Freeman v. Peterson

• Citation: 100 P. 600,45 Colo. 102
• Parties: FREEMAN v. PETERSON et al.
• Decision Date: 01 March 1909
• Court: Supreme Court of Colorado

100 P. 600

45 Colo. 102

FREEMAN v. PETERSON et al.

Supreme Court of Colorado

March 1, 1909

Appeal from District Court, San Miguel County; Theron Stevens Judge.

Action by Ernest Freeman against Caroline Peterson and others, in which Martin L. Brown, administrator of Charles Peterson intervened. Judgment for defendants and the intervener, and plaintiff appeals. Affirmed.

L. C Kinikin, for appellant.

Rod McDonald, J. W. Martin, and Fitzgarrald & Brown, for appellees.

HILL J.

On January 26, 1905, Charles Peterson, who was a man of mature years and an uncle of the appellant, was found dead in his cabin at or near Telluride in San Miguel county. It appears he was living alone. Near his bed a book was found containing some writing of the deceased, and probably written by him in anticipation of his death, which reads as follows: 'Telluride, Jan. 25, 1905. To Ernest Freeman: You are entitled to one half of my mining property and the rest goes to square my bills. Also collect all my old accounts what I had before I went in with Barney. Do not pay any gambling debts; it is 35.00 Andy McMahon, 25.00 Wagoner, 100 to Weeden, 100 to Talman, 150 Gust Paro in note; I have paid him 25. Chas. Peterson. Barney, you take saloon as it stands, collect all our bills and pay out as far as it goes and if it is short take of the half of interest in rest of my property to satisfy rest of bills. Chas. Peterson. Jarves and Piquard note is gambling debt. Check drawed last night is for gambling.' At the time of the death of the deceased, there stood in his name certain interests in certain mining claims, as well as contracts for interests in others, also a small tract of land and some personal property. He was in debt, and it was claimed by the appellees the debts were equal to the value of his property. Thereafter, the appellant, who was a nephew of the deceased, had himself appointed as administrator of his uncle's estate, qualified as such, filed the necessary inventories, which included the interests in the real estate above referred to, out of which this controversy arose. He collected some outstanding bills, paid some of the debts, and then resigned as the administrator and brought this action against all of the heirs of the deceased except Mrs. C. L. Fridman, setting up the facts in his complaint that the defendants, with Mrs. Fridman, were surviving sisters and sole heirs at law of the deceased; that Peterson, at the time of his death, was possessed of certain real estate as follows: An undivided one-half interest in the Gertrude lode mining claim, an undivided one-fourth interest in the Modena lode mining claim, an undivided one-fourth interest in the Lucky and Little Crystal pocket lode mining claim, and an undivided one-third interest in the Mobile and Marie lode mining claim, all situate in Upper San Miguel mining district; that upon the death of Peterson the title vested in the defendants and the said Mrs. C. L. Fridman in equal shares, the deceased having left no widow, children, father, mother, or brother him surviving; alleged that, while the title to the property stood in the name of Peterson, he held the same in trust, to the extent of an undivided one-half interest of the interest aforesaid, for the use and benefit of the plaintiff; that said properties were purchased and acquired with the joint funds of plaintiff and deceased, and their joint funds and labors were used and appropriated in the development of the properties; that, by mutual agreement between them, the titles were taken and held in the name of Peterson on condition that the half interest of plaintiff would be conveyed upon demand; that ever since acquirement of titles the lands have been in the joint possession of the parties, and said deceased held out and represented plaintiff as an equal owner with him; states the refusal of the heirs, except Mrs. Fridman, to convey to him; claims there was then no administrator of said estate, and prayed judgment that he be decreed to be the owner of one-half of the interest in the title held by Peterson at the time of his death; that defendants be ordered to convey the same to him, etc.

The defendants denied the material allegations of the complaint affecting their interest in the property.

After the resignation of the appellant as administrator, Mr. Martin L. Brown was appointed administrator of the estate, qualified, and by proper pleadings was allowed to intervene as such, and filed an answer with similar denials as the other defendants. Trial was had to the court without a jury, who found the facts against the appellant and ordered judgment accordingly, from which appellant appeals to this court.

The first alleged error assigned for our consideration is, the administrator was allowed to testify in violation of sections 4816 and 4818, Mills' Ann. St. We do not deem it necessary to pass upon this question. The trial was to the court, and in our opinion there is sufficient unobjectionable evidence to sustain its findings and decree. In such cases, error based on the alleged admissions of illegal evidence will not be considered. Kilham v. W. B. & S.D. Co., 30 Colo. 367, 70 P. 409; Rowe v. Johnson, 33 Colo. 469, 81 P. 268.

The second assignment of error is that the judgment is against the law and the evidence. It has been earnestly urged by counsel for appellant that the evidence shows that Peterson and Freeman, for several years prior to Mr. Peterson's death, were partners in the saloon business in Telluride, as well as partners in the mining business; that the saloon business was run in the name of Peterson, and the title to most of the mining property was held in his name, and it was only upon the refusal of four of the five sisters, sole heirs, to make a deed for one-half interest belonging to Freeman, that the latter brought this suit to recover, and he claims by certain admissions of Peterson and the writing by him in the book above quoted, made immediately prior to his death, were sufficient to warrant the court in finding that Freeman was a partner and half owner with Peterson in these mining properties. For the purpose of satisfying ourselves as to this contention, we have read the original transcript of the evidence, and, after doing so, are satisfied that the well-known rule of law, 'where evidence is conflicting the finding of the trial court should not be disturbed, except in certain cases,' of which this does not appear to be one, should not only apply here and the findings of the lower court not be disturbed, but, by our examination of the evidence, we can come to no other conclusion than that found by the trial court, and are of the opinion, had the defendants failed to...