Bragg v. Martenstein

KERRIGAN, J.

This is an action brought by Robert Bragg, as one of the executors of the last will and testament of his daughter, Mary Jane Bragg, deceased, against Rebecca Bragg Martenstein, another of his daughters, and the coexecutor of the will of his said deceased daughter, to recover damages for the alleged wrongful conversion of certain stocks, the property of the decedent during her lifetime. The case was tried before the court with a jury; upon the conclusion of the testimony and upon motion of the defendant, the court directed the jury to return their verdict in defendant’s favor, and it is the alleged error of the court in so doing which presents the chief question for consideration upon this appeal.

The facts of the case are practically undisputed, and are chiefly derived from the testimony of the plaintiff himself. They show that the plaintiff was the father of a family of fourteen children, among whom were five daughters, of whom the deceased, Mary Jane Bragg, was the eldest. For many years Mary Jane Bragg was a teacher in the public schools of San Francisco, during which time she accumulated considerable property, about forty thousand dollars worth of which was invested in the stocks and bonds of various corporations. A number of years ago she retired from teaching, and during the latter years of her life was afflicted with an affection of the heart, from which she was likely to die suddenly at any time, and to which, in fact, her decease was due. In the year 1898, Mary Jane Bragg and her father, the plaintiff herein, entered into an understanding and agreement that each of them should prepare or have prepared papers disposing of their respective properties, which were to be placed in their respective packages and that, in case it become apparent to either that the other was about to die, the former should put the contents of the package or envelopes of the one about to die into the possession of the parties to whom their inclosures were addressed. In pursuance of this arrangement, and during the month of February, 1910, Mary o Jane Bragg prepared four envelopes, which contained certain of her stock or bonds, duly indorsed by her; and upon each of said envelopes she wrote the name of one of her said sisters,

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with the statement that the inelosure was her property. She then inclosed each of these envelopes in another envelope addressed to that one of her sisters to whom the inner envelope referred. She also at this time made her will, in which she specifically disposed of the rest of her property, but from which she omitted all reference to the stock and bonds which she had thus placed in their respective envelopes. Her father and her sister, the defendant herein, were made the executors of this will. The envelopes above referred to were placed in an open desk in her room, which was at all times open and available to the plaintiff, in whose home she lived and died. The relation between herself, her father, and her sisters was at all times during her life one of unclouded confidence and affection. About four days before her death, in July, 1910, the plaintiff was in her room, having been informed by her physician that she had but a few more days to live, and he himself believing her to be dying, and believing also that the time had come for carrying out her wishes with respect to these several envelopes and their inclosures, he went to her open desk, and taking from it the four envelopes addressed by his dying daughter to her four sisters respectively, went out and mailed each of them to the person to whom each was thus addressed. On the following day he saw the defendant herein, and learning that she had received her envelope by mail, advised her to have the stocks which it contained transferred at once into her own name upon the books of the several corporations, and he gave the like advice to his other daughters, who acted thereon before their sister’s death. At the time the plaintiff took the several envelopes in question from the desk of his daughter, she was lying propped up in bed, in full view of her desk and of himself, but was apparently asleep. He did not speak to her then as to what he was about to do, or thereafter as to what he had done, because of her dying condition, although her mind remained clear up to the time of her death; nor did her sisters, acting on his advice, directly refer to the fact of their receipt of her gifts, apparently for the same reason. At the time the plaintiff took these several envelopes from his daughter’s desk, they were wrapped, according to the plaintiff’s testimony, in a piece of common brown paper and tied with a piece of common string. This wrapper, he states, he threw into a waste-basket, in another room, without looking closely at it;