Stanton v. Foster

• Decision Date: 12 December 1899
• Citation: 80 N.W. 1084,122 Mich. 219
• Court: Michigan Supreme Court
• Parties: STANTON v. FOSTER.

80 N.W. 1084

122 Mich. 219

STANTON v. FOSTER.

Supreme Court of Michigan

December 12, 1899

Error to circuit court, Sanilac county; Watson Beach, Judge.

Replevin by Thomas J. Stanton, executor, against Josiah H. Foster. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Long J., dissenting.

C. F. Gates, for appellant.

H. O Babcock and E. C. Babcock, for appellee.

HOOKER J.

Robert H. Foster died November 24, 1894. Kaziah J. Johnson, who lived and cohabited with him for many years, died September 29, 1986, leaving a will appointing the plaintiff executor and he received letters testamentary on November 5, 1896. He took possession of the property in dispute (some horses and harrows) at once. They had been in testator's possession after the death of Robert H. Foster. On March 1, 1897, the defendant was appointed administrator of Robert H. Foster. Soon afterwards he replevied the property from one Freeman Johnson, the hired man of the plaintiff, who had it in his custody. The record does not show what disposition was made of that case, but subsequently this action of replevin was commenced. In his opening, counsel for the plaintiff stated that the defendant's father, Robert H. Foster, lived in Lamotte township, and Mrs. Johnson lived with him; that the harrows were purchased directly by her; that defendant's father made the bargain for the horses, but before it was completed Mrs. Johnson signed the note given for them, and afterwards paid it; that after Foster died the horses were in her possession until her death, and no one disputed her right to them, or made any claim to them until after she died. Testimony in support of this statement was introduced. The defendant introduced testimony tending to show that the property was owned by Robert H. Foster at the time of his death, and showed his death, and the appointment of the defendant as his administrator. At the commencement of the case the appellant offered to show that the marriage of Mrs Johnson and Robert H. Foster was illegal and void. This was objected to, but the testimony was admitted. The court ultimately held that it was insufficient to overcome the proofs of cohabitation as husband and wife. The defendant's inventory of the estate of Robert H. Foster was admitted against defendant's objections.

After instructing the jury that the plaintiff should recover if the jury should find that Mrs. Johnson was the owner of the property by reason of her alleged purchase the court said further: 'Now, there is another question. If you should find the property belonged to the husband, as a matter of fact, originally, before he died, the law gives the widow certain rights in the property of her husband when he died,--the personal property, the chattel property. It gives her first $250 worth of household furniture absolutely. It next gives her selection of $200 worth of the remaining property absolutely. And then she is entitled to some other allowances. Then, after these allowances are made and the selections made, after taking these out, if the whole estate remaining does not exceed $150, the law gives the rest of it to her,--the personal property. Now, whether the husband owned this property, or the wife owned it, in his lifetime, and died, and his personal property outside of the household furniture did not exceed $350 in value, then it belonged to the wife. If inventoried to his estate, it would go to the wife, and...