87 Mich. 15 | Mich. | 1891
Lead Opinion
I am satisfied that the defendant, Jerome Croul, was a competent witness in this case.
It was admitted upon the argument by plaintiff’s counsel, as it conclusively appears from the record, that the defendant had not converted the bonds in question in this suit to his own individual use, but that he took possession of them for the estate of Chauncey Hurlbut, deceased, and has always held them for- said estate. It appears that on his first step as executor of Chauncey Hurlbut’s estate he inventoried these bonds as the property of such estate, and has ever since accounted to the probate court of Wayne county for them and the interest accruing upon, them.
When we come to examine the question whether or not. Mrs. Williams was a competent witness for the plaintiff it. will be plainly apparent why this suit was planted against Jerome Croul individually, and not against him as' executor. By making him individually the party defendant, the plaintiff has succeeded, under the interpretation of the statute by the court below, to which I shall soon refer, in proving his case by 'the principal heir of Mrs. Hurlbut, and has closed the mouth of Croul against a denial of her story. If this is a correct construction of the statute, then it is capable of being made the instrument of the most outrageous -injustice, when its-enactment was intended to prevent fraud and injustice, and it opens a way by which the estates of deceased persons may be more easily robbed than if no such statute-existed; and that, too, by the testimony of those whom the statute intended to debar from giving, evidence in-their own behalf of facts equally within the knowledge» of the deceased.
The statute, aé it now exists (A&t No. 139, Laws of 1885), having been frequently amended since its first enactmént, reads as follows:
“When a suit or proceeding is prosecuted or defended' by the heirs, assigns, devisees, legatees, or personal rep*18 resentatives of a deceased person, the opposite party, if examined as a witness on Ms own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person: * * * Provided, that whenever the words ‘ the opposite party ’ occur in this section, it shall be deemed to include the assignors or assignees of the claim,- or any part thereof, in controversy.”
It is evident that this statute is intended to reach the real party in interest, and not a mere nominal party, who is not interested in the result of the allowance or disallowance of the claim against the estate of a deceased person, except as it becomes his duty as executor or administrator to prosecute or defend a suit in which the estate is interested. The proviso was attached in 1885, no doubt, for the express purpose of preventing 'the practice, -which prevailed under the statute before such amendment, of assigning the claim against the estate of a deceased person, and then having the assignor sworn as a witness to prove it. The proviso not only cuts off this method of evading it, but also goes further, and prohibits the assignee from testifying, who, in the absence of a fraudulent intent to evade the law in taking the assignment, would be the person to be benefited by the allowance of the claim. It will thus be seen that the Legislature intended not only that the party owning the claim should not be permitted to testify to the matters equally within the knowledge of the deceased person, but also to prevent any evasion of the. statute. It was in this view of the statute that we held in Duryea v. Granger’s Estate, 66 Mich. 593, that an administratrix, if not interested in the estate as heir or otherwise, was not the “opposite party” mentioned in the statute, and against whom its prohibition runs; citing the fact that in Howard v. Patrick, 38 Mich. 795, the administratrix
In the suit which we are considering, the claim against the defendant was established by the .testimony of Mary Ann Williams, who was a niece and heir of Philinda Hurlbut, and Margaret Williams, a daughter of Mary Ann Williams. It appeared clearly from their evidence, before the plaintiff closed his case, that Croul took possession of the bonds and held them as the executor of Chauncey Hurlbut’s estate. Margaret Williams testified that Mrs. Hurlbut called for her bonds, and wanted Croul to bring them back to her; that Croul put her off for a-while, and then said: “ Those bonds were never calculated for you. They belong to Chauncey Hurlbut’s estate;” and that she could not prove that they belonged to her. It was not claimed by any of plaintiff’s witnesses that Croul was trying to get any personal benefit
“Beceived, Detroit, October 1, 1885, from Jerome Croul, 40 coupons of $10 each, $400, cut from four per cent. U. S. bonds belonging to the estate of Ohauncey Hurlbut, deceased.
“Philinda Hurlbut.”
But when Mr. Croul attempted to state the conversation with Mrs. Hurlbut by which he became possessed of the bonds, or any material circumstance connected with his possession or holding of the same, equally within the knowledge of Mrs. Hurlbut, he was prevented from testifying, under the ruling of the court that he was the “opposite party” mentioned in and intended by the statute, and therefore incompetent to give evidence of any fact equally within the knowledge of plaintiff’s intestate. The ruling of the court was erroneous.
