72 A. 207 | N.H. | 1909
The defendant's exception to the charge of the court in regard to his liability as the custodian of the money must be overruled. His own testimony tends to show that his mother during her last sickness put him in possession of the money and gave him certain directions as to its disposition after her decease, and that he assumed the custody of it. He also testified that the money was kept upon a certain shelf under a table, that he knew his brother was liable to steal it, that he left his brother in the house for some time while their mother was confined to the bed, and that upon his return he discovered that the money had disappeared. He also submitted other evidence in proof of his claim that his brother stole the money. That evidence of this character was sufficient to prove that he was the custodian of the money, and that, if lost, it was lost through his negligence in caring for it, is too plain for argument. The defendant's exception to the charge raises no other question than the sufficiency of the evidence to sustain the verdict. Nor does his exception to the denial of his motion to set aside the verdict upon the ground that it was not warranted by the evidence present a different question. As the evidence was sufficient, the motions were properly overruled.
The admission of the evidence in relation to the opening of the trunk and its contents at the time of the appraisal does not appear to have been erroneous. The plaintiff in the performance of her *166 duty as the administratrix of her mother's estate was seeking to find such personal property as belonged to the estate, including the money which she supposed her mother had at her decease. She did not know but that the money was in the trunk which, as she testified, she believed was her mother's trunk. The fact that, upon opening it, it contained no money and was not shown to have been the place where the deceased kept her money makes this testimony wholly irrelevant to the issues tried in this case. It has no legitimate tendency to prove that the defendant ever had the money which it is claimed belonged to his mother's estate. But it does not appear to have been prejudicial. The defendant's assertion both before and after the trunk was opened, that its contents did not belong to his mother's estate, but that whatever was in it was his property, was not shown to be untrue by the fact that it contained certain articles which the plaintiff had said were her mother's. Whether the articles belonged to the estate was not in the issue, and the antagonistic claims of the parties in reference to their ownership were not only unimportant in the trial of this case, but they were not prejudicial to the defendant. Nor does the apparent fact that the articles had at some previous time belonged to his mother show that they were not at the time of the appraisal his property, acquired either by sale or gift. The prejudicial character of this incompetent testimony is not apparent.
Exceptions overruled.
All concurred.
