On appeal from Superior Court, Law Division, Somerset County.
Fritz, Bischoff and Morgan.
The administrator ad prosequendum of the estate of Anita Willis appeals from the judgment in favor of plaintiffs in the amount of $6,000. This judgment concerned two separate loans allegedly made to the deceased, Anita Willis, in 1971. The first of these was a $1,000 loan from plaintiff F & H Realty Company and the second was in the amount of $5,000 from plaintiff DeBlanco. On this appeal defendant argues that the judgment against the estate is against the weight of the evidence. We conclude that the judgment for the $5,000 loan was amply supported by the record; with respect to the $1,000 loan, however, we agree with defendant that the evidence was insufficient to justify judgment in favor of plaintiff.
The facts are simply stated. Plaintiff DeBlanco, the only witness, testified that he and decedent Anita Willis had a close relationship, both personal and business, prior to her death in November 1972. Though married to another, DeBlanco indicated he was in love with Mrs. Willis. He was also her business associate in a real estate brokerage enterprise known as Anita Willis, Inc., each holding 49 shares in this corporation. DeBlanco testified, however, that he was only a silent partner who did not actively
participate in the business and never received any "salary or pay" from the corporation.
On February 11, 1971 DeBlanco drew a check on the account of another of his interests, F & H Realty Co., in the amount of $1,000 payable to Anita Willis, Inc. Except for the check itself, the only evidence concerning this alleged loan was DeBlanco's testimony that the check represented a loss to Anita Willis in her individual capacity, which loan was never repaid despite previous demand for payment.
Because this suit was brought against the deceased's estate, plaintiff was obligated to prove his case by a higher standard of proof than ordinarily obtains. N.J.S.A. 2A:81-2, commonly known as the Dead Man's Act, requires that such claims be established "by clear and convincing proof."
Nothing in the record suggests that the trial judge evaluated the evidence under the clear and convincing standard. Exercising our original jurisdiction (R. 2:10-5), we conclude that the unsupported testimony of an interested party, such as plaintiff here, that a check made payable to a corporation was actually a loan to an individual, simply does not meet that standard. Accordingly, we vacate that portion of the judgment relating to the $1,000 loan.
The $5,000 loan stands on a different footing. This transaction which occurred on August 25, 1971 was formalized by a promissory note. The note is in the usual form, with all necessary requisites for a valid note, the only peculiarity being in the signature of the maker. The note is signed:
Because this "note" is a valid negotiable instrument (N.J.S.A. 12A:3-104(1) and (2)(d)), it is governed by the provisions of the Uniform Commercial Code -- "Commercial Paper," N.J.S.A. 12A:3-101 et seq. , in ...