Steward v. Burt

• Decision Date: 04 June 1923
• Docket Number: 10635.
• Citation: Steward v. Burt, 216 P. 258, 73 Colo. 468 (Colo. 1923)
• Court: Colorado Supreme Court
• Parties: STEWARD v. BURT.

216 P. 258

73 Colo. 468

STEWARD v. BURT.

No. 10635.

Supreme Court of Colorado

June 4, 1923

Department 3.

Error to District Court, La Plata County; William N. Searcy, Judge.

Action by Eliza H. Burt, administratrix of the estate of Charles A Burt, deceased, against Rosa Steward. Judgment for plaintiff and defendant brings error and applies for supersedeas.

Supersedeas denied, and judgment affirmed.

Russell & Reese and Benjamin B. Russell, all of Durango, for plaintiff in error.

Perkins & Perkins and L. M. Perkins, all of Durango, for defendant in error.

SHEAFOR J.

The defendant in error brought suit against the plaintiff in error and recovered judgment for $500. The plaintiff in error brings the case here for review, and applies for a supersedeas. The parties will be designated here as in the court below.

The plaintiff claims that she is the widow and sole heir of Charles A. Burt, deceased, and sued as administratrix of the estate. Burt died January 7, 1922, and the plaintiff claims that about September 10, 1921, and up to the time of his death, he was the owner of four horses, valued at $300, a spring wagon, camp outfit, and saddle valued at $200; a watch and chain and two rings, valued at $150, and about $1,021.31 in money, then on deposit in banks; that defendant converted all of said property to her own use; that the deceased was so ill that he was not capable or competent to conduct his business affairs; that defendant exercised a wicked and malign influence over deceased, for the purpose of inducing him to give and transfer to her all of his property; that he was so ill in mind and body that he was not capable of exercising his own free will, and turned over to defendant under her coercion and undue influence, the money and property above mentioned.

The defendant admits that she came into possession of all of the personal property mentioned, but denied that she wrongfully converted the same to her own use, and denied that the personal property was of the value claimed by the plaintiff. Defendant claims that the personal property, aside from the money, was transferred to her by bill of sale, and checks were given her by the deceased for the money in the banks, and further claims that the deceased delivered the checks and the other personal property to defendant with the intent and for the purpose that the title thereto should vest in the defendant in case of the death of said Burt, and that the same constituted, and was intended to be, a gift causa mortis to the defendant of all the money, checks, and other personal property; that is, she was to have what was left after payment of all expenses.

Defendant has assigned numerous errors, but they may be summed up as follows: (1) That there was no sufficient evidence to support any verdict for plaintiff, and especially no evidence to support the verdict for $500 that was returned by the jury, and, further, that the verdict was not supported, either by the pleadings, the evidence, or the instructions. (2) That the plaintiff was an incompetent witness to testify in her own behalf, by reason of the fact that she sued as administratrix of the estate, and that the court erred in permitting her to testify.

The defendant cites a number of decisions of this court to support her first contention, among others Hassell Iron Works Co. v. Cohen, 36 Colo. 353, 85 P. 89, wherein the court said:

'There being no evidence upon which the

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