Another important question arises in the case: Was Mary Ann Williams a competent witness on behalf of the plaintiff to any facts equally within the knowledge of Chauncey Hurlbut, deceased? She is an heir of Philinda Hurlbut, and, as such, interested in the result of the
I do not deém it necessary to cite adjudications from other states. This is a question depending upon our own statutes, and I think has been settled' by our own Court.
In Howard v. Patrick, 38 Mich. 795, and Duryea v. Granger’s Estate, 66 Id. 593, the reasoning of the opinions would preclude Mrs. Williams from testifying to facts equally within the knowledge of Chauncey Hurlbut, upon the ground that she is an “opposite party” as .against his estate. In the first case the .testimony of Mrs. Howard was rejected. She was an heir of the estate, us well as administratrix. The question was mooted whether. Mrs. Evans, a sister of Mrs. Howard, and equally with her an heir at law of .her father, was a competent witness under the statute. It was passed,
In Bachelder v. Brown, 47 Mich. 366, the real party, who was defending the suit, brought by an executor upon a promissory note, was held to be the real party in interest, and therefore the “opposite party” of the-statute, within its meaning and intent, although he did not appear upon the record as a party to the suit.
In keeping with this principle that the court should look at the real, and not the nominal, parties in a cause, is the case of Wood v. Lenawee Circuit Judge, 84 Mich. 521, where the question to be considered-was an amendment changing the names of parties to a suit. It was there held that the heirs were the real parties to be benefited by the litigation, and that, therefore, the substitution of their names for that of the administrator was admissible.
It was also held in Youngs v. Cunningham, 57 Mich. 153, Mr. Justice Chahplin writing the opinion, which was concurred in by all the members of the Court, that B. F. Cunningham, although not a party to the record, was not a competent witness to testify to facts equally within the knowledge of Geoi’ge Cunningham, deceased, whose wife and children were defending in ejectment, because said B. F. Cunningham had executed to the plaintiff, Youngs, a warranty deed of the land in question. The C°urt said:
“He was under covenant to sustain the title, and the suit was in effect his suit to try the title to the land. If not within the express letter, he comes within the meaning and spirit, of the statute, and is precluded thereby from testifying to facts equally within the knowledge of the deceased.”
“When he assumed to testify to the verbal_agreement [with his wife], his position, if not literally within the terms of the statute against admitting a surviving party to a transaction to testify in certain cases (Comp. Laws 1871, § 5968), was clearly within its policy; and, in my judgment, he was not a proper witness to prove the making of thé contract.''
It will be noticed that the statute since then has been broadened and made more far-reaching by amendments, all of which amendments have been on thq road to reach the real parties in interest, and to preclude them from testifying to facts equally within the knowledge of the dead person, whose estate is sought to be depleted by such testimony in the interest of the party offering it.
The 'court erred in permitting Mary Ann Williams, an heir at law of Mrs. Hurlbut, to give evidence of conversations between Chauncey Hurlbut and his wife, and between said Hurlbut and the witness.
It is argu-ed that the plaintiff had a right to plant, this suit against Jerome Croul individually, that the action is one of bailment, and that' it is doubtful if Croul could dispute the title of his bailor; but, in any event, the estate of Chauncey Hurlbut could not be bound by ;the result of this suit.
The right to plant this suit against Jerome Croul individually may be conceded, but the right to maintain) it depends upon the facts and circumstances proven in the case. In our opinion, it must be conceded that Jerome Croul hads the right to show that he received these bonds of Philinda Hurlbut, of her own free will and consent, and on the understanding that he received
In Hillman v. Schwenk and Miller, 68 Mich. 297, and Hillman v. Schwenk, Id. 301, a similar case, the executor of an estate was permitted to indemnify the defendant, and assume the defense of a suit brought upon a promissory note; and it was.held by so doing the estate would be bound by the result; and, further, that in such case the plaintiff would be precluded from testifying to facts ■equally within the knowledge of the deceased, although ¡the maker of the note was the person sued and the •defendant of record. The issue in those cases was similar to the issue in this. The plaintiff claimed to have ■obtained the note from the testator by purchase before Ms death. The executor defended upon the ground that ¡there was no such purchase. Here the claim to the bonds is that they were a gift. The executor’s defense is that there was no gift. In the Hillman v. Schwenk icases the defendants had no interest in the result, except ¡to pay the note to whom it might be found to belong; .•and in this case Jerome Oroul'individually has and claims mo interest in these bonds. His only concern is to ■account to the owner of them. The defense that he is making is the defense of Jerome Oroul as, executor, which it would have been his duty to have made had the bonds been! in the hands of a third person, and such third person had been made a defendant in this suit instead of <Cronl. He could have stepped in, had the third person
The judgment of the court below must be reversed, and a new trial granted, with costs of this Court to defendant.
