Sylvain v. Page
| Decision Date | 29 March 1929 |
| Docket Number | 6414. |
| Citation | 276 P. 16,84 Mont. 424 |
| Parties | SYLVAIN et al. v. PAGE. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; George Bourquin Judge.
Action by Florida Sylvain, heir at law of John Page, deceased, and another, against Lulu Page. Judgment for plaintiffs, and defendant appeals. Reversed, with directions.
L. A Smith and John A. Poore, both of Butte, for appellant.
Joseph P. Vilk, N. A. Rotering, and H. K. Jones, all of Butte, for respondents.
This is an action brought by the administratrix of the estate of John Page, deceased, with whom joined Florida Sylvain, the daughter of Page, to cancel a deed and bill of sale executed by Page to defendant, then his wife, on April 30, 1920, and to have the defendant declared an involuntary trustee of the property covered by those instruments, as well as other personal property, and for an accounting.
The defendant seasonably requested findings in writing which the court refused to make. It made findings of its own to the effect that the deed and bill of sale were not delivered by Page to defendant, nor was any of the property therein mentioned delivered or transferred to defendant, but that at the time of his death decedent was not the owner of the household goods, furniture and fixtures in the family residence or the automobile referred to in the complaint; that defendant has possession of property belonging to the estate, of which she was and is an involuntary trustee; and that plaintiffs are entitled to an accounting as prayed for. Thereupon a decree was entered in favor of the plaintiffs, from which the defendant has appealed.
The determinative question is whether the evidence supports the court's findings. This will be discussed under three heads: (1) Touching the real estate; (2) the personal property covered by the bill of sale; (3) the personal property not covered by the bill of sale.
1. It is admitted that on April 30, 1920, John Page signed and acknowledged a deed conveying to Lulu Page, his wife, the defendant, certain town lots in Butte and Missoula. The consideration was $1 and love and affection. The real property included the home occupied by Page and his wife, which already stood in their joint names, and some apartments in Butte; and at the same time Page signed and acknowledged a bill of sale whereby he purported to grant, bargain, sell, and convey to the defendant "all household goods, furniture and fixtures, and furnishings of every kind and nature, also all jewelry and diamonds owned by me, together with all my interest in and to that certain Cole-Eight automobile and all parts and accessories thereunto belonging, and any and all other personal property of whatsoever nature or description owned by or belonging to me." For an understanding of what follows some explanations are necessary.
Florida Sylvain, plaintiff, is Page's daughter by his first wife. Defendant was Page's second wife. That between Mrs. Sylvain and her stepmother there was no love lost is apparent. Mrs. Sylvain had not lived with her father for a long time. She had been married 21 years at the time of the trial. The relations between Mrs. Sylvain and her father were cordial. He visited her at her home frequently, every week or so.
John Page and defendant were married in 1915. For the first six weeks they lived in Butte, and then moved to the brickyard of the Butte Sewer, Pipe & Tile Company, where Page was foreman. They lived there two years, after which they made their home in the city. Having little faith in banks, Page placed a hollow tile, with cover, in the ground in a corner of the warehouse which adjoins the office at the brickyard. The tile was covered with dirt, and barrels were placed in the corner where it was. In it Page, who was a frugal man, hid his savings, and defendant, so she testified, made use of it for a like purpose. As foreman, Page received $5 and $5.50 per day, depending upon the character of work. Page died on June 22, 1926, and was buried on the third day following.
