172 Ind. 370 | Ind. | 1908
Lead Opinion
William P. Leimgruber, being the administrator of his wife’s estate (Mary M. Leimgruber, deceased), filed a personal claim against his decedent’s estate, for money had and received for the benefit of the claimant, for more than $12,000. Deeming the claim of sufficient importance, the court appointed Wickens & Osborn, reputable attorneys, to defend on behalf of the estate. There was no special an
The first question we are called upon to decide is the correctness of the court’s action in overruling appellant’s motion to make the claim more specific.
The complaint was in a single paragraph, and was in these words:
“To money had and received by decedent for the use and benefit of the claimant,
William Leimgruber, from June, 1898, to April, 1906, and which is due and unpaid... $7,445.64
For money paid by the claimant, William Leimgruber, for the use and benefit of the decedent, and at her request to Mary J. Hart and Jessie Woodfill, upon the following dates and for the following amounts, to wit:
Oct. 25, 1898. $395.50
do ......... 400.00
Nov. 22, 1899 367.50
do ........ 400.00
Dec. 6, 1900 291.00
do ........ 509.00
Dec. 23, 1901. 260.46
do ........ 489.54
Jan. 5, 1903 231.00
do ........ 469.00
Jan. 5, 1904 202.94
do ........ 597.06
Jan. 5, 1905 167.16
do ........ 685.00 5,465.16
$12,910.80
That in June, 1898, claimant, William Leimgruber, husband of the decedent, engaged in the saloon business in the city of Greensburg, Indiana, and was engaged in said business in said city continuously until April 26, 1906, the
On the foregoing facts, the court stated conclusions of law, to the effect that the claimant was entitled to recover from his wife’s estate the balance existing in the accounts designated as “Mary M. Leimgruber, Agent,” at the time of her death, and $650 shown to have been paid out of the “agent” account on the personal debt of the decedent, and the cash value of the building and loan stock, amounting in all to $6,771.87. As constituting the basis for the conclusions of law, that the balances in the “special” and “agent” accounts were the property of the claimant, it is directly found that the money paid into the “special” account proceeded from the saloon and lunch business of the claimant, and was kept in the bank by the latter in the name of “Mary M. Leimgruber, Special,” as his own account. It was treated by both as the husband’s money—by the husband, who listed the saloon property for taxation in his own name during the entire period, with the exception of one year, and by checking on the account to meet his family expenses, as well as to maintain the saloon, in short, by the exercise of absolute control and dominion over it; by the wife, who, on the other hand, except for the single instance when she started her “agent” account, treated the “special” as belonging to another. She made no checks against it, no deposits to it, and at the same time maintained in the bank her own undisputed account, designated as “Mary M. Leimgruber, Individual.” The designation of this latter account was, in substance, an acknowledgment on her part that the other two accounts then running in her name in the same bank, namely, the “special” and “agent,” were not her deposits. It was a notice by her that the two latter were to be distinguished from her individual account. The one marked “agent” was a positive declaration that the deposit was not hers, but belonged to a
We find no error. Judgment affirmed.
Rehearing
On Petition for Rehearing.
The most earnest criticism of the opinion, however, is founded upon an evident mistake in the opinion, to the effect that the basis of the conclusions of law was an agreement between the husband and wife that the money proceeding from the saloon business was to be deposited in the bank, in the name and style of “Mary M. Leimgruber, Special,” but that the money should be and remain the property of the husband. The original opinion is modified so as to correct the misleading statement.
We agree with counsel that the law is correctly expressed in Harrell v. Harrell (1889), 117 Ind. 94, and other cases cited to the same point by appellant. The difficulty is, we have no such ease before us as the court was considering in the actions to which we have been referred. In this case, the money claimed was not lent to the wife, was not given to her, and was not placed in her possession, or in the possession of another for her use. In other words, the finding of the court is to the effect that the husband never in any sense parted with his ownership and right to the money. Because he had a dishonest purpose in changing the style of his bank account from his own name to the name of his wife, Mary M. Leimgruber, “Special,” did not of itself create a right in the wife to the account.
An analysis of the figures given in the original opinion, with respect to the wife’s separate estates and income, shows that when she married she was the owner of real estate of the value of $11,000, encumbered by mortgage for $5,650; that by an additional purchase she had increased her real estate, at the time of her death, to the value of $11,650, and reduced her mortgage -encumbrance thereon by $3,501.71, thus showing a betterment of her real estate-, during her mar-: riage, of $4,151.71.
Petition for rehearing overruled.