Page:Federal Reporter, 1st Series, Volume 10.djvu/44

 32 FBDEBAL BEPOBTEB. �statements, were abstracted, by collusion between these brothers, for the purpose of using them as debts to abaorb the assets and defeat the provisions of the will in favor of the widow. There has been no proof introduced to sustain this charge, and it is sought to be eatab- lished solely by circumstantial inferences. The relation between the father and son is sufficient to explain the accumulation of so large an indebtedness, running for such great Jength of time. The fact that this executor, having paid the outside debts, paid over all this money to his brother on these claims without retaining anything to pay a debt due to himself, or any commissions for himself as exec- ntor, together with the other facts relating to the plans adopted to avoid the statute of limitations and protect A. B. Pulliam's land, when taken in connection with the other circumstances, that by this means the notes, which came to the testator by his marriage with this plain- tif, and which, by the will, he has given to her discharged of any liability for debts, have been absorbed in the payment of these claims due Joel L. Pulliam, are sufiScient to arouse (considering also the charges made against her by the cross-bill) at least an acute sus- picion of unfair dealing between these brothers to defeat her rights under the will ; and they j ustify the defendants in the introduction of proof to sustain their characters against the imputations of the bill. But, after all, the facts show conclusively that this debt from the father to the son did exist, and a court cannot, on these circum- stances, override the presumptions arising from the possession of the notes, and infer that men of their high character have abstracted them from their father's papers for a fraudulent purpose. The circum- stances show unusual favoritism by the executor for his brother as a crediter, and possibly if this plaintiff had been his own mother she would have had no cause of complaint, for it is much more probable that creditors would have been sacrificed, if sacrifice were necessary. �But there can be no dispute that the plaintiff's notes were assets in the hands of the executor, liable under the law to the payment of debts, in the absence of other assets for the purpose. The proposition Buggested in the bill, that the wife could claim them by survivor- ship, was not seriously pressed at the hearing, and has no support under the facts of the case. �It is conceded by counsel for the plaintiff that the notes of Joel L. Pulliam were not barred, at the time of the testator's death, by the common statute of limitations of six years. This being so, they were good vouchers to the executor, unless barred by the dead man's stat- ute, by which it is provided that all claims against a decedent shall be ��� �