Currie v. Langston

• Decision Date: 01 December 1932
• Docket Number: 6949.
• Citation: 16 P.2d 708,92 Mont. 570
• Parties: CURRIE v. LANGSTON.
• Court: Montana Supreme Court

16 P.2d 708

92 Mont. 570

CURRIE v. LANGSTON.

No. 6949.

Supreme Court of Montana

December 1, 1932

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Action by John P. Currie, as administrator of the estate of John G Currie, deceased, against A. G. Langston. From a judgment in favor of defendant, plaintiff appeals.

Reversed and remanded for a new trial.

N. A Rotering, of Butte, for appellant.

Miles J. Cavanaugh and R. Lewis Brown, both of Butte, for respondent.

ANGSTMAN J.

Plaintiff, as administrator of the estate of John G. Currie, deceased, brought this action to recover the sum of $3,975, lawful money of the United States. He alleges that John G. Currie was the owner of the money at the time of his death, on April 5, 1930, and that defendant at about that time took possession of it and converted it to his own use. The answer is in effect a general denial together with an affirmative allegation that all of the money in the possession of defendant at the time of and since the death of John G. Currie is the sole, separate, and individual money of defendant. The jury found for defendant, and judgment was entered in his favor for costs. Plaintiff's motion for a new trial was denied, and this appeal is from the judgment.

The facts developed at the trial were these: John G. Currie at the time of his death was 88 years of age. He lived for many years at 942 Quartz street, in Butte. He was a bachelor. Plaintiff, a nephew, who lives at Ryegate, is the only relative living in Montana. Defendant for about 20 years prior to the death of John G. Currie, at the latter's request, made his home with him. Defendant became his intimate companion, and was the only person with whom Currie associated for many years prior to his death.

Currie kept a bank account, but also kept a considerable amount of currency buried on the premises at 942 Quartz street. On the day of his death there was admittedly some currency in the house occupied by him and defendant, but the exact amount and the ownership of it are in dispute.

Plaintiff called as a witness Mrs. J. M. Gillies, who lived directly across the street from the habitat of the deceased. She testified that defendant brought a tin box or can containing $1,390 in currency and $2,100 in gold to her house on the evening of April 5th, dumped it on the kitchen table, and said, "Ain't that wonderful? I never knew the old man had that much." The gold, she said, was counted in her presence. She said that defendant requested her daughter, Edna, to keep it for him until he came back from Iowa, where he acompanied the body of John G. Currie for burial. The money was placed in the piano in her house for safe-keeping, and there remained until about the middle of June, 1930. On cross-examination it was developed that, when defendant got back from the trip East, her daughter Edna requested him to take the money away because she did not want the responsibility of keeping it, and that defendant then said "he would wait a few days; that he was going to be administrator and that he was going to advertise that money."

Two appraisers of the estate testified for plaintiff to the effect that on September 5, 1930, they, in company with others, interviewed the defendant with respect to money in the house at the time of the death of Mr. Currie; that defendant at first was reluctant to give any information; that he first asserted that there was no money in the house, but finally, after considerable questioning for some fifteen minutes, admitted that there was, but that it had been given to him by Mr. Currie; that he also stated that money had been buried under the stove, but witnesses found no indication that the floor had been disturbed.

The administrator testified that defendant had told him, while John G. Currie was in the hospital during his last illness, that deceased had during his lifetime hidden some gold coin in and about the house, that, after the death of Currie, plaintiff and defendant looked for the money at different times, and that defendant did not tell plaintiff that he had already removed it from the house.

Defendant, testifying in his own behalf, said he first saw the money in question in 1914. That John G. Currie kept it hidden in various places around the house. That on Christmas Day in 1923 Currie brought the money out, placed it on the table and counted it, called the witness over, and said: "Now, son, I am going to make you a Christmas present of this. I promised this to you three or four years ago. Here it is. I want you to keep this money as long as you live. Now I kept this money for years and I want you to keep it as long as you live, and never put it in a bank or any other place, because if it goes broke you won't have any money, and that is why I kept it. You keep it and in case the banks go broke you will have a few dollars left. You will have bean money." That ever since that time the witness kept the money in a fruit jar wrapped in paper. That he claimed the money as his own since that time and buried it in the ground. That it was buried until he and Currie got a safe in 1929. That defendant used one-half of the safe and Currie the other half. That the money was then placed in his part of the safe, he retaining a key to that particular drawer. That, after Currie died, he took the money to the Gillies residence. That the money consisted of $1,380 in gold and $1,370 in currency. That it was taken there at the suggestion of the Gillies for safe-keeping while the witness accompanied the body of deceased to Iowa for burial. He denied making the statement to the effect that he did not know the old man had that much money, and said that he told Mrs. Gillies and her daughter that the old man had given him the money.

