Beckman v. McKay

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.

This action is in the nature of an action of trovor and conversion, and is brought under the 116th Section of the statute “to regulate the settlement of the estates of deceased persons.”

The section is as follows: “If any person, before the granting of letters testamentary or of administration, shall embezzle or alienate any of the moneys, goods, chattels, or effects, of any deceased person, he shall be liable to the action of the executor or administrator for double the value of the property so embezzled or alienated.”

The facts are not set out in the record. The ¡Headings show averments on the part of the plaintiff of the facts necessary under the statute to maintain the action, and a denial of those facts by the defendant. Upon this issue it is agreed by the counsel there was conflicting proof—that of the plaintiff tending to maintain, and that of the defendant tending to disprove, the issue tendered by the plaintiff. Upon this state of proofs, the Court gave several instructions, the propriety of which the defendant, who is the Appellant here, questions by this appeal.

1. The first instruction is that if the 'jury believe, from the evidence, that the defendant did receive the property mentioned in the complaint belonging to the estate of William Gcddos, deceased, and converted and appropriated to his own use, and refused to deliver the same when demanded, etc. that they will find for the plaintiff.

It is argued that this instruction was wrong, because it ignores all reference to the time of the alienation, whether before or after the issuing of letters of administration upon the estate of the deceased. But we cannot tell, from a want of the statement of facts, whether there was any discrepancy in the proofs as to the time of the alienation, assuming it to have been made. The instruction does not assume that there was such alienation. It leaves that matter to the jury. But the proof of plaintiff may leave no doubt or question as to the time, if the jury believed it. In favor of the judgment, it is to be presumed, unless there be direct evidence to the contrary, that the Court did not err in giving the charge in this form, for there may have been no con[253]trovorsy as to the timo of alienation, if any was made, though there might have boon a conflict in the proof as to the fact.