97 Mich. 398 | Mich. | 1893
The defendant was the special administrator of one Thomas Morgan, deceased. As such he took possession of 22 promissory notes given to said Morgan in his life-time. Some of the notes were secured by chattel and real-estate mortgages. Plaintiff, claiming title to said notes by gift and delivery by Morgan, after demand and refusal on the part of defendant to surrender them, brought this action of. trover to recover their value. The court directed a verdict for defendant, on the ground that plaintiff had failed to establish her ownership of the notes.
The estate inventoried $8,117, of .which the real estate was $4,300, and the notes in question $3,624.75. Morgan
“In case my present housekeeper, Victoria Beilis, shall remain with me as such housekeeper until my death, as her compensation for so doing, in addition to such payments as I make her during life, I give and devise to her that certain lot of land situate in the township of Ray, in said Macomb county, Michigan, known as the Ray Exchange/ and, as well, the two pieces and parcels of land adjoining the said ‘ Ray Exchange/ owned by me, and the further sum of $500. But in case she shall not so remain with me as my housekeeper- until my death, then and in that case she is to have out of my estate only her wages at the rate of one dollar per week.”
After the specific bequests he bequeathed the residue of his estate to all the legatees named in the will, except the plaintiff, to be distributed between them in proportion to the specific legacies given. He died on the 31st day of January following. Plaintiff claims title by gift from Morgan two or three days before his death. Some of the notes were payable to the order of Mr. Morgan, while others were iron-negotiable. None of the notes were indorsed by Morgan, nor were any of the securities assigned to plaintiff; neither was there any written evidence of gift or transfer. Her counsel insist that there was evidence from which a jury would be justified in inferring a completed gift and delivery. It therefore becomes necessary to give the evidence upon which this claim is based.
Plaintiff herself testified that, when defendant came and
One Chester Cooley testified that he had a conversation with Morgan the latter part of December, 1889, about plaintiff and his property; that he said to Morgan, in a laughing and joking way: “‘'The woman is taking care of your house and you in good shape, and you, getting old and feeble as you are, ought to do well for her.’ Says he, 'I have already.’ Says I, ‘What have you done?’ And he says, 'I have given her somewhere near $3,000.’”
One Heydenreich testified that he borrowed $1,000 of Mr. Morgan, June 26, 1889, for which he gave him a note and real-estate mortgage; that Morgan asked plaintiff if he should let witness have it, to which plaintiff replied, “ Yes; ” and that Morgan said that he did not care, for it was her money. After this conversation Morgan loaned witness the money, taking the note and mortgage in his own name.
One Lathrop testified that he had a conversation with Morgan, but he could not fix.the year nor the time of year it occurred, in which he said “if Mrs. Beilis did as well as she had, he’d give her all he had. He told about her doing first rate. I have heard him tell of giving to others.”
One Miller, a brother of plaintiff, testified that Morgan asked him to talk with his sister in regard to going there to keep house for him; that he said, if she would go there and take care of him as long as he lived, he would give her his property; that witness did not communicate this, however, to the plaintiff; that he had heard plaintiff joke Morgan in regard to his having trouble to collect his accounts, and that Morgan said, “Well, when I am gone I would like to see what a time you will have in collecting these notes.”
One Hillock testified that he had a conversation with Morgan the day before he died, in which he said: “‘I have made a will. It is all wrong. There is parties I have left some of my property to that it would not go to if I got able to make a will again/ And he spoke about this lady, his housekeeper. He said she had been very kind to him, and she deserved all he had. He said, ‘I have made some provision for her, but not such as I will do if I recover from this sickness/”
When the defendant and the appraisers went to the house to make an inventory and appraisal of the estate, plaintiff told defendant, before he had alighted from his carriage, that he must not inventory these notes, as they belonged to her; that Morgan had given them to her. She was induced, however, to produce the notes, which she did from a hand-satchel kept in a bureau drawer belonging to Mr. Morgan, and to which she had the key.
The above is the substance of the evidence tending to support the plaintiff’s claim. There are, however, other undisputed facts bearing upon it. On January 28, three days before he died, plaintiff wrote a letter, at Mr. Morgan’s dictation, to Mr. Eldredge, which letter is as follows:
“I wrote you not long since, asking yon to make a change in my executor in my will, — in place of Mr. Mowry, to put in Watson Lyons. I want you to let me know by return mail if you have complied with my request.”
February 3, 1890, plaintiff executed a sworn petition to
Plaintiff’s counsel claim that the notes were given to her by Morgan two or three days previous to his death. The record, however, is barren of any evidence tending to show that he then delivered them. The presumption is that the title remained in him. The testimony of the witnesses Freeman and Hillock shows conclusively that he had not at that time delivered them to her. She was his housekeeper, and was the proper custodian of his papers and property upon the homestead until an administrator was appointed. It was indispensable to the plaintiff’s ownership for her to show by clear and convincing proof, not only that Mr. Morgan had made statements showing an intention to transfer the title, but that he had performed, his intention by actual delivery. The notes were in his house and in his bureau. Under these circumstances, her possession created no presumption hi her'favor. Possession
Judgment affirmed.