Summary
In Jones v. Thomas (1904), 120 Wis. 274, 279, 97 N.W. 950, a controversy arose as to the construction of an agreement for arbitration.
Summary of this case from George J. Meyer Mfg. Co. v. Howard B. C. Co.Opinion
January, 1904.
Judgment affirmed, with costs, upon authority of same case, reported 76 Appellate Division, 596, and upon the opinion of the referee herein. All concurred, except McLennan, P.J., who dissented upon the ground that the referee committed error prejudicial to the plaintiff in permitting the defendants Bullock and Perkins to testify to conversations and personal transactions had with Lydia J. Howell, deceased, of whose estate plaintiff is executrix, under section 829 of the Code of Civil Procedure, because each of said witnesses was interested in the event of the action. Stover, J., concurred with McLennan, P.J., in so far as he holds that the admission of the testimony of the witnesses Bullock and Perkins, referred to, was error, but there being ample evidence outside of the testimony of such witnesses to sustain the findings of the referee, this court on appeal should, under section 993 of the Code of Civil Procedure, disregard such error and affirm the judgment.
The following is the opinion of Charles A. Miller, Esq., referee:
Simon John died in the year 1847, leaving a will by which he bequeathed and devised his residuary estate to his widow, Maria John, for life, "and to be at her disposal after my decease," the remainder to his daughter, Lydia J. Howell, for life, "and then to my grandchildren, the sons and daughters of my daughter Mary Hughes, deceased, and to the children of his daughter Lydia Howell, if any, to be equally divided among them." The testator also appointed his widow, Maria John, his executrix. She duly qualified, and it is undisputed that upon the settlement of her account as executrix she received the net estate, which consisted of a farm in the town of Marcy, and personal property to the amount of $2,982.98. She never disposed of the farm, and there is no evidence that she exercised any power of disposition as to any part of the personal estate. Maria John survived her husband until 1853, when she died intestate, and letters of administration upon her estate issued to Llewelyn D. Howell, her son-in-law, and Edward S. Hughes, her grandson. These administrators caused an inventory to be made of the personal property of their intestate, the items of which, as appraised, amounted to $5,581.64; they then made the following entry on the inventory: "Deduct amount of property left on final settlement of estate of late Simon John, $2,982.98 — $2,598.66." In their final account as administrators they state the amount of the inventory at this sum ($2,598.66), and add to it income amounting to $73.14, and deduct expenses, etc., amounting to $274.17, leaving a net estate of $2,397.63, which they divided among the next of kin. What disposition they made of the $2,982.98 which they deducted from the inventory as being property "left on final settlement of estate of late Simon John" is not disclosed by their account or by any of the records in the Surrogate's Court. Llewelyn D. Howell died in the summer of 1864, leaving a considerable estate, which he devised and bequeathed to his widow, Lydia J. Howell. Edward S. Hughes, the other administrator, survived Howell for some years, but died prior to Lydia Howell, as did all the grandchildren of Simon John, who were entitled to the remainder of his estate after the expiration of the second life estate created by his will. Lydia Howell died in 1899 leaving no descendants, and upon her death, the answering defendants, who are the surviving descendants of the deceased remaindermen, presented to her executors, the plaintiffs in this action, claims to the fund of $2,982.98 belonging to the estate of Simon John, which they allege was in the possession of Lydia J. Howell as life tenant at the time of her death. About the foregoing facts there is no substantial dispute and the question at issue turns largely on the inferences and presumptions which are to be drawn from them. In reaching a conclusion on the subject, I have been greatly aided by other evidence, to which I shall refer, which, while it cannot be said to be entirely undisputed, is at all events not rebutted in any way, and the result arrived at seems to me to be entirely consistent with all the evidence in the case — with that given in behalf of the plaintiffs as well as with that of the defendants. The first question presented is whether or not Maria John during her life expended or consumed any of the corpus of the fund left by her husband. On the previous trials of the action the parties have conceded that under the terms of the will she had the right to do this, but on the present trial no such concession has been made, and it would probably be necessary to determine the true intent of the testator, in this particular, at the outset of the present inquiry, if it were not for the facts which seem to make it clear that she never exercised any right of disposal of the corpus, if she had any. Among the securities left by Simon John, as shown by the inventory of his estate, were the following: Bond and mortgage of David Winston, dated March 26, 1844, $200; promissory note of David Winston, dated May 1, 1845, $100; promissory note of Oriskany Mfg. Co. guaranteed by S. Newton Dexter, dated December 22, 1846, $2,700: promissory note of Jacob Rutt, dated February 1, 1847, $100; promissory note of Jacob Rutt, dated December 31, 1845, $100. Among the securities left by Maria John, as shown by the inventory of her estate, were: Bond and mortgage of David Winston, dated March 28, 1844, and interest, $204.08; promissory note of D. Winston, dated November 25, 1852, and interest, $104.43; promissory note of Oriskany Mfg. Co. with name of S. Newton Dexter as surety, dated March 9, 1853, and interest, $1,024.10; promissory note of Oriskany Mfg. Co., dated March 9, 1852, and interest, $921.69; promissory note of Jacob Rutt, dated January 5, 1848, with interest, $207.31. This, I think, traces satisfactorily $2,400 of this fund, and demonstrates that to that extent Maria John kept it intact, while, as to the balance, the statement made by her administrators on the inventory, and the fact that all persons interested have acquiesced in it by accepting the division made on the settlement of the Maria John estate seem to be conclusive. L.D. Howell, one of the administrators who made the Maria John inventory, appears to have been relied upon and trusted by Maria John during her life. He signs and verifies the petition for the final judicial settlement of her accounts as executrix of her husband, although the petition is made in her name. He appears as a witness on the hearing and testifies: "I wife