Chauncey Hurlbut died September 9, 1885, and the defendant testified that he received the bonds in question of Philinda Hurl-but, September 14, 1885, as the property of -Chauncey Hurlbut, and had always held them as belonging to his estate. The defendant and Philinda Hurlbut were named as executor and executrix in the will, and were appointed as such on the probate of the will, October 18, 1885, and gave the required bond, after which Mrs. Hurlbut took no further part in the administration of the estate.
Dissenting Opinion
(dissenting.) The plaintiff is the administrator of the estate of Philinda -Hurlbut, deceased, and a§,such brought this suit in assumpsit against the defendant to recover the value of 40 .United States government bonds, which plaintiff claims the deceased in her life-time placed in defendant’s hands for safe-keeping, to be redelivered to her on demand; and that she demanded them, and he refused to deliver them to her, but claimed that they were the property of the estate of Ohauncey Hurlbut, deceased, of which he was executor.
Ohauncey Hurlbut, at and prior to July 4, 1885, was the owner of the bonds in question. He had in 1879 made a will, which was after his decease admitted to probate, in which he gave his wife his horses, carriages, household furniture, and $10,000 absolutely, and the income of the estate for her life. After her death a few small bequests were to be paid, and the residue of the estate went to trustees for the perpetual benefit of the Detroit Water-Works. Penny v. Croul, 76 Mich. 471. Ohauncey Hurlbut died September 9, 1885, and his will was admitted to probate October 13, 1885'. He left
It is claimed on the part of the plaintiff that Chauncey Hurlbut, on the 4th day of July, 1885, gave to his wife, Philinda, 40 United States government bonds of the denomination of $1,000 each, and accompanied the gift by immediate personal delivery, in the. presence of Mary A. Williams; and upon the trial of this cause the plaintiff introduced testimony to establish such gift inter vivos. One of the witnesses produced to establish the facts upon which the plaintiff relies for a recovery is Mrs. Mary Ann Williams, and her competency to testify in the cause under the statute presently mentioned is challenged by defendant.
The plaintiff also claims that after Mr. Hurlbut-’s death the defendant, Croul, was at the house of the widow, and was informed by her of the gift to her of the aforesaid bonds, and that defendant, Croul, represented that it was very dangerous to keep such bonds in the house, — that there was danger of their being murdered, — and offered to take care of the bonds by placing them in a safe, and promised, if Mrs. Hurlbut would do-so, that she might cut off the coupons, and that he would deliver them to her whenever she demanded them; and thereupon she delivered them to him for safe-keeping. The exact date at which this occurred is not given by the plaintiff’s witnesses. Margaret Williams testified
Mr. Jerome Croul testified that lie received the bonds in suit on the 14th day of September, 1885, as the property of Chauncey Hurlbut, and that he had always held 'them as the property of Chauncey Hurlbut; that they were received by him from Mrs. Hurlbut, in the presence of John Lund.
The witness Alexander McArthur testified in behalf of the plaintiff that he had a conversation with the defendant about four months after the funeral of Chauncey Hurlbut, in which Croul said that "he had got $40,000 in bonds, of the old lady; and I asked him how he done .that, and he said, 'I got them for safe-keeping/ and that 'she never would smell them .again/” Mr. Croul was sworn in his own behalf, and testified that Mr. Lund was present when he received the bonds from Mrs. Hurlbut; but Lund was not called to dispute or contradict the testimony given by plaintiff’s witnesses as to what transpired on that occasion.
