Grubbe v. Grubbe

• Decision Date: 13 November 1894
• Citation: 38 P. 182,26 Or. 363
• Parties: GRUBBE v. GRUBBE.
• Court: Oregon Supreme Court

38 P. 182

26 Or. 363

GRUBBE v. GRUBBE.

Supreme Court of Oregon

November 13, 1894

Appeal from circuit, Douglas county; J.C. Fullerton, Judge.

Action by Henrietta J. Grubbe against G.W. Grubbe, executor, under the will of E.T. Grubbe, deceased, to recover money paid to descent. Judgment for defendant, and plaintiff appeals. Reversed.

J.W. Hamilton, for appellant.

E.B Preble, for respondent.

MOORE J.

This is an action brought by the plaintiff against the executor of the last will and testament of E.T. Grubbe, her deceased husband, to recover money alleged to have been delivered by her to the testator under an agreement to repay it upon her request. The facts show that on September 8 1879, E.T. Grubbe was the owner of a tract of land in Douglas county, which he and the plaintiff on that day conveyed to one Joseph Haines, who, to secure a part of the purchase price, executed and delivered to the plaintiff a mortgage upon said property to secure the payment of $1,700, with interest thereon at the rate of 10 per cent. per annum from that date; that the plaintiff, having annually received the interest on the mortgage debt, and on November 3, 1886, the principal, delivered the amounts, when received, to her husband; that her said husband died testate March 12, 1892 and on the 15th day of the next month the defendant was, by order of the county court of said county, appointed executor of his last will and testament; that on August 1st, following, the plaintiff presented her claim against her husband's estate to the defendant, for allowance, but, it having been rejected by him, she, on November 12th of that year, commenced this action to recover $2,814.50, the amount so delivered to the testator, with interest at the legal rate from November 3, 1886. The defendant, after denying the material allegations of the complaint, alleged that the plaintiff, at the time said money is alleged to have been collected by her and delivered to E.T. Grubbe, was his wife, and that he, with her knowledge and consent, had expended the same in the necessary support of their family. The reply having put in issue the allegations contained in the answer, the cause was tried before the court and a jury, resulting in a verdict and judgment for the defendant, from which the plaintiff appeals, and assigns in the notice thereof the admission of evidence to which exceptions were duly taken, and the giving and refusal of certain instructions by the court, as the grounds upon which she relies for the reversal of such judgment.

The plaintiff, after she had proven the execution and delivery of the Haines mortgage, and the payment of the principal and interest thereof to her, testified that she delivered the moneys, when collected, to her husband, to invest for her, which he promised to do, and to repay the amount when she wanted it, but that no part of it had ever been paid. The defendant, over plaintiff's objection, and presumably to rebut her testimony, introduced in evidence a copy of said last will and testament, which, among other provisions, contained the following: "Secondly. I do will, bequeath, and devise unto my beloved wife, Henrietta J. Grubbe, the use, during her natural life, of all the real and personal property, which I may own, or of which I may die seised, for her support and maintenance; and I do hereby appoint and constitute George W. Grubbe, of Wilbur, Douglas county, state of Oregon, the trustee of said estate and property, to invest, rent, and manage said property, both real and personal, so that the increase thereof may furnish to my said wife, during her lifetime, comfortable support and maintenance; and I do hereby direct, empower, and authorize George W. Grubbe, in case said increase is insufficient for the said purpose, to use and apply moneys of said estate, of which I may die seised thereof, that which is necessary, and in case of necessity, after using the moneys, to sell the personal or real property which may be necessary to realize sufficient money to support and maintain my said wife during her life." The defendant also testified that the deceased left money, notes, and accounts amounting to not more than $2,900, and a lot, with three buildings thereon, of the value of about $1,000. Upon this evidence the court instructed the jury as follows: "The will of E.T. Grubbe has been introduced in evidence. By the provisions of this will, the property of the deceased is placed in trust for the use and benefit of the plaintiff, during her lifetime, and then the remainder, if any, is to go to his children named in the will. There is some evidence tending to show that the claim of plaintiff, upon which this action is brought, would consume the greater portion of the estate of E.T. Grubbe, and that if this claim is paid out of the estate there will be little, if anything, left. You have a right to consider all these facts and circumstances, in determining whether the money derived from the Haines mortgage was or was not the property of the plaintiff." The plaintiff duly excepted to this instruction, and now contends that the admission of the will in evidence, and the instruction based thereon, were manifest errors, while the defendant contends that the payment of the claim out of the estate would leave nothing upon which the will could operate, and that the making of the will was inconsistent with the relation of debtor and creditor between the deceased and plaintiff; that it tended to rebut her testimony, and hence was admissible in evidence,--and in support of this contention cites In re Hauer's Estate (Pa.Sup.) 21 A. 445, where the facts showed that a husband had, with the knowledge and consent of his wife, collected the rents accruing from her separate estate, and used the money thus received in the support of their family, and that he had purchased, in the name and for the benefit of his wife, a house and lot. It was there held that the facts relating to the purchase of the house and lot were properly admissible in evidence as showing a gift from him to her, and

that he did not regard himself as her debtor for the rents which would be presumed to be a gift from her. It was also held that a husband who receives a portion of the principal of his wife's separate estate becomes, in the absence of an agreement controlling his reception of it, her debtor for the amount so received, but that he was not, as a general rule, chargeable with interest upon it; that it lies upon him to show the agreement which releases him from the payment of the principal, and on her to show the agreement which entitles her to interest. Thus, a broad and plain distinction is drawn between the receipt by the husband of the income of his wife's separate property, and the receipt by him of the principal of her estate. The effect of this decision is that the presumption of a gift from the wife to the husband, of the rents of her separate estate, when used by him in the support of the family, may be corroborated by proof of a gift from him to her, as tending to show that the relation of debtor and creditor was never contemplated, and did not exist between them; but it is manifest that if the husband had appropriated the estate itself, instead of the income thereof, the evidence of the purchase of the house and lot would have been inadmissible for that purpose. In the case at bar the money received by E.T. Grubbe from the plaintiff was not only the profits from her separate estate, but included the estate itself, if it be conceded that she owned the Haines mortgage; and hence the rule announced in the case relied upon by the defendant, even if applicable in this case, would make the will admissible in evidence...