Miller v. First Nat. Bank of Linton

• Decision Date: 24 March 1932
• Docket Number: No. 6016.,6016.
• Citation: 62 N.D. 122,242 N.W. 124
• Parties: MILLER v. FIRST NAT. BANK OF LINTON.
• Court: North Dakota Supreme Court

62 N.D. 122

242 N.W. 124

MILLER

v.FIRST NAT. BANK OF LINTON.

No. 6016.

Supreme Court of North Dakota.

March 24, 1932.

Syllabus by the Court.

1. An order granting a new trial in a purely discretionary matter will not be reversed except for an abuse of discretion on the part of the trial judge.

2. The avails of a life insurance policy or contract payable by any mutual aid or benevolent society, when made payable to the personal representatives of a deceased, his heirs or estate, upon the death of the member of such society or of such insured, is not subject to the debts of the decedent except by special contract, but must be inventoried and distributed to the heirs or the heirs at law of such decedent.

3. The avails of such a life insurance policy or insurance contract are not assets of the estate of a decedent, and an action to recover such avails is not an action upon which judgment may be rendered or order entered for or against the executor or administrator of the estate of the deceased or heirs at law or next of kin, as such, and section 7871, Compiled Laws 1913, which provides that “in civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party,” does not apply.

Appeal from District Court, Logan County; Wm. H. Hutchinson, Judge.

Action by Fred H. Miller, as administrator of the estate of John Steiger, deceased, against the Northwest Life Insurance Company, wherein the First National Bank of Linton was substituted as defendant. Verdict in favor of the plaintiff. From an order granting defendant's motion for a new trial, plaintiff appeals.

Order affirmed.

BURR, J., dissenting in part.

A. B. Atkins, of Napoleon, for appellant.

Lynn & Lynn, of Linton, and Richardson, Thorp & Wattam, of Fargo, for respondent.

BURKE, J.

This is an appeal from an order granting a new trial.

The action was brought by Frederick H. Miller, administrator of the estate of John Steiger, deceased, against the Northwest Life Insurance Company on an insurance policy on the life of the said John Steiger. The insurance company, by its attorney, filed an affidavit admitting liability and alleging that the First National Bank of Linton, N. D., claimed to have an assignment of the policy and had made demand upon said company for the amount due upon said policy. The insurance company deposited the amount due upon said policy with the clerk of court, and the First National Bank of Linton was made defendant by substitution.

The only issue at the trial was the question as to whether there had been an assignment of the insurance policy to the defendant bank. There was offered and received in evidence an assignment of the policy, dated the 22d day of May, 1928. The witness, who identified the signature of John Steiger on the assignment, also identified, on cross-examination, the signature of John Steiger on a promissory note dated December 28, 1915, and his signature on a check dated October 26, 1917. The note and check were signed in German and the signature on the assignment was in English; the witness stating that Steiger sometimes signed his name in English and sometimes in German. The note was made thirteen years, and the check eleven years, before the assignment. This is the entire evidence upon the subject of the assignment, and, the jury finding for the plaintiff, the court granted a motion for a new trial.

The principal errors assigned on the motion are the insufficiency of the evidence to justify the verdict and errors of law in the admission of the testimony. The trial judge in his memorandum opinion states: “It appears to the court, from the record, that the jury, in order to reach the verdict which they did, must have absolutely ignored the evidence of the witness Lenhart, called as a witness for the defendant. The testimony of Lenhart, relative to the genuineness of the signature of the deceased, upon the assignment, is positive and direct. This evidence is not contradicted by any other witness. The witness, Lenhart, was unimpeached. Upon the whole record the court believes that this defendant should have a new trial.”

[1] An order granting a new trial on a discretionary ground will not be reversed, unless there is an abuse of discretion. Pengilly v. J. I. Case Threshing Machine Co., 11 N. D. 249, 91 N. W. 63;Malmstad v. McHenry Tel. Co., 29 N. D. 21, 149 N. W. 690;Martin v. Parkins, 55 N. D. 339, 213 N. W. 574;Ogren v. Crystal Springs School District, 52 N. D. 455, 203 N. W. 324.