Plaintiffs' case rests mainly upon admissions said to have been made by defendant to neighbor women. Four of these, none friendly with defendant at the time of the trial, testified for plaintiffs. Each related conversations said to have been carried on with defendant. According to these witnesses, within a few days after the funeral, defendant said that with her son and his wife she visited the brickyard on the night following the death of Page. There at midnight she and her son hunted for and found the cache. According to Mrs. Hudson, "she said she found papers, money, and jewelry." As to the amount of money defendant said, "I don't have to worry any more, or go without anything." "She said she got the diamond ring and watch and trinkets; about $1,500 worth of jewelry." "She said, 'I took the papers to my lawyer, and when he saw them, and saw they weren't recorded, he told me to have them recorded."' That she had to work fast at the brickyard, for if the Sylvains had got there first she would not have got a thing, and they would have thrown her out; that "she had put one over on them." This witness also testified that, some three years prior to Page's death, defendant came to witness' house with deeds; on that occasion defendant told of having broken open a cement vault in the Page home, from which she took Page's diamond ring, the papers and money; that when Page came home they had a fuss and a scuffle, in which he tried to get the ring, and during the scuffle defendant fell; she then threw the ring on the table and fled to the house of the witness. The deeds were not in an envelope, they were tied with a string or rubber band. The deeds were left with witness, who did not examine them. She tossed them onto a cushion, where they remained 24 or 48 hours. Later, witness testified, Mrs. Page said she gave everything back to Mr. Page and he gave her the money, $300.
Mrs. Cassman said defendant told her of the trip to the brickyard, where she got considerable money and jewelry; also papers. "She said, 'When I got the papers I found out they were not recorded; so we rushed up and had them recorded."' She said she "put one over on the Sylvains." This witness also testified that defendant told her of breaking the vault in the basement, from which she got the ring and $300.
A witness, Mrs. Lenk, who was about to leave the state, testified by deposition. She had rented a portion of the Page home during the latter part of August and lived there until early December. Witness said defendant told her of the trip to the brickyard, of the discovery of the cache, and of the deeds. "She took them down to a lawyer, and she said they had not been recorded, and she took them to the courthouse that very day at noon, and had them recorded." According to the witness, the defendant told her how the deeds came to be made. The circumstances were that on one evening, after defendant had been thinking over the matter all day, she compelled her husband to dress and to go with her to a lawyer's office. Witness testified: "I think she said about 7 o'clock at night, and she said, 'We made out the deeds,' and she said he kept it in his safe at home, and she broke open the safe and got them, and then he took them away from her and out to the brickyard;" that if she had not got to the brickyard there wouldn't have been anything left, but even if Page had changed the deeds, and made over the property to the Sylvains, she would have had $15,000 or $16,000 to live on, for she found the ring and watch and chain and $15,000 or $16,000 in the cache. The witness testified also that defendant said, when she was getting Page ready to go to the hospital, she said to him, "Papa, you are an awful sick man; if anything happens to you, where will I find things?" and he replied, "Si knows everything; you go to him." This witness was voluble, testified at great length, and exhibited a strong enmity against the defendant. She suspected the defendant of having taken some of witness' personal belongings. Mrs. Lenk iterated and reiterated that she never told anybody anything respecting the testimony she would give in the case; she never had any conversation with any one about the facts in the case. She volunteered as a witness for Mr. Vilk, but did not discuss the facts with him before taking the stand.
Mrs. McCoy, by deposition, testified that defendant stayed at her house the night of the funeral. Witness and defendant conversed about the trip to the brickyard. Witness asked defendant, "Well, did you get the ring?" Defendant said, "Yes, I got everything; but I sweat blood before we got it; I thought George would never find the place where Mr. Page had it hid." "I beat the Sylvains to it; I got there before they did." In the cache she found the ring and papers and everything. Witness saw the ring at one time; Mr. Page had it on. Defendant told her that it belonged to Mr. Page.
Ernest La Palm, who lived at the brickyard, told of defendant's coming there at midnight on the night of the day Page died, saying she wanted some papers of her husband's. She explained that she did not need his assistance, as she had "the permission and keys from Mr. Griffith to go in." Mr. Griffith, called Si, was the manager of the brickyard.
It was shown that insurance upon the buildings was carried in the name of John Page, except the home property, which was carried in the names of John Page and Lulu Page. At one time, after the execution of the deed, the defendant signed the name of John Page to an assessment blank, which contained a description of the real property. The testimony is voluminous; the foregoing is but an abstract of salient points.
The defendant, testifying in her own behalf, admitted that s...
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