The fact that October 1, 1885, Mrs. Hurlbut signed a receipt for $400 for the coupons, in which Croul had inserted the statement, " Out from four per cent. U. S. bonds belonging to the estate of Chauncey Hurlbut, deceased,” was not conclusive that those bonds belonged to the estate of Chauncey Hurlbut. If the bonds were Mrs. Hurlbut’s individual property, she was entitled to' the interest; and likewise was she entitled if they belonged to the estate, as the will gave her the whole income during her life-time. The defendant was permitted to introduce any evidence which he had to show that the bonds belonged to the estate of Chauncey Hurlbut at the time of his death, and this receipt was competent testimony to be considered as tending to show
It is error to suppose that if Penny, as the administrator of the estate of Mrs. Hurlbut, had brought this action against Croul as executor of the last will of Ohauncey Hurlbut, deceased, he would- have been a competent witness to testify to facts which, if true, were equally within the knowledge of the deceased, Mrs. Hurlbut. The statute is not based upon the interest or disinterestedness of a party who seeks to testify as a witness, but upon the injustice and impropriety of permitting a party to an action with a representative of a. deceased party to testify at all to matters within the knowledge of the deceased, whose executor or administrator has brought or is defending the suit. The mere fact that he is sued as executor would not permit him in a court of law to open his mouth to testify to facts which the other party could not testify to, because his mouth is sealed by death. The law never intended such an absurdity. If it had intended to make an exception in favor of the opposite party who should chance to be appointed executor or administrator, it would have so declared. There is no more reason for repealing the plain provisions of the statute by judicial fiat in favor of executors and administrators than there is in favor of any other disinterested parties; and the law makes no exception in favor of disinterested parties. While the statute has been construed as embracing within its spirit the real as well as nominal parties to a suit, no well-considered case has made an exception of the parties to the record. This will be apparent from a review of our decisions upon that section of the statute.
*29 In the case of Downey v. Andrus, 43 Mich. 65, all of the cases to that time were reviewed.
In Eccard v. Brush, 48 Mich. 3, a suit against executors and trustees, held, that complainant could not testify to matters equally within the knowledge of the deceased.
In Rayburn v. Lumber Co., 57 Mic.h. 273, held, that the opposite party cannot be permitted to testify to matters equally within the knowledge of a deceased officer of the company sued, nor of a deceased partner in a suit against a partnership.
In Foster v. Hill, 55 Mich. 540, the bill was filed by the widow and some of the heirs of a deceased person against another heir to set aside a deed executed by the deceased in his life-time, on the ground that it had been obtained by fraud and forgery. Held, that the parties were excluded from testifying as to matters equally within the knowledge of the deceased. „
In Schratz v. Schratz, 35 Mich. 485, it was held that the statute applies where the knowledge which the deceased had was proved through letters passing between the parties; and it was held, further, that counsel had a right to cross-examine, to ascertain fully with reference to such matters testified to which were equally within the knowledge of the deceased party, and might then move to strike out the whole of such testimony because incompetent under the statute. The testimony elicited on cross-examination is the testimony given in behalf of the party calling the witness.
In Brown v. Bell, 58 Mich. 58, it was held that this statute did not apply to proceedings to probate a will, on the gr'ound that until the will was probated there was no representative of the deceased, and no one who could be called an opposite party to such representative, The same doctrine was held in Schofield v. Walker, 58 Mich. 96.
In McClintock’s Appeal, 58 Mich. 155, it was held that proceedings upon distribution of the estates of deceased persons did not come within the section of the statute, and that all the heirs might be compelled to testify; that it was in effect a suit between the distributees, who each represented his own interest.
In McMillan v. Bissell, 63 Mich. 66, the bill was filed by the executors of the last will of Hugh Moffat, deceased, against the daughter and son-in-law of the deceased.*30 The daughter was the residuary legatee of one share he had left, and the son-in-law was also.a legatee, so far as the share should be applied to an indebtedness due from him to the estate. Held, that they could not testify to any fact equally within the knowledge of the deceased while living.
In Stackable v. Stackable’s Estate, 65 Mich. 515, it was held that a married woman, who had a husband .living, who had boarded the deceased, was not entitled to the money due for board, and could not present a claim therefor against the estate without an assignment from her husband; and that she was an assignee within this statute, which precludes assignees from testifying to facts within the knowledge of the deceased party.
In Buffum v. Porter, 70 Mich. 623, the bill was brought against a purchaser from the heirs of a deceased person. Held, that complainant was not a competent witness.
