28 Colo. 502 | Colo. | 1901
delivered the opinion of the court.
The parties to this proceeding are the heirs at law and dev
"This will is written by Mrs. Diadamia Haines in her own handwriting September 20th, 1889 in a perfectly sound mind, unsolicited by any one hut feéling my end drawing nigh, in justice to myself and all others concerned in the little estate I have I write my wishes, to be carried out in every letter of the word.
The house I live in South Fourteenth 1435 I bequeath to my daughter Mrs. Annie M. Christie during her lifetime, but should she marry it must be sold and equally divided amongst the heirs of Sidney P. Haines my son, Anna M. Christie my daughter, and the children of my daughter Caroline A. Schroter, now dead. Tho furniture in the house principally belongs to Mrs. Christie, she having bought it with her own money. What little I own in the house of furniture in case of her death will revert back to the heirs. Her own furniture will be exclusively given to her two sons Sidney J. Christie and Daniel H. Christie.
My real estate whatever I leave is to be equally divided amongst the three surviving heirs, Sidney P. Haines, Annie M. Christie, Caroline A. Schroter children, let the amount he more or less. The solid silver I have long since given to Mrs. Christie. I have given Mrs. Schroter the same as given her Mrs. Christie was not gvien her' for particular reasons. The house I leave Annie M. Christie must always he considered a home for Annie Schroter as long as she remains single, or if this home that Annie M. Christie occupies should be sold and she purchase another, the same request must he carried out, that is if Annie Schroter sees fit to accept. As long as my son Sidney lives and his heirs whatever received from my estate is his, hut if he dies and leaves no heirs, his widow shall enjoy the portion of that given from„my estate as long as she lives, but at her death it must revert back if living to tho other heirs of my two children Caroline A. Sehroter and Annie M. Christie.
When I die I want no parade over my funeral; if anything is said over my remains pay him ten dollars; I want none but my own family to follow my remains to my last resting place, no flowers. My.whole life has been for the interest of my children- and grandchildren. May the blessings of God always attend, and that you. may live in love and harmony is the prayer of your mother..
Diadamia Haines.
Witnesses:
J. A. Dean
G. W. Wyatt — 9—23—89
I request that no bonds be given for the • settlement of my estate. A note of $5000.00 of long- standing given to my son Sidney by his mother if presented by dissatisfaction I request him to appropriate it in compensation, as much as will repay him for the settlement of my estate and, his trouble should this amount - be more than his charges what is over give it to Annie Schroter as a legacy from her grandmother, Mrs. Diadamia Haines.”
This will was admitted to probate and plaintiff qualified and ' entered upon the discharge of his duties as executor. Prior to the probate of the will, an arrangement was made by the parties to this proceeding, whereby Mrs. Christie received from the ithers a conveyance to the homestead. Thereafter a dispute arose between them relative to the management of the affairs of deceased by plaintiff during her lifetime, and the character of the transactions between deceased and the parties to this proceeding with respect to the money received by them from her. Mrs. Christie,
1. Note of plaintiff, and interest,...............$17,059.73
2. Note of Taylor & Houghan, and interest,...... 602.20
3. Note of Richards, and interest,............. 148.00
4. Note of Baker, and interest,................. 740.00
5. Note of Annie M. Christie, and interest,...... 3,254.04
6. Note George A. Schroter, and interest........ 1,379.64
7. Note Frank C. Schroter, and interest,........ 3,276.96
8.' Note Sidney H. Schroter, and interest, and %
9. Sidney P. Haines, y% indebtedness of Schroter &
Haines, and interest,........................ 2,381.73
10. Sidney P. Haines book account, and interest... 3,598.69 which, for convenience, we have numbered consecutively from I to 10, inclusive.
In adjusting the accounts, the court charged plaintiff with items 2, 3, 4, 9, and 10, and also an item of $2,679.92, note of T. B. Dean, and interest, amounting in all to the sum of $10,150.54, .which, with his note — item 1 — made the total indebtedness of plaintiff $27,210.27. His distributive share of the estate being 1-3 of the total assets, was $12,737.26, which left him indebted in the sum of $14,473.01. From the distributive share of Mrs. Christie there was deducted the amount of her indebtedness, which left a net balance due her of $9,483.32. By the same method of computation, George A. Schroter was credited with $1167.81; Sidney H. Schroter charged with $543.41; Frank C. Schroter charged with $729.51; Harriet W. Bacon credited with $2,547.45;-Annie D. Patterson credited with $2,547.45. Mrs. Christie was also- decreed to be the owner in fee simple of the homestead. The court further directed that the parties indebted should pay into court the respective sums found to be due from them, and that the sums so paid be distributed among the other parties according to the amounts found to be due them respectively. From this judgment the plaintiff brings the case here for review on error.