Plaintiff assigns error in permitting defendant over objection to testify concerning the gift, inasmuch as the answer does not contain any allegations concerning it. This evidence was admissible under the general denial, for the rule is "that in an action in conversion defendant under a general denial may prove that he and not the plaintiff is the owner of the property alleged to be converted." Staubach v. Rexford, 2 Mont. 565; Kipp v. Silverman, 25 Mont. 296, 64 P. 884; Donovan-McCormick Co. v. Sparr, 34 Mont. 237, 85 P. 1029; and see Gallick v. Bordeaux, 22 Mont. 470, 56 P. 961. And where, as here, in an action of conversion brought by the administrator, defendant's ownership depends upon a gift inter vivos, evidence thereof is admissible under the general denial. Manning v. Maytubby, 42 Okl. 414, 141 P. 781. The contrary rule, however, was asserted in Matter of Canfield's Estate, 176 A.D. 554, 163 N.Y.S. 191. We believe the Oklahoma court announced the correct rule.

Related to this assignment of error is the claim of plaintiff that the court misdirected the jury on the question of the burden of proof. Without objection, the court instructed the jury that the burden is upon the plaintiff to prove each and every controverted allegation in his complaint by a preponderance of the evidence. Over plaintiff's objection, the court gave instruction numbered 10, to the effect that the burden of proving that the money was the property of John G. Currie at the time of his death is upon the plaintiff. Likewise, over plaintiff's objection, the court gave instruction numbered 18, reading as follows: "You are instructed that in this case Langston claims that John G. Currie voluntarily delivered the gold and currency in dispute to him with the present intention to vest the title in him, and that he accepted it; and unless you find by a preponderance of the evidence in this case that this claim by Langston is not true, your verdict should be for the defendant."

Plaintiff's objection to instructions numbered 10 and 18 was to the effect that, when defendant relies upon a gift, the burden rests upon him to establish it. Plaintiff also offered instruction numbered 26, placing the burden of proving the gift upon defendant. This was refused.

Here the evidence shows without dispute that the property in question at one time belonged to decedent, and that he was the owner of it at the time of his death, unless prior thereto he made the gift claimed by defendant. The cases are in accord that one who claims property by virtue of a gift inter vivos, and particularly when it is not asserted until the lips of the donor are sealed by death, has the burden of proving that fact. Matter of Canfield's Estate, supra; In re Humphrey's Estate (Sur.) 183 N.Y.S. 133; In re Crook's Estate (Sur.) 190 N.Y.S. 285; In re Wilson's Estate, 140 Misc. 10, 250 N.Y.S. 553; In re Weeks' Estate, 142 Misc. 752, 256 N.Y.S. 387; In re Calen's Estate, 142 Misc. 363, 255 N.Y.S. 383; Knight v. Mears, 156 Va. 676, 159 S.E. 119; First Nat. Bank of Lyndhurst v. Rutherford Trust Co., 109 N. J. Eq. 265, 157 A. 142; Feil v. First Nat. Bank (Mo. App.) 269 S.W. 936; In re Van Fossen (Mo. App.) 13 S.W.2d 1076; Stiness v. Brennan, 51 R.I. 284, 154 A. 122; Bean v. Bean, 71 N.H. 538, 53 A. 907; Madison Trust Co. v. Allen, 105 N. J. Eq. 230, 147 A. 546; Buckel v. Smith's Adm'r, 82 S.W. 235, 26 Ky. Law Rep. 494; Barr v. Bacon, 162 La. 758, 111 So. 86; Eichin v. Eichin, 244 Ill.App. 89; Eckstrom v. Brooks, 115 Cal.App. 727, 2 P.2d 207; In re Yeager's Estate, 273 Pa. 359, 117 A. 67, and see Stagg v. Stagg, 90 Mont. 180, 300 P. 539.

But in reliance upon the cases of Mauldin v. Ball, 5 Mont 96, 1 P. 409; Leggatt v. Stewart, 5 Mont. 107, 2 P. 320; Meyendorf v. Frohner, 3 Mont. 282; ...