took care of every, thing from 10 Aug. '44, to 22 Oct. '47. Attended to all business for estate, inventory, sale, proving will, etc." He, therefore, was very probably in a position to know what disposition she had made of the funds received from her husband, and the fact that he deducted the full amount of this fund from the inventory of her assets settles the question and establishes the fact that upon the death of Maria John the corpus of the Simon John estate passed unimpaired into the hands of her personal representatives. The next step in this investigation is to ascertain what these administrators did with this fund. As to Edward Hughes, the answer is easy. He was a cripple, and though at one time he was justice of the peace in his country hamlet, his services to the public in his official character and his efforts in conducting a small grocery store do not seem to have been sufficiently remunerative to support him, and he was dependent upon his brother, with whom he resided, and upon the other relatives, to some extent at least, for his support. Those who knew him best seem to have had no knowledge of his holding any funds belonging to the Simon John or any other estate, and at his death he left no property of any kind except his personal effects. These facts, together with his statement to a Mr. Davies, to which I shall refer, have convinced me that though technically the fund in question came into the joint possession of both the administrators of Maria John, as a matter of fact it never actually came into the hands of Edward Hughes, but instead remained in the possession and control of his coadministrator, L.D. Howell, who was a man of large business experience and, we have seen, familiar from the outset with this estate, and from the outset employed in its management. L.D. Howell then took this fund on the death of Maria John as a mere temporary custodian. It was his duty not to turn it over to the second life owner, his wife, until she gave security for the protection of the remaindermen. This she never did. No administrator with the will annexed of Simon John was appointed, and consequently there was no person to whom he could lawfully pay it over. His duty was to continue to hold it, and in the absence of evidence to the contrary, I must assume that he did so. If there were any question in my mind as to whether this assumption was permissible, it would be set at rest by authority. "The legal presumption from a finding that assets of a decedent had come into the hands of a deceased executor or administrator, is that they are still in the hands of the executor or administrator of the decedent." ( Matter of Seaman, 63 App. Div. 53; citing Jessup Surr. Pr. 690; Matter of Clark, 119 N.Y. 427; Perkins v. Stimmel, 114 id. 359.) We have seen that the funds in suit came into the hands of L.D. Howell, the administrator of Maria John, and the legal presumption, in the absence of all evidence on the subject, is that they remained in his hands, and passed on his death into the possession of his executrix, Lydia Howell. This is quite consistent with the evidence of the witness Mrs. Bullock, who testified to conversations with Lydia Howell, in which the latter said that she had property belonging to the Simon John estate, aside from the farm, and that it would go to the Hugheses after her death. These admissions on Mrs. Howell's part are unnecessary to establish the case for the answering defendants. The legal presumption, above referred to, together with the other practically undisputed facts does that, but they are exceedingly instructive as corroborating the conclusion that the fund eventually passed into Mr. Howell's hands and as showing that she was aware of that fact. Plaintiff's theory seems to be, first, that Maria John expended this fund in her lifetime, and, second, that even if she did not that it was divided among the persons entitled to it by her administrators after her death. The first point I have already considered and disposed of by finding on evidence, which seems to me to be controlling, that she did not so expend it. The second point plaintiff contends is established by the evidence of Thomas J. Davies as to a conversation had by him with Edward Hughes, one of Mrs. John's administrators. His evidence is as follows: "Mr. Hughes first said he was sorry that there was hard feeling existing between the two branches of the family, and he told me that it arose from the division of the estate of Maria John. I asked him what the estate was, he replied, what was left from the Simon John estate to his wife Maria John. He further stated that he was one of the administrators with L.D. Howell; that the balance of the estate, that is, what was left at Maria John's death, had been divided up and all parties had had their share. * * * He said that the property had been equally divided and that there was due himself and family, that is, his brothers and sisters, the so-called farm in Marcy; that under the will of Simon John that Mrs. Howell, Aunt Lydia, was to have the use of it as long as she lived, then it was to go to our side of the family." To me this statement of Edward Hughes seems entirely consistent with defendant's contention, while it falls short of sustaining the theory of the plaintiffs. He apparently did not fully understand the situation, for he says that the estate of Maria John was "what was left from the Simon John estate," and the division which he speaks of, I am convinced, was the division of the Maria John estate which actually took place, and not any division of the corpus of the Simon John estate which Maria had had for life. Apparently he had forgotten about this, or failed to refer to it, if, indeed, he ever fully understood the situation. His description of what was done is just what might have been expected from a man of very meagre business experience who had permitted his more competent coadministrator to attend to the details which he did not wholly grasp, and on the whole strongly confirms my belief that he never actually took possession of the fund of $2,982.98. I cannot feel that this evidence, especially when taken in connection with the other evidence in the case, would sustain a finding that the fund was divided between the owner for life, Mrs. Howell, and the remaindermen, the Hugheses, by mutual agreement. The case has been tried throughout on the theory that the answering defendants, the descendants and next of kin of the original remaindermen, are entitled to recover the fund, if it can be traced, without the intervention of personal representatives of their parents. I am relieved from passing on this question by the stipulation of the parties and, as I believe that the fund came into the possession of the plaintiff's testatrix, I have directed judgment accordingly.
'47.