Foster v. Murphy
| Decision Date | 03 May 1906 |
| Docket Number | 14,301 |
| Citation | 107 N.W. 843,76 Neb. 576 |
| Parties | WILLIAM A. FOSTER, ADMINISTRATOR, v. DENNIS MURPHY |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.
AFFIRMED.
E. M Bartlett and W. N. Chambers, for plaintiff in error.
F. C O'Halloren and E. C. Page, contra.
DUFFIE, C., not sitting.
On the 30th day of September, 1902, Dennis Murphy, the defendant, filed a petition in the county court of Douglas county for letters of administration on the estate of his brother, Edmund Murphy, deceased. His appointment followed, and afterwards on the 29th day of October, 1902, he filed an inventory, listing certain real estate, and showing that $ 600 represented a certain certificate of deposit, and $ 12.58 found on the person of the deceased had come into his possession as assets of the estate. Afterwards, on the 6th day of November of the same year, he filed an amended inventory, again listing the real estate, but omitting the money listed in the former inventory and noting that it had been there listed by mistake. For reasons not necessary to mention he was afterwards removed from his trust, and William A. Foster, the plaintiff, was appointed in his stead. It does not appear that the defendant ever made, or was ever asked to make, a settlement of his accounts as administrator. On the 13th day of May, 1903, the plaintiff made application in writing to the county court for an order requiring the defendant to pay over to him, as administrator, the $ 600 listed on the first inventory as the proceeds of a certificate of deposit and part of the assets of the estate. The defendant filed an answer, alleging that the certificate of deposit had been indorsed and transferred to him by the deceased during his last illness as a gift and in expectation of death, and that he retained possession thereof until after the death of the deceased. The answer further alleges that in listing the proceeds of the certificate as part of the assets of the estate he acted in ignorance of his rights, and upon the advice of the clerk of the county court and at the request of the bank who had issued the certificate. The county court found that the money belonged to the estate, and entered an order requiring the defendant to pay it over to the plaintiff as the administrator thereof. The defendant appealed to the district court, whereupon the plaintiff filed a motion to dismiss the appeal on the ground that the order was not a final order or determination of the rights of the parties. The motion was overruled and a hearing had on the merits. The district court found for the defendant, and gave judgment accordingly. The plaintiff brings error.
It is insisted that the finding of the district court is not sustained by sufficient evidence. The deceased was a bachelor. His next of kin are the defendant, who resides in Omaha, and two sisters in Ireland. During his last illness he was an inmate of St. Joseph's Hospital in Omaha. Before entering the hospital he deposited $ 600 in a bank of that city, receiving therefor a certificate of deposit. Aside from some real estate of small value he had no other property save a trifling amount of money found on his person after his death. He was a laboring man and uneducated. The defendant's wife was sworn as a witness in his behalf. The plaintiff objected to her competency, basing his objection on section 329 of the code, which provides that "no person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness." The objection was overruled, and the witness testified in effect that about two weeks before the death of the deceased she called upon him at the hospital, and he told her that he wanted the defendant to come to the hospital and have the certificate of deposit in question signed over to him; that she and her husband called that evening, and, upon their arrival, the deceased asked one of the attendants to bring him his belongings; that thereupon the attendant retired and soon returned with a pocketbook which she placed in his hands; that he took therefrom the certificate of deposit and handed it to the defendant, saying, "What is there is yours, and if anything should happen you will know what to do with it"; that he then asked an attendant to bring pen and ink, and, when it was brought, asked the defendant to indorse the certificate for him, whereupon the defendant wrote the deceased's name on the certificate, the latter holding the pen at the same time; that he then handed the certificate to the defendant who retained it until after the deceased died. Two of the attendants of the hospital were also sworn and examined on behalf of the defendant. Both corroborate the wife as to the visit of herself and husband to the deceased on the evening in question. One of them testified that on the occasion of that visit the deceased called for his belongings, and she brought him his pocketbook, placed it in his hands and withdrew from the room. The other testified to his request for pen and ink at that time; that she brought them for him, and, like the other, immediately withdrew from the room in accordance with some rule of the hospital. She also testified to a previous conversation with the deceased in which he expressed an intention to give the property to the defendant. The substance of defendant's explanation of his listing the proceeds of the certificate as a part of the assets of the estate is as follows: That he presented it to the...
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