Zimmerman v. Beatson

• Decision Date: 13 December 1906
• Docket Number: No. 5,722.,5,722.
• Citation: 79 N.E. 518,39 Ind.App. 664
• Parties: ZIMMERMAN v. BEATSON et al.
• Court: Indiana Appellate Court

39 Ind.App. 664

79 N.E. 518

ZIMMERMAN

v.BEATSON et al.

No. 5,722.¹

Appellate Court of Indiana, Division No. 2.

Dec. 13, 1906.

Appeal from Circuit Court, Hancock County; Edward W. Felt, Judge.

Action by Rudolph V. Zimmerman, administrator, against Joseph Beatson and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

F. A. Walker, F. P. Foster, A. C. Carver, Mason & Jackson, and Forkner & Forkner, for appellant. William Ward Cook and A. H. Jones, for appellees.

ROBY, J.

Appellees Beatson and Beatson, and Mary Bowers, who departed life May 25, 1900, are charged in appellant's complaint with having converted to their own use personal property consisting of coin and bills, amounting to $40,000, which is averred to have belonged to David Bowers at the time of his decease, which was May 6, 1898. David Bowers left surviving, his widow, Mary, who was a third wife and five children, of whom Elizabeth J. Beatson is one, her co-appellee being her husband. The Beatsons lived with Mr. and Mrs. Bowers, and the claim is that the money in question was in their house at the time named, and has since been kept by them, although demanded by the appellant administrator. The issue of fact was formed by general denial, and twice submitted to a jury, the first trial resulting in a disagreement and the second one in a verdict for the defendants upon which judgment was rendered.

Two propositions are relied upon for a reversal of this judgment, both presented by the assignment of error, that the court erred in overruling appellant's motion for a new trial, and both based upon the action of the court in admitting evidence. The existence of the moneys alleged to have been converted was denied. Appellant introduced evidence tending to show that David Bowers, in his lifetime, kept a large sum of money in his bedroom to the knowledge of his wife and appellees Beatsons; that, upon his death, the widow took possession of and kept it and that, upon her death, the Beatsons took it. There was evidence tending to establish the nonexistence of such moneys, and the defendants Beatson and Beatson were, over the objection of appellant, permitted to testify in detail regarding the habits, business methods, and possessions of appellant's decedent. The close and intimate relations which they sustained to him enabled them to testify with persuasive plausibility to facts which were entirely inconsistent with the possession by him of any large sum of money at or prior to or at the time of his death. The objection to the competency of these witnesses is based upon section 506, Burns' Ann. St. 1901, and presents the first question for decision.

By the terms of the statute in suits or proceedings in which an executor or administrator is a party, “involving matters which occurred during the lifetime of the decedent where an allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to issue of record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate.” The appellees Beatsons were parties both to the issue and record, their interest was adverse to that of the estate, the administrator was a party, and they were, by virtue of the statute quoted, not competent witnesses as to “matters which occurred during the lifetime of the decedent.”

The administrator charged them with retaining money belonging to the decedent, the title to which had passed to the personal representative of said dacedent. In Mich. Trust Co. v. Probasco, 29 Ind. App. 109, 63 N. E. 255, the purpose of the action was to secure to an estate property with regard to the existence of which there was no dispute, the controversy being only as to its ownership. In this case there is no controversy, or a minor one at most, as to ownership, the existence of the thing alleged to have been converted, being in issue. The very thing involved is the conversion of money after the death of David Bowers. With regard to this said appellees were competent witnesses, it not being a matter which occurred during the lifetime of the decedent. Whether the decedent had any such personal property while he was living was “a matter involved” in the litigation, since unless he did have it the administrator could not succeed to its ownership, nor the appellees convert...