Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
After the death of Emilie Blanche Craig on June 27, 1951 the plaintiff in the pursuit of her service as executrix of the estate discovered in the safe deposit box of the decedent at the Haddonfield National Bank two acknowledgments of indebtedness signed by the defendant, of which the following are copies:
This is to acknowledge the loan of ($2000.00) Two thousand dollars to me on June 1, 1950 for which the interest at six percent has been paid ($120.00) one hundred and twenty dollars has been paid until next June 1, 1951 when it is again due.
This is to acknowledge the loan of $800 to me on Sept. 15, 1950. To be paid back at $150.00 a month, plus 6% interest.
The box also contained two checks of the defendant payable to plaintiff's testatrix, the one in the amount of $1,000 dated February 3, 1951, and the other for $150 bearing date March 31, 1951. Still another check of the defendant payable to plaintiff's testatrix in the sum of $150 dated March 11, 1950 was found among the decedent's personal effects. The $1,000 check and the check for $150 dated March 31, 1951, upon presentation to the bank by the plaintiff, were honored, but the check for $150 dated March 11, 1950 seems to have been dishonored because of insufficient funds in the account of the defendant. The plaintiff applied the $1,150 to the credit of the loan of $2,000 evidenced by the acknowledgment of June 1, 1950.
The plaintiff also acquired information that the defendant was in possession of certain articles of flat silver and some pieces of furniture previously owned by the decedent.
The existence, at the time of the death of the testatrix, of the previously acknowledged indebtedness of $2,800 and the ownership at that time of the chattels were disputatious subjects between the defendant and the representative of the decedent's estate, hence this litigation in which the executrix sought judgment against the defendant for the balance of the alleged indebtedness and for the possession of the designated chattels. Summarily explained, the defendant averred the extinguishment of the debt upon the death of the testatrix and her acquisition of the ownership of the chattels by the inter vivos gift of the testatrix. By way of a counterclaim broadened by the pretrial order the defendant may be said to have demanded of the plaintiff the repayment of the proceeds of the two checks.
The trial terminated in the return of a verdict by the jury in favor of the defendant and against the plaintiff for the return to the defendant of the $1,150 and denied to the plaintiff a recovery of the personal property claimed by the estate. The plaintiff's application for a new trial was refused but the judgment in favor of the ...