Hagar v. Norton

• Decision Date: 02 May 1905
• Citation: 188 Mass. 47,73 N.E. 1073
• Parties: HAGAR v. NORTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 47

73 N.E. 1073

HAGAR v. NORTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 2, 1905

COUNSEL

Ralph E. Joslin, for plaintiff.

H. L Boutwell, for defendant.

OPINION

LATHROP, J.

This is an action brought by the administrator of the estate of Winnifred E. Hagar, who was also her husband, against the sister of the intestate, who was her next of kin. The writ is dated November 1, 1900, and is in contract or tort. The declaration contains two counts, both alleged to be for the same cause of action. The first count alleges, in substance that the plaintiff is the administrator of the estate of Winnifred E. Hagar, who died September 20, 1900; that prior thereto the intestate had for a long time suffered from an incurable malady, which weakened her mentally and physically; that on or about September 12, 1900, the intestate had become so weakened physically and mentally that she was not able to care for herself in any way physically, and was incompetent to know and understand ordinary matters of business, her own property, or the details of the daily life about her; that on or about said September 12th, and while the intestate was in the condition above described, the defendant, well knowing and understanding the intestate's physical and mental condition, by means of fraud and undue influence practiced upon the intestate, obtained from her certain books of deposit in savings banks in this commonwealth, and also a certificate of 10 shares of the common stock of the American Sugar Refining Company; and at the same time the defendant obtained from the intestate, by the use of fraud and undue influence practiced upon the intestate, her signature to an assignment of each of the savings bank books and of the certificate of stock, although the intestate at the time of the transfer did not known and intend, and was not capable of knowing and intending, to do what she then did, and thereupon the defendant converted to her own use the books of deposit, and the certificate of 10 shares of stock. The declaration further alleged a demand by the plaintiff upon the defendant to deliver the books of deposit and the certificate of stock, and a refusal by her to comply with the demand. The second count was for money received by the defendant to the plaintiff's use. The answer contained a general denial, and alleged payment.

After a verdict for the plaintiff, the case comes before us on the defendant's exceptions to the refusal of the presiding judge to give certain requests for instructions, and to the admission of certain evidence. The bill of exceptions recites that the court gave full and complete instructions concerning the different phases of the case, to which no exception was taken.

It is unnecessary to state in detail the evidence, which is set forth at some length in the bill of exceptions. It is enough to say that the evidence put in by the plaintiff sustained the allegations contained in the first count, while that introduced by the defendant tended to show the contrary. We shall refer to some of it hereafter.

We proceed to consider the requests for instructions which were made at the close of the trial, and were as follows: '(1) That upon all the evidence the plaintiff is not entitled to recover upon the first count of his declaration. (2) That upon all the evidence the plaintiff is not entitled to recover upon the second count of his declaration. (3) That in any event the plaintiff is not entitled to recover anything on account of the sugar stock described in his declaration under the second count.' The judge refused these requests, and ruled that upon the evidence the jury would be justified in finding a verdict for the plaintiff both as to the savings bank deposits and the 10 shares of stock.

The argument of the counsel for the defendant on the first request is that there was a gift to the defendant from the intestate of the deposit books and the certificate of stock; that this gift was voidable, and not void; and that, as the deposit books had been converted into money, and the certificate of stock had been delivered up to the corporation which issued it, and a new certificate taken out, before the administrator was appointed, he cannot now maintain the action for the original conversion. The basis of the argument is that there was a gift to the defendant. The short answer to this is that the evidence that there was a gift comes from the defendant, and the jury were not bound to believe her or her witnesses. The plaintiff's case proceeds upon the theory that Winnifred E. Hagar was so weakened mentally that she did not know or understand what she was doing when she signed the assignment of the savings bankbooks and of the shares of stock. If the right to bring an action vested in the intestate before her death, it passed on her death to her administrator. The appointment of the administrator related back to the death of the intestate. Wonson v. Sayward, 13 Pick. 402, 404, 23 Am. Dec. 691; Lawrence v. Wright, 23 Pick. 128; Pritchard v. Norwood, 155 Mass. 539, 30 N.E. 80. The plaintiff, therefore, was entitled to maintain an action for the original conversion.

The second request for instructions is too broad. The defendant had drawn out the deposits in the savings bank, and held them as cash. For this cash, at least, an action for money had and received would lie.

We are of opinion, however, that the third request for instructions should have been given. The plaintiff's intestate had signed her name to the usual assignment on the back of the certificate of stock. It did not appear whether the assignment contained the name of the defendant, or whether the assignment was in bank. The defendant caused the certificate to be transferred on the books of the American Sugar Refining Company to her own name before the death of the plaintiff's intestate, and so held the stock at the time of the bringing of this action. While this would amount to a conversion of the property, if the testimony in behalf of the plaintiff was believed, it would not be a conversion into money, for which an action for money had and received would lie. Jones v. Hoar, 5 Pick. 285; Allen v. Ford, 19 Pick. 217; Brown v. Holbrook, 4 Gray, 102; Le Breton v. Peirce, 2 Allen, 8; Berkshire Glass Co. v. Wolcott, 2 Allen, 227; Ladd v. Rogers, 11 Allen, 209; Bartlett v. Tucker, 104 Mass. 336, 345, 6 Am. Rep. 240; Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721.

The plaintiff contends, in support of the proposition that the judge was right in his refusal to give the third request that from the testimony of the defendant it appeared that the intestate told her she was to have $2,000, and Jonas, the plaintiff, the rest, and that she had paid back all but $1,000 of the money received. But this did not make the sugar stock money in...