Porter v. Fillebrown

THE COURT Judgment was rendered for plaintiff in the sum of two hundred and ninety-two dollars and thirty-six cents, with interest compounded yearly from the eleventh day of November, 1868. Defendant appeals from the judgment and from an order denying a motion for a new trial.

The appellant certainly makes a pretty strong case, showing that the judgment in this case does an injustice to appellant and to the estate which he represents; but we think that there was evidence sufficient to support the findings of fact, and, taking those findings as true, we cannot see any clear ground for a reversal of the judgment.

The appellant is the grandson of the deceased, Ann M. Fillebrown, who died in 1894. In 1866, when plaintiff was about three years old, he was taken into the family of the deceased in the state of Wisconsin, and was raised, cared for, maintained, and educated by her as one of her own children and at her own expense. He lived with her continuously until he was about fifteen years old, when he went to the state of Nebraska, and remained there two or three years. He then returned to the house of deceased, and shortly afterward came with her to California. He continued to live with the deceased here until after his majority, and about ten years elapsed after his majority before her death. He avers that he always supposed that he was an adopted child of deceased, and did not know that she had ever been his [237]guardian until after her death; and he avers that after her death he discovered that she had been appointed his guardian in Wisconsin in 1868, and that on the eleventh day of November, 1868, she, as his guardian, received from the executors of an uncle of plaintiff, named William H. Fillebrown, the said sum of two hundred and ninety-two dollars and thirty-six cents, money alleged to have come to plaintiff from the estate of William H., through plaintiff’s mother, Mary E. Porter, who was a sister of said William H. He further avers that the deceased fraudulently concealed from him the fact of said guardianship, and the fact that any money was coming to him as aforesaid, and fraudulently mingled said money with her own, so that it cannot now be traced and identified. He presented a claim setting forth these facts to appellant, executor of the estate of Ann M., and the executor having refused to allow the claim respondent brought this suit. All the averments of the complaint were substantially found to be true by the court below.

The evidence that there ever was any money coming to the respondent from the estate of his uncle was, as appellant contends, exceedingly slight, but we think that there was sufficient proof to warrant the court in finding that the deceased, as the guardian of the respondent, received from the executors of said estate and receipted therefor the amount of money named in the complaint; and this being so, it is immaterial to inquire whether or not said money should have gone to the deceased as such guardian. And the finding of the court below, that the deceased did actually receive and retain said money as belonging to the respondent and as his guardian, is an answer to a great many of the points made by appellant as to the preliminary proof that there was such money coming to him. It is admitted and found that the expense incurred by deceased in maintaining respondent during the earlier years of his life far exceeded the amount which she is alleged to have received as his guardian. But the court below refused to allow anything for said expenses: 1. Hpon the ground that they were barred by the statute of limitations (which we think is not tenable), and 2. Because the will of said deceased referring to the respondent contained this clause: “I direct, however, that no charge be made against him for any moneys that I have loaned him and for any expense that I have