Del Barrio v. Sherman

SHINN, J.,

pro tem.

Plaintiff sued the special administrator with general powers of the estate of her deceased former husband, for the value of certain personal property alleged to have been converted by the decedent, after plaintiff’s divorce from him and the execution of a property settlement agreement by which certain personal property was divided between them. Plaintiff had judgment against the special administrator and against Julia Louise Sherman, intervener, sole beneficiary under the will of decedent, for the sum of $4,655.55, as the value of the property alleged to have been converted. Defendant administrator and Julia Louise Sherman, intervener, moved for a new trial. Their motion was denied but in ruling upon the motion the court made amended findings of fact and conclusions of law upon which the judgment in plaintiff’s favor was increased to the sum of $5,232.05. Both defendant and intervener appeal from the original judgment and from this judgment, the appeal of the special administrator being prosecuted by Julia Louise Sherman, as executrix.

Appellants urge the insufficiency of the evidence to support the findings of conversion. They claim that plaintiff’s ownership of the property was not established and that no act of conversion by decedent was proven. We are of the opinion that the evidence was sufficient to justify the decision of these issues in plaintiff’s favor as stated in the original findings. The property consisted of household articles and wearing apparel which were in the home of the parties at the time of their separation. The agreement provided in part that “any and all individual property belonging to either of the parties hereto in the form of household furniture or furnishings or wearing apparel shall be and remain the property of each such party; that in so far as the wedding presents are concerned it is agreed that those gifts which came personally to the party of the first part shall

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belong to her and those which came -directly to the party of the second part shall belong to him, and as to all gifts made by mutual acquaintances, they shall be and remain the property of the party of the first part.” The court took evidence concerning some sixty-two articles claimed by plaintiff, awarded her thirty-nine of such articles and found that the remainder were the property of decedent and belonged to his estate. We deem it unnecessary to recite the substance of this evidence. Plaintiff’s claims to each of the articles awarded to her were supported either by direct or by sufficient circumstantial evidence tending to prove that such articles belonged to that class of property designated as her “individual” property in the agreement of settlement.