Gunder v. Huggans

• Citation: 71 Mont. 449
• Decision Date: 13 February 1925
• Docket Number: No. 5537.,5537.
• Parties: GUNDER v. HUGGANS.
• Court: Montana Supreme Court

71 Mont. 449

GUNDER

v.HUGGANS.

No. 5537.

Supreme Court of Montana.

Nov. 8, 1924.

On Rehearing, Feb. 13, 1925.

Appeal from District Court, Ravalli County; James M. Self, Judge.

Action by Lina E. Gunder, formerly Lina E. Huggans, against Richard E. Huggans. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Harry H. Parsons, of Missoula, for appellant.

Baggs & Kurtz, of Hamilton, for respondent.

STARK, J.

Plaintiff brought this action to recover the sum of $4,000 and interest, alleged to be due her from the defendant.

The complaint alleges that the parties are sister and brother, the only children of Richard M. and Eunice Huggans; that the father, Richard M. Huggans, died intestate in the state of Illinois on July 9, 1902, leaving an estate consisting of both real and personal property; that under the laws of the state of Illinois the plaintiff and defendant, with their mother, were entitled to all of said estate, and that, upon the death of the mother, the plaintiff and defendant became entitled to the whole of said property and the increase and accumulations made thereto by their joint efforts; that after the death of the father the plaintiff, defendant and their mother lived upon, took care of, managed and used said property without any division thereof; and that after the mother's death the plaintiff and defendant, and the defendant's family, continued to live upon and use the property in the same manner down to January 28, 1919, when all of the property, both real and personal, was sold by defendant for the sum of $40,000; that plaintiff was entitled to one-half thereof, but that defendant had paid to her only the sum of $16,000, and had refused, after demand, to pay her the balance of $4,000, and prays judgment for this amount.

The defendant's answer admits the relationship of the parties, the death of the father and mother as alleged in the complaint, and avers that after the mother's death “the parties hereto owned the land mentioned in the complaint as tenants in common and in equal shares”; that the real estate was sold by the parties and the full price therefor paid to the defendant, and that he had paid the plaintiff one-half thereof. Further answering the complaint the defendant alleges “that he paid the plaintiff one-half of the purchase price of the property sold by him; that the plaintiff herein has been fully paid for any and all moneys, sums or property coming to her by reason of her being the daughter of the said Richard M. Huggans and Eunice Huggans and a sister of the defendant, and that the defendant herein does not owe the plaintiff any sum whatsoever or at all.” The answer further alleges that after the death of the father, the defendant was appointed as administrator of his personal estate, qualified and acted as such; that thereafter said estate was duly administered and a judgment duly given and made discharging him as such.

The affirmative allegations of the answer were denied by a reply. The cause was tried on December 18, 1923, and resulted in a verdict and judgment in favor of the plaintiff for the sum of $5,564.45 and costs. From this judgment the defendant has appealed, and by a bill of exceptions brings up all the proceedings had at the time.

So far as material to a determination of this appeal, the undisputed facts developed at the trial are as follows:

The father of plaintiff and defendant died intestate in the state of Illinois in 1902, leaving a farm with a small amount of personal property; the defendant was appointed administrator of the personal estate of the deceased, administered the same, distributed the property and was duly discharged from his trust. At the time of the father's death, the parties were living in Sterling, Ill., and about the year 1905 moved upon the farm with their mother, and resided there continuously down to the year 1919, with the exception of three years from 1907 to 1910, when they all lived together in Colorado. Until the time of her death in 1911, the mother lived with the parties during the periods of their residence upon the farm. The farm operations were carried on by the defendant. He planted, harvested, and sold crops from year to year, bought and sold live stock and attended to the business generally. The proceeds arising from these transactions were put back into the business and used in the farming operations. Both plaintiff and defendant worked upon and about the farm, and there was never any agreement between them touching the matter of compensation which either was to receive, but each received support therefrom. Prior to the father's death he had given the plaintiff and defendant a house and lot in the town of Sterling. This piece of property was sold by them for the sum of $2,650 and the proceeds therefrom put into the farming operations. At some time after 1910, the date of which is not disclosed in the testimony, the defendant, out of his own funds, derived from sources independent of the farming operations, contributed to the business of the farm between six and seven thousand dollars. There was never any settlement or accounting between the parties, and plaintiff never asked for one until the summer of 1919.

In 1918 the parties decided to sell the property in Illinois and remove to Montana, and to carry out this plan, in July, 1918, contracted to sell the farm for $32,000, which deal was consummated by payment of the money on March 1, 1919, the plaintiff receiving one-half of that amount, or $16,000. On January 28, 1919, a public sale of some personal property on the farm was held and netted $4,200. Prior thereto, in the fall of 1918, there had been sold from the farm 736 bushels of oats, 1,426 bushels of barley, and 23 hogs, all of which brought the sum of $3,075.37. Some time before this a $1,000 Liberty Bond had been bought. In 1919 the parties removed from Illinois to Montana and have resided here since that time. When the defendant came to Montana he brought with him from the farm certain personal property, which need not be considered here since the plaintiff does not in this action claim any interest therein.

Plaintiff testified that it was always her understanding that if there were any profits from these farming operations they were to be equally shared between the parties, and that if there were any losses they were to be equally borne, although there had never been any agreement to that effect. With the foregoing facts in the record, both plaintiff and defendant rested, and thereupon defendant moved the court to direct the jury to return a verdict in his favor and against the plaintiff upon the grounds, among others, that the...