Okla. Nat. Bank of Cushing v. Keller

• Decision Date: 07 December 1926
• Docket Number: Case Number: 16493
• Citation: 124 Okla. 280,1926 OK 978,256 P. 34
• Parties: OKLAHOMA NAT. BANK of CUSHING et al. v. KELLER, Adm'r.
• Court: Oklahoma Supreme Court

1926 OK 978

256 P. 34

124 Okla. 280

OKLAHOMA NAT. BANK of CUSHING et al. v. KELLER, Adm'r.

Case Number: 16493

Supreme Court of Oklahoma

Decided: December 7, 1926

Syllabus

¶0 1. Executors and Administrators--Statutory Double Liability of Person Disposing of Property of Estate Before Grant of Letters. Where a person or corporation, before the granting of letters executory or of administration, sells or alienates any of the property of a decedent, he or it is liable in an action by the executor or administrator of the estate of such deceased for double the value of such property.

2. Appeal and Error--Review--Questions of Fact--Partnership Property.

The issue as to whether or not the property in controversy is partnership property is one of fact for the jury, and where such question is submitted to the jury under proper instruction, the verdict thereon will not be disturbed in this court, if it is supported by any competent evidence.

3. Witnesses--Incompetency to Testify to Transactions with Decedent Where Administrator is Party to Suit.

Where one of the parties to an action is the administrator of the estate of a deceased person, the adverse party may not testify in his own behalf as to any transaction or communication had personally with such deceased person, and where there are two adverse parties affected by the same transaction or communication, both are disqualified under the provisions of section 588, Comp. Stat. 1921.

Higgins & Berton and Wilcox & Swank, for plaintiff in error.

Blakeney & Ambrister, for defendant in error.

DICKSON, C.

¶1 The parties will be referred to as plaintiffs and defendants as they appeared in the trial court, inverse to the order in which they here appear.

¶2 On the 4th day of April, 1923, the plaintiff, as administrator of the estate of J. B. Thompson, deceased, commenced this action in the district court of Payne county against the defendants Oklahoma National Bank of Cushing, a corporation. Harry M. Foster, and H. L. Griffith, to recover damages under the provisions of section 1220, C. O. S. 1921.

¶3 The plaintiff alleged in his petition that he was the duly appointed administrator of the estate of J. B. Thompson, deceased; that said J. B. Thompson died on or about November 29, 1922; that after the death of the said J. B. Thompson, and before the appointment of the administrator of his estate, the defendants took into their possession certain property belonging to said estate, consisting of a number of automobiles and sold and alienated the same, and prayed damages in double the value of the property so sold and alienated.

¶4 The defendants answered separately, admitting that they took possession of the property described in the plaintiff's petition, and that they sold and conveyed the same prior to the appointment of an administrator of the estate of J. B. Thompson, deceased, but alleged, in effect, that said property did not belong to said estate but was in fact the property of a copartnership, consisting of J. B. Thompson and Dan R. Thompson; that the defendant bank held notes secured by mortgages on said property, and that while said notes and mortgages were executed by said J. B. Thompson individually, they were in fact the obligation of said partnership; that after the death of said J. B. Thompson, by an arrangement with the said Dan R. Thompson, said property was turned over to the defendant bank to be sold under the terms of said mortgages, and the proceeds thereof applied on said indebtedness. It is further alleged that the defendant Harry M. Foster was, at all of the times mentioned in the petition, the acting president of the defendant bank; that he took said property into his possession and sold and conveyed the same solely as agent for said bank, and that the proceeds of said sale had been credited upon said indebtedness. The plaintiff, by verified reply, put in issue all of the affirmative allegations contained in these separate answers.

¶5 On the trial, it being admitted that the defendants sold and conveyed the property described in the petition after the death of said J. B. Thompson and prior to the appointment of an administrator of his estate, the only question of fact for the determination of the jury was the question as to whether or not the property was partnership property. Section 1220, C. O. S. 1921. The evidence on this branch of the case was sharply conflicting. The jury returned a verdict for the plaintiff, and judgment was entered accordingly. The defendants have appealed to this court, and while there are a number of assignments of error, the only questions presented and argued here are: (1) That the verdict is contrary to the evidence; and (2) that the court committed reversible error in excluding certain evidence on the part of the defendant bank.

¶6 There was ample evidence to support the verdict. The notes and mortgages, under which this property was taken by the defendants, were executed by the deceased individually. The deceased carried a deposit in the defendant bank in his individual name, and while the witness Dan R. Thompson admitted that he executed a bill of sale on this property to the defendant bank, as surviving partner, he testified that he did so under the advice and direction of the defendant Harry M. Foster, president of...