Bright v. Ecker

• Citation: 68 N.W. 326,9 S.D. 192
• Parties: BRIGHT v. ECKER et al.
• Decision Date: 19 August 1896
• Court: South Dakota Supreme Court

68 N.W. 326

9 S.D. 192

BRIGHT v. ECKER et al.

Supreme Court of South Dakota

August 19, 1896

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by H. C. Bright, administrator of the estate of Jerry Law deceased, against O. Ecker and Susie Law, to recover assets claimed to belong to his intestate's estate. From an order denying his motion for a new trial, plaintiff appeals. Reversed.

Joe Kirby, for appellant. R. W. Hobart and Aikens, Bailey & Voorhees, for respondents.

HANEY J.

At the close of plaintiff's testimony, the court, on defendants' motion, no grounds therefor being stated directed a verdict in their favor. Plaintiff appeals from an order denying his motion for a new trial. The facts alleged in the complaint are substantially as follows: Jerry Law, a resident and citizen of Minnehaha county, died, intestate therein October 14, 1891. Plaintiff was duly appointed administrator of his estate by the county court of that county, June 30, 1893, and qualified and entered upon the discharge of his duties. During his last illness, in view of and immediately prior to death, the intestate, at the request of defendant Ecker, gave defendant Law property of the value of $5,000, the exact description of which is unknown to plaintiff, and thereby attempted to transfer and convey such property to her. There are now outstanding and unpaid a large amount of claims against said estate, which claims have been duly presented to this administrator for allowance, and have by him been allowed, in the sum of about $800, which claims so allowed have been approved by the judge of said county court, and are now unpaid, together with the costs of administration, for the reason that decedent had no property other than that mentioned herein out of which the same could be satisfied. A large amount of such property consisted of farm machinery and a warehouse, at the time of said purported gift in the possession and control of decedent, and the same was not accompanied by any immediate delivery, or followed by actual and continued change of possession, but remained in possession of decedent until after his death. After the death of the intestate, and before the granting of letters of administration to plaintiff, defendants embezzled and alienated moneys, goods, and chattels, and effects of the decedent of the value of $5,000. Thereafter, and after his appointment, plaintiff complained to said county court, on oath, that defendants were suspected of having concealed, embezzled, conveyed away, and disposed of the moneys, goods, and chattels of decedent, and had in their possession deeds, conveyances, bonds, contracts, and other writings which contain evidence of, or tend to disclose, the right, title, interest, and claim of decedent to real and personal estate; and the judge of said court thereupon cited defendants to appear and answer on oath upon the matters of said complaint. Pursuant to such citation, defendants appeared, were examined, and, upon such examination it appearing that they had concealed, conveyed away, and disposed of moneys, goods, and chattels of decedent, the court made an order requiring them to disclose their knowledge thereof to plaintiff, and to pay over to plaintiff, as administrator, the value of the property so disposed of, in the sum of $5,000. Plaintiff has demanded possession of said property, but his demand has been refused, and defendants have failed and neglected to comply in any manner with the aforesaid order of the county court.

Plaintiff offered in evidence his own affidavit, with the...