Stevenson v. Valentine

• Decision Date: 17 September 1889
• Citation: Stevenson v. Valentine, 27 Neb. 338, 43 N.W. 107 (Neb. 1889)
• Parties: FANNIE C. STEVENSON, EXECUTOR, ETC., v. E. K. VALENTINE, ADMINISTRATOR, ETC
• Court: Nebraska Supreme Court

43 N.W. 107

27 Neb. 338

FANNIE C. STEVENSON, EXECUTOR, ETC., v. E. K. VALENTINE, ADMINISTRATOR, ETC

Supreme Court of Nebraska

September 17, 1889

ERROR to the district court for Cuming county. Tried below before POWERS, J.

AFFIRMED.

M McLaughlin, for plaintiff in error:

There is no proof that R. F. Stevenson acted with knowledge, and in this respect the case differs from Peckinbaugh v Quillin, 12 Neb. 586, and McCormick v Stevenson, 13 Id., 70. The witness Angeline Bromley is disqualified by sec. 329 of the Code. A degree of interest no greater has frequently been held sufficient to exclude. (Ransom v. Schmela, 13 Neb. 73: Wamsley v. Crook, 3 Id., 344; 1 Green. Ev., 386-430; McCartney v. Spencer, 26 Kas., 65; Heydrick's appeal, 1 A. 31; Smith v. James, 34 N.W. 309; Witthaus v. Schack, 11 N. E. Rep., 649; Conklin v. Snider, 9 Id., 880; Forgerson v. Smith, 3 Id., 869; Ivers v. Ivers, 61 Ia. 721.) The testimony of witness Fetter was inadmissible to prove value. (1 Sutherland on Damages, 795, 802.)

E. K. Valentine, for defendant in error:

One who meddles with personal property not his own, even by command of a principal, is liable for injury to third parties as if no command had been given. (Wright v. Eaton, 7 Wis. 595; Richardson v. Kimball, 28 Me. 463; Elmore v. Brooks, 6 Heisk. (Tenn.), 45; Ford v. Williams, 24 N.Y. 359; Burnap v. Marsh, 13 Ill. 535; Perminter v. Kelley, 18 Ala. 716; Gaines v. Briggs, 4 Eng. (Ark.), 46; Josseyln v. McAllister, 22 Mich. 300; Thorp v. Burling, 11 Johns., 285; Spraights v. Hawley, 39 N.Y. 441.) The remedy provided by sec. 185, ch. 23, Comp. Stats., is not exclusive. (Jahns v. Nolting, 29 Cal. 507; Cooley v. Brown, 30 Ia. 470.) One not an executor nor administrator, by meddling with the goods of decedent, or otherwise personating the executor, becomes an executor de son tort. (Schouler, Ex'rs. and Adm'rs., sec. 190; Herrick & Doxsee's Probate Law, 423-4; Foster v. Nowlin, 4 Mo., 18; Graves v, Poage, 17 Id., 91; Magner v. Ryan, 19 Id., 196; Blake v. Hawkins, 98 U.S. 315.) If R. F. Stevenson, in his lifetime, was liable as an executor de son tort. his estate is now liable. (Swift v. Martin, 2 West. Rep, (Mo.), 146.) A meddler with a decedent's goods is estopped to deny his executorship. (Hilliard on Torts, 329.) He must account to the legal representative for all property coming into his hands (Crispin v. Winkleman, 57 Ia. 523); has all the liabilities but none of the privileges of an administrator. (Johns v. Wooling, 29 Cal. 507.) The testimony of witness Bromley was competent and corroborated. Only a direct legal interest can exclude. (1 Green. Ev., sec. 389; Evans v. Eaton, 7 Wheat. [U.S.], 356.) Declarations of an intestate, against interest, are admissible in suit against his administrator. (Lide v. Lide, 32 Ala. 449; 1 Green. Ev., 147, 153, 171, 172, 189.)

OPINION

REESE, CH. J.

This is a proceeding in error to the district court of Cuming county.

It was alleged in the petition that defendant in error was the duly appointed and qualified administrator of the estate of B. M. Gay, late of Cuming county, deceased, and that said Gay, at the time of his death, was possessed of personal property of the value of $ 4,284.40, the property being described as one drug store of the value of $ 2,400; one horse, phaeton, and harness of the value of $ 130; one gun of the value of $ 35; cash on hand of the value of $ 1,156, and books of account of the value of $ 563.40; and that soon after the death of said Gay, one R. F. Stevenson obtained possession of said goods, chattels, money, and book accounts, and unlawfully converted the same to his own use, to the damage of plaintiff in the sum named; that afterwards, on the 9th day of March, 1885, the said R. F. Stevenson died testate, and by his will left plaintiff in error as his executrix, who duly qualified and entered upon the duties of said office; that the claims named in the petition had been duly filed in the county court of Cuming county against the estate of said Stevenson, and had been rejected by said court, from which plaintiff in error had duly appealed. There was a prayer for judgment for the sum of $ 4,265.91, and interest thereon from July 1, 1883.

The answer of plaintiff in error consisted of a general denial.

The cause was tried to the court without the intervention of a jury, and the trial resulted in the following findings and judgment:

"Now on this 25th day of January, 1888, this cause comes on for decision, the same having been heretofore tried, argued, and taken under advisement, and the court, after hearing all the evidence, and arguments of counsel, and being fully advised in the premises, finds upon the issue joined, and evidence as follows:

"First. That the said B. M. Gay died intestate in Cuming county, Nebraska, on or about the 20th day of June, 1883, leaving an estate therein consisting of real and personal property, and also left surviving him a widow and three children living in the state of Connecticut, who were entitled to said property as the heirs of said Gay.

"Second. That in about the month of July, 1883, the said R. F. Stevenson was the attorney for one Augustine Bromley, who claimed the property as her own, took possession of, sold and converted certain of the property of said estate of the value of $ 4,055.

"Third. That said Stevenson was an attorney at law, and the only relation he sustained to said property, was that of attorney for said Bromley, to whom he accounted for the same.

"Fourth. That the time he so acted for said Bromley, the said Stevenson was advised of the fact that said Gay left surviving him the widow and children as aforesaid, and that they were entitled to the property of said estate.

"Fifth. That the said Valentine is the duly appointed and acting administrator of the estate of said Gay, and that Fannie C. Stevenson is the executrix of the estate of said Stevenson.

"And as a conclusion of law, that the acts of said Stevenson in taking possession of, and selling said property, made him a wrong doer, and liable for the conversion of said property to the estate of Gay.

"And that the plaintiff is entitled to recover from defendant the sum of $ 4,055, together with interest from August, 1883, at the rate of seven per cent per annum.

"Whereupon defendant submitted a motion for a new trial herein, which was by the court overruled, to which ruling of the court defendant then and there duly excepted, and forty days given said defendant to prepare bill of exceptions.

"It is therefore considered, ordered, and adjudged that the plaintiff have and recover of the defendant the said sum of $ 5,316.53 damages so as aforesaid found due, to draw interest from this date. And plaintiff recover his costs, taxed at $ ."

A number of errors are assigned, which will be noticed in the order in which they are presented in the brief of plaintiff in error.

It is insisted that the evidence is insufficient to sustain the findings. This contention is in the main based upon the fact that the principal witness who testified to the material facts was the woman Bromley, with whom Gay unlawfully lived and cohabited for a number of years in West...