Horton v. Jack
Before: Fleet
Synopsis
Appeal—Law of the Case.—Where the facts appearing upon a second appeal do not differ from those disclosed npon a former appeal, the decision upon the propositions of law, based upon those facts, rendered upon the former appeal, is the law of the case, and is decisive upon the second appeal.
Estates of Deceased Persons—Transfer of Personal Property by Executrix—Want of Confirmation—Payment of Indebtedness—Conversion by Grantee—Agency for Bank—Liability of President. No sale of any property of a deceased person passes any title unless it is confirmed by the probate court, and it is immaterial whether it was sold to pay a debt of the estate, or a debt of the sole legatee under the will; and if property of the estate is conveyed without confirmation, by the executrix, who is such sole legatee, to the president of a bank to be sold by him, and the proceeds applied to the payment of her debt to the bank, such sale and application of the proceeds to the use of the bank, is an unlawful conversion of the property by him, for which he is individually liable, and the administrator, with the will annexed, may recover from him the value of the property.
Id.—Equities against Executrix as Sole Legatee—Payment of her Debt to Bank—Action for Conversion—Insufficient Defense—• Remedy of Bank.—Equities of the bank against the executrix, who was the widow and sole legatee of the deceased, and who conveyed the property to the president of the bank, under an agreement that it should be sold and the proceeds applied to the payment of her indebtedness to the bank, cannot constitute a defense to an action by the administrator, with the will annexed, to recover the value of the property from the president of the bank, for an unlawful conversion thereof by him to the use of the bank; but such equities must- be asserted upon distribution of the estate, or in some other appropriate proceeding.
Id.—Rights of Administrator to Recover Property of Estate—Indebtedness of Estate not Material.—Until distribution of the estate, the administrator is absolutely entitled to the possession of all the personal property of the estate, and any interference with the property by any person which has the effect of depriving the administrator of the possession is a conversion, and he is entitled to recover therefor without proving an indebtedness to satisfy which the property is necessary.
New Trial—Bill of Exceptions—Date of Service—Amendments—Ob.lection upon Appeal for First Time.—It cannot be objected upon appeal for the first time that the hill of exceptions used on motion for a new trial was served more than ten days after service of the notice of intention to move for a new trial, where it appears that the respondent proposed amendments to the bill, and did not raise the objection in any way in the court below.
Van Fleet, J. This is the second appeal in this case. On the first appeal the cause was remanded for a new trial as between the plaintiff and the defendant Jack. The opinion on that appeal will be found in 37 Pac. Rep. 652, where the facts are fully stated. The second trial resulted in a verdict and judgment for defendant, and plaintiff appeals from the judgment, and from an order denying his motion for a new trial.
It is contended by appellant (and this is the only question which need be considered) that the facts disclosed on the second trial are substantially the same as on the first trial, and that the decision on the former appeal is, therefore, the law of the case, and requires a reversal of the judgment. Respondent claims that the evidence is now substantially different, in that it shows that the debt to pay which the property in controversy was sold, was the debt of the deceased, and not that of Catherine J. Brown; that the executrix had the right to pay that debt from the funds of the estate, although it was not formally presented against the estate, and although such payment was not approved by the probate court; and that the taking of the property to pay that debt did not amount to a conversion.
1. The facts as to the debt in question, as proved on the second trial, did not differ from those disclosed on [32]the first trial. It appeared then, as it does now, that the deceased, in his lifetime, guaranteed the payment by Kenney of such sums as should be advanced to him by the bank of which the defendant Jack was president; that some such advances were made during the lifetime of the deceased; that after his death his widow, Catherine J., made a new guarantee, in her own name, of the like character; and that all the subsequent advances were made under the latter guarantee. It was not then shown, nor is it shown now, what was the amount of the advances made before Brown’s death, further than that it was “between two and three thousand dollars.” It was admitted by the answer that the defendant Jack received of the proceeds of the sale in question, four thousand two hundred and thirteen dollars and ten cents, which he turned over to the bank, and that there still remained unsold a portion of the property of the value of three hundred and sixty-seven dollars and sixty cents. Mr. Jack testified on the second trial that, upon the death of Mr. Brown, Mrs. Brown “ assumed whatever indebtedness there was, and it became her indebtedness,” and that after Mr. Brown’s death he “treated it as her individual indebtedness.” It also appears, as it did before, that no claim against the estate for any portion of this indebtedness was ever presented to the executrix. Under these circumstances, the statement of Mr. Jack, that the proceeds of this sale were used to wipe out the indebtedness of the deceased, James A. Brown, was merely a statement of the conclusion of the witness, not supported by the facts to which he testified. Moreover, the answer (which was not amended in that respect) expressly alleges that the proceeds of the sale were applied and credited upon an indebtedness of Catherine J. Brown to the bank, and that it was originally agreed that they should be so applied; and no mention is made of any indebtedness of the estate. We are, therefore, unable to perceive that the facts on the second trial differ at all from those on which our former opinion was predicated; and the propositions of law there
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