The main question is, were the sums of money had by the heirs gifts or advancements, or were they debts to be accounted for to the estate of decedent by the respective heirs? The evidence does not tend to prove that the several amounts which the heirs received during the lifetime of Mrs. Haines were to be treated as gifts. Subsequent to the execution of her will, it appears from the statement of plaintiff that he received large sums of money belonging to deceased; so that her money had not all been dis
The evidence fully supports the finding of the trial court, that no family settlement was effected, as claimed by plaintiff, on account of the conveyance to Mrs. Christie. In fact, there is no testimony tending to prove that there was, and even if the trial court erred, as claimed by plaintiff, in admitting immaterial testimony to prove that there was no such settlement, it was not prejudicial to the rights of plaintiff.
Plaintiff’s claim that the money represented by his own note, was given him by the terms of the will, is not tenable. There is no attempt on the part of the testatrix to make a disposition of her property of the character represented by the transactions growing out of the management of her affairs by plaintiff. Except the note mentioned in the codicil, the personal property referred to in the will consists of furniture, silverware, and some family relies. The other items referred to' realty alone. The clause in the will which recites that “As long as my son Sidney lives and his heirs whatever received from my estate is his,” does not refer to any property which he may have theretofore received at her hands, but to that which he might receive from her estate. If such had not been the intent of the testatrix, she would not have deemed it necessary to add the .codicil. Consequently, there is nothing in the will upon which plaintiff can base the claim that the money which he had received from
Plaintiff offered in evidence the notes of Taylor- & Houghan and W. H. Baker. It is conceded that these notes represent 'funds belonging to the deceased, which plaintiff loaned. There is no evidence that he did not have authority to make these loans. Counsel for defendants in error, in their brief, say: “Nobody ever disputed that the plaintiff was the trustee and agent of his mother to handle these funds, but the question is not whether he was her trustee and handled the funds, but how he handled them; that is the contention.” The' notes in question have never been collected, because, it is claimed on the part of plaintiff that the makers are now insolvent. Having the authority originally to make these loans, he should not have been, charged with the amount of the notes and interests, unless it. appeared that he had been guilty of negligence with respect to such loans. There is no evidence to this effect; and in the state of the record as presented to us, he was improperly charged with the amount of these notes. The notes of - Bichards and Dean Were also charged to plaintiff. His claim is that they have been collected and the money thus received turned over to his mother, • For the purpose of showing these facts, he offered in evidence the books of Schroter & Haines, which he claims exhibited the' account with his mother, including these items. The books were, refused.
On behalf of defendants it is urged that the books were prop
The note of plaintiff had always'remained in his hands. He claims to have paid interest on this note to the amount of $2270, which was evidenced by endorsements thereon in his own handwriting. This credit was not allowed. It is claimed that these endorsements should have been received as evidence for the
The devise to Mrs. Christie was a conditional life estate in the homestead. This was a special bequest. It cannot be taken into account in adjusting matters between the parties. Whatever the value of the interest in this property may be which she received through the conveyance from the other heirs and devisees must be considered, however, unless a state of facts should be disclosed which will relieve her from accounting for this interest. As to whether or not she is now bound to so account, upon the record before us we express no opinion.
Tor the errors mentioned, the judgment must be reversed and the cause remanded for a new trial. We have not noticed all the assignments of error argued, but only such as indicate what matters should be taken into consideration upon a re-trial, and the character of testimony admissible. Each party should be charged with the amount received during the lifetime of Mrs. Haines, with interest thereon (except the original four thousand dollars given each heir when the property on Court Place was sold), and credited with whatever amounts were paid thereon. If it should appear that Mrs. Christie should account for the value of the interest in the homestead which she received through the conveyances from the other heirs and devisees, she should be charged with such value, and the others given credit for their pro rata share. Plaintiff should be credited with all sums which, by competent, satisfactory evidence, he establishes has been disbursed in the discharge of his trust. Each should be credited with his or her distributive share of the assets, and charged with the money or other property received, or money unaccounted for, as the case may be. The ballances thus ascertained will exhibit
Reversed and Remanded.
Mr. Justice Steele not participating.