Norris v. Bradshaw

• Decision Date: 19 December 1932
• Docket Number: 12710.
• Citation: 18 P.2d 467,92 Colo. 34
• Parties: NORRIS v. BRADSHAW.
• Court: Colorado Supreme Court

18 P.2d 467

92 Colo. 34

NORRIS v. BRADSHAW.

No. 12710.

Supreme Court of Colorado, En Banc.

December 19, 1932

Rehearing Denied Jan. 7, 1933.

Error to District Court, Delta County; George W. Bruce, Judge.

Suit by Hattie A. Norris, administratrix of the estate of William Norris, against W. Ray Bradshaw. To review the judgment in favor of defendant, plaintiff brings error.

Reversed and remanded.

Adair J. Hotchkiss, of Grand Junction, and Fairlamb & Fairlamb, of Delta, for plaintiff in error.

A. A Clements, of Paonia, and C. H. Stewart, of Delta, for defendant in error.

BUTLER J.

Hattie A. Norris was administratrix of the estate of her husband William Norris. She sued W. Ray Bradshaw to set aside a gift by William Norris to him of $3,240, evidenced by a duplicate bank deposit slip indorsed by Norris and delivered to him. To obtain a reversal of the judgment dismissing her suit, she prosecutes this writ.

The complaint left it somewhat uncertain whether the plaintiff sued personally or as administratrix, but her counsel stated in open court, and the trial court properly held, that the plaintiff sued as administratrix, and that any judgment in her favor would be for the benefit of the estate.

The plaintiff's contention in this court is that the gift was made for the purpose of preventing Mrs. Norris from receiving her inheritance as widow, and of defeating any claim for widow's allowance that might be allowed her. In the estate proceedings, the county court adjudged her entitled to a widow's allowance of $2,000. Without the property in controversy, the assets of the estate would be wholly insufficient to pay the widow's allowance. There is also involved in this suit a claim to a cheap 'shack' built by William Norris upon land owned by the defendant, but in view of the result at which we have arrived, it will not be necessary to discuss that claim.

William Norris was a resident of Paonia. His only child was Lucile Bradshaw, the wife of the defendant. They, also, resided in Paonia. For four years after Norris' first wife (Lucile's mother) died, Lucile kept house for her father and after her marriage in 1914, he lived with her and her husband until November 8, 1921, when Norris married the plaintiff. At that time he was about sixty years of age, and she also was aged. They lived in the plaintiff's house in Paonia until August 20, 1926, when they moved to her house in Grand Junction. Three days later Norris returned to the home of his daughter and her husband in Paonia, where he continued to reside until October 26, 1927, the date of his death. On August 9, 1926, William Norris made the gift in question.

In the complaint, it is alleged, not only that the gift was made for the purpose stated above, but also that the money was to be held by the defendant for safe-keeping, for the use and benefit of Norris during his life-time, and to become the defendant's property only upon the death of Norris; and also that it was procured by the defendant by undue influence, and by making false statements to Norris. In his answer, the defendant denies those allegations, and avers that the gift was made to him and his wife as their own property, because of their many kindnesses to Norris.

1. It is contended by the defendant that the plaintiff, as administratrix, had no right to sue. We think otherwise. Section 5262, Compiled Laws, confers the power upon, and makes it the duty of, executors to sue for the estate, both real and personal, of their testators; and provides that all such personal property 'shall be assets in the hands of the executor * * * for the payment of * * * widow's * * * allowance and expenses of administration.' See Grover v. Clover, 69 Colo. 72, 169 P. 578.

2. The evidence tended to show that the relations between the plaintiff and her husband were somewhat strained, and that just a few days Before their final separation, he gave to his daughter and his son-in-law $3,240, which was practically all of his property, and that he kept the transaction a secret from his wife. The plaintiff testified that in her conversation with the defendant and his wife, after the death of Norris, the defendant stated that Norris had given the money to him because Norris thought that the plaintiff was going to compel him to invest the money in her apartment house, and also because he thought that she might be going to start divorce proceedings. As the transaction was between Norris and his daughter and son-in-law, the burden of proving the honesty and good faith of the transaction rested upon the defendant. Roberts v. Dietz, 88 Colo. 594, 298 P. 4062; Roberts v. Dietz, 86 Colo. 595, 284 P. 337.

3. The defendant was sworn as a witness in his own behalf, whereupon counsel for the plaintiff made the follwoing objection: 'We at this time, as required by the statute, object to any testimony being given by Mr. Bradshaw in regard to any transactions with William Norris, on account of the fact that he is the defendant in an action brought by the administratrix of the estate to recover estate property--excepting, however, that as provided in the exception first--transactions occurring after the death of the deceased. We do not object to Mr. Bradshaw going into such matters as Mrs. Norris has gone into in relation to facts that occurred after the death of the deceased.' The objection was overruled, and the defendant gave the following testimony concerning the transaction of August 9, 1926: 'Norris said: 'Ray and Lucile, I have just collected the money from the Wilcox loan. I am going to give it to you folks, $3,240.00.' He says 'I want you folks to have it.' He says, 'I have always had a home with you folks when I didn't have a home any place else, and it looks like I will have to make my home with you folks later on; and this is the money I have, and I want you folks to have it.' And I says to him, 'You better keep that money, Dad--you just as well keep it.' 'No,' he says, 'I am going to give it to you folks--I am going to give it to your right now, and I will know that you have got it.' So he had his certificate of deposit--took it out of his pocket put it up against the fence post and endorsed it, and says, 'Take that to the bank and get it put in your name.' And after dinner I went down to the bank and had it transferred--* * * deposited it in my name.' That conversation was said to have been held in the presence of Mrs. Bradshaw.

Mrs. Bradshaw was sworn as a witness in behalf of the defendant, whereupon counsel for the plaintiff made the same objection to her testifying that they made when her husband took the witness stand. The ojbection being overruled, she gave substantially the same testimony concerning the transaction that her husband gave.

(a) Counsel for the defendant say that the plaintiff cannot successfully urge her objection to those rulings of the trial court because, under the rule announced in Milsap v. Stone, 2 Colo. 137, her objection in that court came too late. In that case no objection was made until after the witness was sworn, and it was held that there was a waiver because the objection was not made in apt time. In Gilmour v. Hawley Merchandise Co., 21 Colo.App. 307, 310, 121 P. 765, 766, the court said: 'Starkie on Evidence is also cited in the Milsap Case. In volume 1, p. 136 (Ed. 1842) note 'u,' we find the following: 'The ancient doctrine on this head was so strict that if a witness were once examined in...