Davidson v. Stagg, 7030.

• Citation: 94 Mont. 272
• Case Date: May 22, 1933
• Court: United States State Supreme Court of Montana

94 Mont. 272

DAVIDSON
v.
STAGG.

No. 7030.

Supreme Court of Montana.

May 8, 1933.
Rehearing Denied May 22, 1933.

Appeal from District Court, Deer Lodge County; Wm. E. Carroll, Judge.

Action by F. M. Davidson, trustee, against Barbara Elizabeth Stagg. From judgment for defendant, plaintiff appeals.

Reversed and remanded, with directions.

S. P. Wilson, of Deer Lodge, and Walter L. Pope, of Missoula, for appellant.

J. J. McCaffery, of Butte, and J. B. C. Knight, of Anaconda, for respondent.

STEWART, Justice.

Appellant, plaintiff below, instituted this action as trustee, appointed by the district court of Deer Lodge county, against the respondent, defendant below. The suit is for the possession of certain jewelry described in the complaint, or for the value thereof in the sum of $7,200. Plaintiff pleaded that he was appointed trustee by the court on October 15, 1931, to succeed J. P. Stagg, deceased, alleged to have been trustee of the property involved. The appointment and the action in the present form came about by reason of a decision of this court involving the same subject-matter. Stagg v. Stagg, 90 Mont. 180, 300 P. 539, 543.

The previous action was begun by John A. Stagg, as administrator of the estate of his mother, Mary Elizabeth Stagg, deceased, and was against the same defendant. That action was upon an implied contract to recover the value of the property. This court held that the plaintiff had no right to the present possession of the property and could not maintain the action, saying: “But a trust will not fail because of want of a trustee. In such a case the court will appoint a trustee to carry out the trust.”

The facts upon which plaintiff relies here are pleaded in his complaint with particularity. Aside from the appointment of plaintiff, the facts as pleaded are substantially the same as those detailed in the previous opinion, and it is therefore unnecessary to repeat them here.

The defendant in her answer admitted the death of Mary Elizabeth Stagg and the relationship existing between the interested parties. She also admitted plaintiff's demand for the jewelry and her refusal to deliver; she denied the gift causa mortis, and other allegations of the complaint, and by way of special defenses pleaded that the action was barred by the statutes of limitation and by laches.

The original action terminated in a nonsuit. The present case, however, went to the jury on evidence adduced by both parties, and under the instructions of the court.

In both cases the basic contention was that a gift causa mortis was made by Mary Elizabeth Stagg, wife of J. P. Stagg and mother of John A. and Ira Stagg, a few hours before her death on January 19, 1919. The only evidence adduced in the original trial relative to this gift causa mortis was the testimony of Willim Stagg, daughter-in-law of Mary Elizabeth Stagg and wife of John A. Stagg. In the original action no evidence was introduced either in corroboration or denial of the testimony of Willim Stagg on this point. In the instant case it was stipulated between the parties that in view of the fact that the issues involved in this case were in many respects the same issues involved in the previous action, depositions and testimony of certain witnesses given in the previous cause should be received upon the trial of this case with the same effect as though the witnesses were present testifying in the case. The testimony of Willim Stagg was introduced under the stipulation. Therefore it will be noted that in the matter of the gift causa mortis, the testimony in the two cases was identical.

Briefly, the testimony of Willim Stagg was that on January 19, 1919, at Los Angeles, California, Mary Elizabeth Stagg, her mother-in-law, a resident of Anaconda, was in possession of the jewelry in question, claiming it as her own; that Mary Elizabeth Stagg was seriously ill and was taken to a hospital, where she submitted to an operation and died within a few hours thereafter; that just before Mary Elizabeth Stagg went to the hospital for the operation she called the witness to her bedside, spoke of the possibility of her death, gave to her the jewelry in question, and at the same time said, “Give this to Dad Stagg, and he is to keep it for the boys until they are old enough to appreciate it.” She also said that at the time Mary Elizabeth Stagg made this statement, Elizabeth Stagg was critically ill and was about to have an operation, and that within a few hours thereafter she died. Willim testified further that after the death of Mary Elizabeth Stagg, in compliance with her request she delivered the jewelry to J. P. Stagg and communicated to him the directions given her by Mary Elizabeth Stagg, and that “J. P. Stagg accepted the jewelry on those conditions.”

In Stagg v. Stagg, supra, the evidence stood alone on the matter of the gift causa mortis. While in the instant case evidence was introduced by the defendant on other points, none was introduced on this particular point. So the matter stands in the instant case as it did in the previous one. In that case the court said: “The trusteeship was accepted first by Willim Stagg, and later by James P. Stagg.”

The specifications upon which error is predicated here have to do with the refusal to give an offered instruction and the giving of other instructions over objections of the plaintiff.

The first specification of error arises from the refusal of the court to give an instruction offered by the plaintiff, to the effect that the evidence established the gift causa mortis and the trusteeship.

The second specification is based on the giving of an instruction designated No. 18 C 1, the first part of which is as...