[2][3] In the instant case we cannot say that there has been an abuse of discretion. The only evidence on the question of the signatures is the testimony of Mr. Lenhart. He recognized all three of the signatures as the signatures of John Steiger. He states that sometimes he signed his name in German and sometimes in English, and his testimony is all the testimony there is on the subject. The trial judge did not pass upon the questions of law, for the reason, he says, in another trial the case might be tried by another judge, but, since there must be another trial, we deem it necessary to pass upon one question of law, which is sure to come up in the next trial. In the alternative motion for judgment or for a new trial, the defendant specifies as error the sustaining of an objection to the testimony of J. D. Meier, on the ground and for the reason that the said witness was an agent of the defendant bank and was incompetent as a witness under subdivision 2 of section 7871, Compiled Laws 1913, which reads: “In civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party.”

It is the contention of the respondent that this section only applies to actions in which the estate has an interest, and that the estate of the deceased has no interest in the result of this action, as the proceeds of the policy are no part of the estate.

This statute was strictly construed by this court in the case of St. John v. Lofland, 5 N. D. 140, 64 N. W. 930, 931. The court said: “The extent to which this statute seals the lips of a party is with regard to ‘any transaction with or statement by the testator or intestate.’ The definite article ‘the’ makes it certain that the testator or intestate referred to is the one whose executor or administrator is the party to the suit”; in other words, the personal representative of the deceased. Referring to the entire statute upon the subject of which the above quotation is an exception, the court said: “‘The subject of the enactment is allowance of the parties to be witnesses in their behalf, and the object is to provide generally for their examination as witnesses, and, the specific exception to such examination the legislature having undertaken to provide, the courts cannot allow any that are not specified by the legislature.’ In fact, practically the whole drift of the adjudications is along the line of construction which we follow.” First Nat. Bank of Bottineau v. Warner, 17 N. D. 76, 114 N. W. 1085, 17 Ann. Cas. 213;Alexander v. Ransom, 16 S. D. 302, 92 N. W. 418;Hanson v. Fiesler, 49 S. D. 442, 207 N. W. 449.

The first question is, then, Is this an action by the administrator, as the personal representative of the deceased, John Steiger? Before letters of administration are issued to an administrator, he must, under section 8685, Compiled Laws 1913, give a bond to the state of North Dakota, conditioned for the faithful discharge of all duties of the trust imposed on him by law or by order of the court. The amount of this bond is regulated by the value of the estate.

Under section 8707, Compiled Laws 1913, the administrator is entitled to the possession of all the real and personal property of the decedent, except property that is exempt, which he must protect from waste, collect the rents and profits, and the debts and demands of every description due to the decedent or accruing to the estate.

Under section 8714, Compiled Laws 1913, he must, within thirty days after his appointment, make and return to the county court a true inventory and appraisement of all the real and personal property of the decedent which has come to his knowledge, including a list of bonds, mortgages, notes, book accounts, and other securities, and the property inventoried shall be classed under several heads as follows: (1) The real estate, with a statement showing what portion, if any, is occupied or claimed as a homestead; (2) all the personal property, money included, which is supposed to be exempt, distinguishing between such as is deemed absolutely exempt and other property; (3) all other property not above specified.

Under section 8715, Compiled Laws 1913, the inventory must be signed by the executor or administrator, who must take and subscribe thereon his oath before an officer authorized to administer oaths that the inventory contains a true statement of all the estate of decedent which has come to his knowledge and possession, and particularly of all money belonging to the decedent and of all just claims of the decedent against the affiant.

It appears clearly from these sections that all the property belonging to the estate, of every kind, nature, and description, must be inventoried, preserved, and accounted for in the county court of probate. If any property comes into the hands of the administrator, which is not the property of the estate, it is clear that it should not be inventoried as the property of the decedent, and it seems...