1,175. He had acquired some livestock and machinery at farm sales and had the increase of the livestock, most of which he turned over to Ruebush at fixed prices agreed to by Ruebush. The valuation placed on the livestock was $9,225, and on the machinery, $2,650.

Ruebush gave him a note for $37,500 to pay for the livestock and machinery, also $5,000 for the previous note which was now returned, also $4,000 as his bonus for 1956, not previously paid, and the balance was to compensate him for the loss he took on his farm. This "trade" was agreed to in January, 1958, and completed in April. In the meantime there had been further discussions with the result that the claimant did not farm on shares but continued to work for $36 per week and furnished his own house.

He delivered the livestock to a Ruebush farm, known as the James Place, and the machinery to the Camp Ellis farm. Thereafter he worked for Ruebush on the James Place, the Camp Ellis farm, and other Ruebush farms near Scitoa and Good Hope until after Ruebush died, and he was paid $36 per week.

Prior to the date of the present note, Ruebush wanted to buy a 205-acre farm at Camp Ellis, but he wanted Simpson to agree to work for him until after he died, and proposed to take up the $37,500 note and give him the $60,000 note, expressing the wish that Simpson might trade the note for the Camp Ellis farm after Ruebush died. Shortly prior to the date of the new note Ruebush did buy the farm, and it otherwise appears that Simpson had agreed to work for him the rest of his life.

On February 21, 1959, the two witnesses to this note were doing some work for Ruebush and had no personal interest in the transaction or any knowledge of it except what Ruebush told them at the time. In the presence of Simpson and one Rauch, Ruebush got the note out of his car, placed it on the hood, and wrote the name Ernest Simpson as payee. He then asked Rauch to fill in the rest of the blanks, and the amount of $60,000, and said he hoped Simpson could get the place out of it when he died. After the note was completed, Ruebush signed and then the two witnesses signed, and the note was handed to Simpson. At some other time, he returned the prior note for $37,500.

From time to time Ruebush advanced some money to Simpson in addition to his weekly wage. Ruebush wanted this figured out and endorsed on the note as a payment of interest, so that if something happened to him there would not be any unsettled claims between them. The amount came to $2,775.05. They went to a bank in Table Grove, and Simpson asked a banker to make an endorsement. As he remembered it, Ruebush did not go up to the window, but he did look at the endorsement. The endorsement was made in February, 1963, but the banker dated it 1962 by mistake. Not long thereafter Ruebush died, but the testimony does not give the precise date.

The signature witness, Rauch, testified he was doing some work for Ruebush on the date of the note. When he came back from lunch, Ruebush was waiting in his car. When Simpson arrived, Ruebush got out, and told Rauch he had a note for Simpson, and asked him to fill in some blanks. Ruebush stood by him in a position to see what he wrote. There were a few spots of moisture on the hood because there was some snow that day. The moisture started to soak the paper so Ruebush got an envelope from the car to put under the note. He testified Ruebush said he owed Simpson some money, and Simpson had agreed to work for him until he died for only $36 per week, which he stated was not enough wages, and he wanted Simpson to have it in later years. Rauch filled in all the blanks except payee, as Ruebush told him to write the date, the $60,000, 5% the word "date" and "at death." The note contained the usual recital of "value received." Then he directed that six months be on the first line, because he wanted his heirs to have time to settle his estate and the note. Rauch said the discoloration on the note was due to the moisture or perhaps to the other witness placing his gloved thumb on the note.

After the note was complete, Ruebush read it, said it was all right, and signed it; no one showed him where to sign. He handed the ...


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