In Hillman v. Schwenk, 68 Mich. 297, held, that the testator’s personal property vests in the executor for the purpose of administering the estate; and that, where suit was brought upon a note which the defendant claimed belonged to the deceased party at his death, and the executor indemnified the defendant, and took upon himself the defense of the suit, the plaintiff was disqualified from testifying; and held, also, that legatees and devisees do not represent the estate in the prosecution or defense of suits.
In Taylor v. Bunker, 68 Mich. 258, plaintiff brought' suit against an administrator. Held, that the testimony was not rendered admissible by the fact that other parties were present and had knowledge of the matters testified to equally with the deceased.
In Hood v. Olin, 68 Mich. 165, the plaintiff claimed title to certain property as mortgagee under a mortgage by one Nead, and brought replevin against the firm of Ware & Olin. During the pendency .of the suit Ware died. Held, that the statute did not prevent Nead from testifying to matters equally within the knowledge of Ware or the firm.
Bassett v. Shepardson, 52 Mich. 3, announces the general doctrine.
In Singer Manfg. Co. v. Benjamin, 55 Mich. 330, the action was replevin, brought against the defendant individually. Held, that defendant in replevin, under a plea of the general issue, could show that plaintiff had*31 no right to possession when suit was commenced, and for this purpose could show that he was special administrator of a deceased person who was the owner of the goods at the time of his death; and, having shown that he defended in a representative capacity, a witness, who had been agent of the plaintiff corporation, was excluded from testifying to matters which, if true, were equally within the knowledge of the deceased, and which knowledge the witness acquired while he was agent.
In Hillman v. Schwenk, 68 Mich. 293, held that, in a suit brought to recover upon a note made payable to a person- since deceased, indorsed by said deceased in his life-time, and which note, it was claimed, belonged to the deceased at the time of his death, and had been improperly obtained by the plaintiff, and where a legatee was assuming the defense, this fact did not prohibit the plaintiff from testifying as to matters equally within the knowlédge of the deceased.
In M’Cutcheon v. Loud, 71 Mich. 433, plaintiff made a contract with one Gay, who was trustee for a firm of which he was a member. Gay died. Held, that plaintiff could not testify to the contract made with Gay, as the suit was brought against and defended by the surviving partners.
Lautenshlager v. Lautenshlager, 80 Mich. 290, 291, was a proceeding to probate what was claimed to be a will, and it was held that the statute did not apply to such proceedings.
In Wilson v. Wilson’s Estate, 80 Mich. 472, Eliza Wilson presented a claim before the commissioners on claims in the estate of Helen Wilson, deceased. Held, that a daughter of the claimant was a competent witness to testify to matters equally within the knowledge of the deceased.
In Lake v. Nolan, 81 Mich. 115, it was held, in a controversy between an alleged grantee and a widow claiming her dower right, that the statute did not apply.
In Barker v. Hebbard, 81 Mich. 267, after the trial defendant died, and upon the second trial the plaintiff offered to introduce a stenographer's minutes of what plaintiff swore to on the first trial. Held excluded by the statute.
Jackson v. Cole, 81 Mich. 440, was not a suit wherein the representative of the decedent was a party to the record. Plaintiff sued defendant upon a claim against*32 him, assigned to her by her husband in his life-time. Held, that she was a competent witness to testify to the assignment.
In Lyttle v. Railway Co., 84 Mich. 298, held, that testimony of a party is admissible as to matters equally within the knowledge of an agent of a corporation, since deceased, if such matters testified about are also within the knowledge of any surviving officer or agent of the corporation.
There certainly is nothing in these authorities to support the contention that Croul is a competent witness to testify to matters which were equally within the knowledge of Philinda Hurlbut, because he claims these bonds as an executor of "the estate of Chauncey Hurlbut, deceased.
