Winson v. Young

• Decision Date: 16 December 1892
• Citation: 52 Minn. 1,53 N.W. 1015
• Parties: WINSTON v YOUNG.
• Court: Minnesota Supreme Court

52 Minn. 1

53 N.W. 1015

WINSTONvYOUNG.

Supreme Court of Minnesota.

Dec. 16, 1892.

(Syllabus by the Court.)

1. The payment of money, at the request of an executor, to relieve the estate from an incumbrance, does not create a debt allowable and payable as such out of the estate.

2. Therefore, a representation by the executor, made to induce the person to so pay money, that the estate is solvent and able to pay all its debts, is, in an action by such person against the executor for deceit in making such representation, immaterial.

Appeal from district court, Hennepin county; CANTY, Judge.

Action of deceit by Mary E. Winston against Winthrop Young. Plaintiff paid out certain moneys for the benefit of the estate of her father, J. A. Lovejoy, on the representation of defendant, the executor, that the estate was solvent and would repay the same. The estate proving insolvent, plaintiff brought this action to recover the money so paid. On the trial before the court and a jury, the action was dismissed, on motion of defendant, after the close of plaintiff's evidence. From an order denying a new trial, plaintiff appeals. Affirmed.

George H. White and Alvord C. Egelston, for appellant.

Howell W. Young and Akers & Lancaster, for respondent.

GILFILLAN, C. J.

A previous action between these parties, upon substantially the same cause of action, came here on appeal, and is decided in 47 Minn. 80,49 N. W. Rep. 521. On that appeal the only question presented and passed on was whether a representation by defendant, an executor of the will of Lovejoy, that the estate was solvent and would have money enough to repay what plaintiff should pay on its account, was, for the purpose of an action for deceit, a representation of fact, or only the expression of an opinion, and we held it the former. The question of the materiality of the representation of fact although it might have been made in that case, was not made, and consequently was not passed upon. The evidence in this case was to the effect that defendant said to plaintiff that he was executor of the estate, and knew it would have plenty of money to pay all the debts, and that it would be all right, and if she would pay the money he would repay it to her, and that, if she paid the money, as soon as there was any money in the estate, it would be sufficient to pay all the debts and hers. These conversations contain representations of fact, to wit, that the estate was able to pay all its debts. So far...