Stewart v. Glenn

• Decision Date: 31 October 1874
• Citation: 58 Mo. 481
• Parties: AUSBIN STEWART, Appellant, v. JAMES M. GLENN, ADM'R OF THOMAS GLENN, DEC'D, Respondent.
• Court: Missouri Supreme Court

58 Mo. 481

AUSBIN STEWART, Appellant,

v.JAMES M. GLENN, ADM'R OF THOMAS GLENN, DEC'D, Respondent.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Montgomery Circuit Court.

W. L. Gatewood, for Appellant.

I. The court below erred in refusing to allow plaintiff to amend his affidavit, after appeal to Circuit Court, changing the affidavit in amount only and not in form; (Wagn. Stat., p. 1034, §§ 3, 4 and 5; Martin vs. Martin, 27 Mo., 227;) 2nd. in admitting the defendant to testify as to settlements made with his father, and payments made to him previous to his death; (Wagn. Stat., p. 1372, § 1; Stanton vs. Ryan, 41 Mo., 510;) 3rd. in admitting the declaration of deceased as to what disposition should be made of the notes. (Howell's Adm'r vs. Howell & Co., 37 Mo., 124; Perry's Adm'r vs. Roberts, 17 Mo., 31, 40; Gibson vs. Gibson, 24 Mo., 227; Cawthorn vs. Haynes, 24 Mo., 236.)

Carkener, Powell & Hughes, for Respondent.

I. The declarations of Thomas Glenn, deceased, against his interest, and tending to show that the notes were paid off, were admissible, while those tending to show the contrary were not. A man's statements against his interest are always admissible, but he cannot manufacture evidence in his own favor. The distinction is as old as the law. (Hart vs. Hart, 41 Mo., 441; Wynn vs. Cory, 48 Mo., 346.)

II. James Glenn was a competent witness. The issue was one of embezzlement. The charge is made by a party living against one who is living. (Tingley vs. Cowgill, 48 Mo., 291; Looker vs. Davis, 47 Mo., 140; Fugate vs. Pierce, 49 Mo., 441; Manufacturer's Bank vs. Schofield, 39 Vt., 590.)

III. This is a statutory remedy for the recovery of specific personal property, and it devolves on the plaintiff to prove that it was in the possession of the defendant, or under his control. (Dameron vs. Dameron, 19 Mo., 317; Powers vs. Blakey, Adm'r, 16 Mo., 437; Howell's Adm'r vs. Howell, 37 Mo., 124.)

VORIES, Judge, delivered the opinion of the court.

This proceeding was commenced in the Probate Court in Montgomery county, against the defendant, who was the administrator of the estate of Thomas Glenn, deceased, charging him with embezzling, concealing and failing to inventory certain notes held by the deceased at the time of his death, against said defendant, and which formed a part of the assets of said estate.

A judgment was rendered in favor of the defendant in the Probate Court, from which the complainant, who it is admitted is interested in the estate, appealed to the Montgomery Circuit Court.

A trial was had in the Circuit Court before a jury. The jury found for the defendant, and judgment was again rendered in his favor. The complainant filed a motion for a new trial, which being overruled he appealed to this court.

On the appearance of the parties in the Circuit Court, the complainant asked leave of the court to file an amended affidavit to more particularly describe the notes named in the original affidavit, and also to include other notes not before named, and which had been ascertained since the trial in the Probate Court. The court permitted the amendment, so as to give a more particular description of the notes named in the original statement and affidavit, but refused to permit the complainant to amend his complaint so as to include any additional notes not before named: to which refusal of the court the complainant excepted.

The sworn statement or affidavit, upon which the trial was had, charged that the defendant, as administrator of Thomas Glenn, deceased, had concealed or embezzled, or had in his possession and under his control, and had failed to inventory or account for, certain notes belonging to said estate, to-wit: one note for $260, given by defendant to deceased, dated in the year 1864, and one note for $140, dated, etc., given by defendant to said deceased, with interest, etc.; that said defendant, as administrator of Thomas Glenn, deceased, had failed and refused to account to the Probate Court of Montgomery county for the same, and now has them in his possession, or under his control, and fails to inventory the same.

The complaint or affidavit was denied by the defendant.

The evidence on the part of the plaintiff tended to prove the facts stated in the affidavit, and the evidence on the part of the defendant tended to prove that the notes named in the affidavit had never come into the hands of the defendant as administrator of said estate; and that he knew nothing of them since the death of the deceased. It is not disputed that the deceased just before his death, held such notes on the defendant, but defendant testifies that the amount of the notes had been paid except as to a balance of $260, and insists that his father had intended to cancel said notes, and not to exact the payment of the balance due thereon, and that no such notes were found after the death of deceased; but as to the intention of deceased to cancel or destroy the notes, the evidence is conflicting. It is shown that the deceased lived at the house of defendant, and his papers were there only a few days before his death, including these notes.

There were several exceptions taken to the admission and exclusion of evidence on the trial, which are not deemed to be material to the investigation of this case. We will therefore only notice those objections to evidence which go to the merits of the case.

The plaintiff proved by a witness, that he had seen the notes described in the affidavit in the possession of the deceased, a short time before his death. The defendant in the cross-examination of said witness, asked the witness as follows: “What did the old man say about James paying the notes?” The plaintiff objected to this evidence for the reason that the statements of deceased as to the payment of the notes, or as to his intention to collect the same, were not competent or material evidence. This objection was overruled, and the plaintiff excepted. The witness stated that deceased had said that he held the notes against James, but that he did not intend that James should pay the notes, as he had been taken care of by James and his wife, etc.

The defendant was offered as a witness on his own behalf. The plaintiff objected to his testimony on the ground that he was not competent to testify against the deceased, or in this case. The court overruled the objection and the defendant was permitted to testify in the cause, to which the plaintiff excepted.

After the defendant had proved that the deceased in his life-time had stated that he did not intend to collect the notes from defendant, the plaintiff offered to prove statements of the deceased, made at other times, in which he had expressed a different intention. This evidence was objected to and rejected by the court and the plaintiff excepted.

At the close of the evidence, the court gave the jury several instructions to which no objections were made; but refused to give the jury the following instruction: “The jury are instructed that if they believe from the evidence in this case, that the defendant James M. Glenn is and has been the only administrator on the estate of said Thomas Glenn deceased, and that said Thomas died intestate and the holder and owner of the notes or either of them described in plaintiff's affidavit herein filed; and that said James M. Glenn made and executed said notes or either of them, and knew or had just cause to believe that said Thomas Glenn died the holder and owner of the same, and further find that the said James M. Glenn, as administrator, did not nor has caused the same to be inventoried as the other property or indebtedness of said estate, then your verdict should be for the plaintiff, although you may further believe from the evidence, that said notes, after the death of said Thomas, did not come into the actual possession of said defendant.” To the refusal of the court to give this last instruction the plaintiff excepted.

The court then, at the instance of the defendant, and notwithstanding the objections of the plaintiff, gave the jury the following instruction: “The jury are instructed that this is a proceeding under the administration law, denominated Embezzlement, and instituted upon the affidavit of Stewart for the recovery of certain specific personal property, viz: Two notes alleged to belong to the estate of Thomas Glenn, deceased, and to be in the possession of the defendant James Glenn; and in order to maintain this proceeding, the property alleged to have been embezzled, must have been in existence in kind and in the actual possession of the defendant at the time of the filing of the affidavit on the 5th day of August, 1872, or since deceased's death, and unless the jury believe from the evidence, that the notes specified were in existence in kind, and were in the actual possession of the defendant at said date, they must find the defendant not guilty.”

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