If this reasoning is to prevail which is claimed by the defendant’s counsel, we have a case prosecuted and defended by the representatives-of deceased persons, where the statute says the opposite party shall not be permitted to testify, and yet where they both can testify. The estate cannot testify. The estate is not supposed to be in possession of facts about which it can speak, even if permitted to by the statute. I always supposed that the estate of a deceased person is the property left by the person upon his death, and that the legal title to personal property vested in the executor or administrator, and that the person having the legal title to the property is the real party in interest. It is said that executors are merely agents of the estate, and not parties to the suit. If mere agents, and not parties, then death would have no effect to abate the suit; the party would be still before the court. But, as I read the statute, an agent, though sued, is not exempt from the prohibition of the statute. An agent may possess knowledge of facts which were equally within the knowledge of the deceased, and, if sued by a representative of the deceased as a
The case of Duryea v. Granger’s Estate, 66 Mich. 599, is relied upon to support the contention that Croul is a competent witness. The case was not reversed upon that ground. Two of the Judges merely concurred in reversing, without assenting to the reasons given for the reversal. That was a case of a claim presented against the estate of-a deceased party. This is not.
Counsel for the defendant say in their brief that this “case- may well be entitled cThe Estate of Philinda Hurlbut, Deceased, v. The Estate of Chauncey Hurlbut, Deceased.’” There is no principle of pleading or practice which will authorize a cause to be so entitled, even if it had been against Jerome Croul, executor of the estate of Chauncey Hurlbut, deceased. Cases should be entitled with the names of the parties to the suit. In a suit brought by an executor or administrator, the administrator or executor is the party, and not the estate. The parties to the suit determine how the papers in the suit should be entitled, but the entitling never determines who are the parties. It would be a novel way to determine who is “the opposite party” under the statute by entitling papers in the suit in any particular name. Would a declaration which commenced with “The Estate of Philinda Hurlbut, plaintiff in this suit, files this declaration against the estate of Chauncey Hurlbut in a plea of,” etc., bring any parties before the court? Is there any rule of pleading heretofore discovered that would sanction such pleading? Yet, in order to evade the statute, and build up a fictitious construction, the estate must be invested with an entity, and called a
Before proceeding to th'e determination of the competency of the witnesses, it is necessary to consider the character in which the parties to this suit stand before the court. It is claimed that the question of the competency of the witnesses should be considered as if the suit were instituted against Jerome Croul in his representative capacity as executor of the last will of Chauncey Ilnrlbut. But I do not accede to this proposition. According to his own testimony, he must have received these bonds in his individual capacity, before he was appointed executor, and before the will was admitted to probate. If the bonds were the property of Philinda Hurlbut, it can make no difference how he regarded them. It is possible that she might, after he had collected the avails from the Dnited States, and turned them into the estate, have maintained an action for money had and received against him as executor, so as to be reimbursed out of the assets of the estate. Be
The important issue in the 'suit was, in whom was the paramount title? and this should be borne in mind in
The statute referred to- reads as follows:
“ That when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person.” How. Stat. § 7545.
This suit is prosecuted by plaintiff as the representative of Philinda Hurlbut, deceased, against Jerome Croul in his individual capacity; and, as he is the opposite party, he is excluded by the plain terms of the statute. A judgment in this case will not bind the assets of the estate of Chauncey Hurlbut in the hands of the executor, and cannot be collected by the plaintiff out of such assets. He was therefore not a competent witness to testify to matters equally within the knoAvledge of Philinda Hurlbut. Yerkes v. Blodgett, 48 Mich. 211; Downey v. Andrus, 43 Id. 65; Bassett v. Shepardson, 52 Id. 3.
Bachelder v. Brown, 47 Mich. 366, is cited as supporting the contention of the defendant. That case holds that where an executor brings suit upon negotiable paper, and a third person claims- the paper, and takes upon himself the defense of the suit upon that ground, such
Mrs. Williams was a competent witness for the plaintiff. The suit was not defended by the personal representatives of a deceased party. This disposes of the errors .assigned.
The defendant was permitted to introduce any competent testimony tending to show that the bonds in ■question belonged to the estate of Chauncey Hurlbut, and also that he had always treated them as belonging to the estate; that he had included them in his inventory, and had accounted for both principal and interest to the •éstate. The estate is not yet closed, and if he has acted under a mistake of fact it is presumed it may be rectified.
The court instructed the jury that the plaintiff must ■establish the fact claimed by him that the bonds in
“ If you believe from all the evidence that these bonds, at the time Mr. Hurlbut died, were found in the house, and given to Mr. Oroul after his death, — were not the property of Mrs. Hurlbut, — then your verdict will be for the defendant. If you find from the evidence that they were the property of Mrs. Hurlbut at the time of Mr. Hurlbut’s death, then your verdict will be for the plaintiff/'’
I think the judgment should be affirmed.