Meyer v. Doherty

• Decision Date: 05 November 1907
• Citation: 113 N.W. 671,133 Wis. 398
• Parties: MEYER v. DOHERTY.
• Court: Wisconsin Supreme Court

133 Wis. 398

113 N.W. 671

MEYER

v.DOHERTY.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Appeal from Circuit Court, La Crosse County; J. J. Fruit, Judge.

Action by Anna Meyer, special administratrix, etc., against William Doherty. From a judgment of nonsuit, plaintiff appeals. Reversed and remanded.

This is an action by the special administratrix of the estate of Mary Doherty, deceased. The complaint states that Mary Doherty died in La Crosse county on the 19th day of April, 1905, and that the plaintiff has been duly appointed administratrix of her estate; “that the defendant, William Doherty, had in his possession at the time of her death the sum of $8,000, as plaintiff is informed and believes, the property of the said Mary Doherty; that said William Doherty refuses to pay or deliver the same to this plaintiff, although often requested so to do, but retains same in his possession, and, as plaintiff is informed and believes, has converted the same to his own use, wherefore she asks judgment against this defendant for the sum of $8,000 and interest thereon from June 1, 1905, besides the costs of this action.” The defendant answered by a general denial, except as to the sum of $460; $260 of which he claims to have paid out for debts and for the funeral expenses of Mary Doherty. On the trial there was evidence tending to show that the deceased was in her eighty-eighth year at the time of her death; that for some time previous to her death she had lived with the defendant; that when she came to live with the defendant she had two bank books showing deposits of $3,607.40; that the defendant drew these deposits from the bank on four checks signed by the deceased by her mark; that she had an income of $25 per month; that she had deeded her house and farm to the defendant seven years before her death; that she left six children surviving her; and that the $460 described in the answer was found by the defendant in her trunk after her death. Questions were asked of the defendant tending to prove the character of his relationship to his mother, and that he claimed as owner all of the property his mother had owned. The court excluded evidence offered by the plaintiff tending to show, “that for three years previous to her * * * death, she (Mary Doherty) was absolutely senile and incapable of doing any business whatever; that she constantly mistook this defendant, William Doherty, for her deceased husband; that she called him husband, and sent for him and talked with him as her husband, who had been dead for 20 years; that she did not know the difference between her own children and her husband; that she did not know her own children and did not know their names; that she did not know that her son John was dead; and that she was an absolute inbecile and incompetent to do any kind of business.” The court also refused to allow evidence offered tending to show “that she lived alone; that no one visited her except this son William and his children, who visited her daily; and that * * * when (plaintiff, who is a daughter of the deceased) visited her mother (she) was not known by her mother the last three years of her life.” On a motion that the action be dismissed because the evidence did not sustain any cause of action, the court in substance stated that under the facts adduced and the proposed offer the proper action to bring was an equitable one. This is an appeal from the judgment granting a nonsuit.C. L. Hood, for appellant.

Geo. W. Bunge, for respondent.

SIEBECKER, J. (after stating the facts as above).

The complaint charges the defendant with having converted a sum of money, the property of Mary Doherty, to his own use. Defendant admits having received $460 of her money after her decease, states that he has disbursed all but $200 of this amount in payment of her debts, funeral expenses, and for the erection of a suitable monument for her, and he denies that at the time of her death or thereafter he had in his possession any of her property except this sum. There is evidence tending to show that the deceased in her lifetime had deposits of about $3,600 in a bank, and that the defendant drew these deposits from the bank on four checks signed by the deceased. Upon the trial plaintiff sought to introduce evidence of decedent's mental capacity at the time of the execution and delivery of these checks. An objection to the reception of this evidence was interposed by respondent, and plaintiff then made an offer to show by evidence that the decedent at the time the checks were given was so weak mentally as to wholly incapacitate her from transacting any business, and that the respondent had obtained these checks and the proceeds thereof fraudulently and had converted them to his own use.

It is asserted that the complaint is one charging conversion of the money after the death of Mary Doherty. It alleges that the defendant had decedent's money in his possession at the time of her death, and that he retains the same in his possession and has converted it to his...