Lady v. Barrett

This is an appeal from a judgment, based upon a verdict which the court directed the jury to enter in favor of the plaintiff. Hs, as special administrator of the estate of Mary Barrett, Sr., had brought the action for

The property in question consists of four $5,000 bonds of the United States, which were payable August 1, 1918, and twenty-one checks in the amount of $150 each, representing interest falling due upon the bonds, at quarterly periods, beginning November 1, 1912, and ending August 1, 1918, excepting two checks which normally would have been issued on February 1, 1916, and May 1, 1916. The total value of these securities is $23,150.

All the bonds and checks were found by Mary B. Barrett and her sister Alice among the effects of their father, Patrick C. Barrett, within thirty days after his death at Claremont, California, on November 10, 1938. Each bond is registered and recites that “The United States of America are indebted to Mrs. Mary Barrett, or assigns, in the sum of Five Thousand Dollars.” On the reverse side appears a form providing for an assignment. A notation specifies that the execution and acknowledgment of an assignment when not made at the Treasury Department, must be before a United States judge or other named official of the government. Bach check recites that at the date thereof the payee named in the body of the check is the registered owner of bonds of the “3% Loan of 1908-1918”, amounting to $20,000, and is payable “to the order of Mrs. Mary Barrett”, referred to during the hearing of this case as Mary Barrett, Sr.

Mrs. Barrett died December 12, 1912, and the issue in this trial, held twenty-eight years later, was the ownership of these uncashed securities. Do they belong to the estate of Mary Barrett, Sr., or do they belong to the estate of Patrick Barrett, who was in possession of them at the time he passed away 1 It will be observed that the cheeks are negotiable; the bonds, assignable. Because the bonds, were never assigned in writing the court apparently concluded that they have always remained the property of the estate of Mary Barrett, Sr. This, in fact, is the argument advanced by respondent in support of the judgment and of the withdrawal of the case from the jury’s consideration. That the

When Mrs. Barrett died she was residing at Green River, Wyoming, which had been her home for almost fifty years. She was a widow, and her heirs at law were her daughter Mary, known as Mayme, and her three sons, James, Patrick and Joseph Edward, known as Ed. James is the sole survivor of these four children. He was born in Green River in the year 1870, and has always resided in Wyoming. He

It appeared at the trial that Mary (or Mayme) had been appointed administratrix of her mother’s estate by the superior court in Wyoming in 1913, a position from which she was removed, through proceedings instituted by James a year or so later, on the ground that she had not been duly and regularly appointed. At that time Tom Whitmore, not one of the family, was appointed to succeed her, and at a later date, in 1923, Mayme was reappointed administratrix of the estate of Mary Barrett, and continued as such until her death in 1930. At no time did she or Mr. Whitmore, as representative of the estate, list the bonds or checks as assets thereof, nor did either of them, so far as the record shows, bring an action to secure possession of these securities, or cash any of the checks which were issued after Mrs. Barrett’s death. The two missing quarterly checks for 1916 have not been accounted for in any way, and it does not appear that Mayme Barrett ever attempted to exercise any ownership over the checks or bonds, either as a part owner or as representative of her mother’s estate.

Owing to the fact that, with the exception of James, all the members of the family who were living at the time of Mrs. Barrett’s death have died, and because of the restrictions imposed by the rules of evidence upon the admission of statements of deceased persons, the appellant’s claim of ownership is based largely upon presumptions and inferences which, under section 1957 of the Code of Civil Procedure, are declared to be evidence. Section 1959, Code of Civil Procedure, defines a presumption as “a deduction which the law expressly directs to be made from particular facts ’ ’. The appellant does not rely upon any conclusive presumption as specified in the code, but does contend that certain other presumptions weigh strongly in her favor, and it may be noted that while section 1962 of the Code of Civil Procedure

At the trial only three witnesses appeared, James Barrett, as the sole witness for the respondent, and Mary E. Barrett and her sister Alice, as witnesses for the appellant. James testified that after his wife died in 1935 his brother Patrick lived with him, except for short periods of a month or two, until October, 1928, when he came to Claremont; that he paid no rent, was not employed and, so far as James knew, had no property. He stated that his mother could not read or write and maintained friendly relations with all her children; that following his appointment as administrator in 1938 he learned from the Treasury Department of the United States of the existence of the bonds and checks, and later that they were in the possession of his nieces, Mary and Alice; that he made demand upon them for the securities, which demand was refused. He testified on cross-examination that he was on friendly terms with his sister, although there was litigation between them ending in one or two cases going to the Supreme Court of Wyoming, including one which he brought involving other members of the family also; that he had no idea that the bonds were in existence until he heard from the Treasury Department, but that in 1931, after Mayme had died, he was present at the opening of her lockbox in a Wyoming bank, and that he heard read from a list of contents an interest check of the United States government, payable in the sum of $150 to Mrs. Mary Barrett; that at that time he was looking for the bonds. He stated, under cross-examination, that in 1913 he had Mayme removed as administratrix because of misconduct and neglect; that “she was not

Mary E. Barrett testified to finding the securities in her father’s suitcase in his bedroom at Claremont, and offered to prove, by documentary evidence, as well as by various conversations which she overheard between Patrick and his sister Mayme, that the latter, while she was acting as administratrix of her mother’s estate, made statements that Patrick had the bonds, and that they were in his hands. She also undertook to prove, by conversations which she overheard between Patrick and Mayme, that they were agreed that it would be unwise for Patrick to let James know about the existence of these bonds for fear he would start another lawsuit; also, that during her father’s lifetime she had many conversations with him concerning the bonds, beginning in the year 1920, and continuing until his death, in which he told his daughter that he did not intend to cash the bonds, relating his experience with a bank which went broke, eaus

We deem it unnecessary to determine the many questions raised in the appellant’s brief upon the correctness of rulings concerning the admission of evidence, in view of our conclusion that under the circumstances of this case the evidence was sufficient to warrant its consideration by a jury in determining the ownership of these bonds and checks. This is so particularly as regards the testimony of Alice Barrett relative to the delivery from Mayme to Patrick, by the hand of Alice, of the interest check in 1918. On this point appellant argues, "It was shown that Mayme Barrett delivered one of the checks in question to Patrick C. Barrett, and there is a strong inference that she delivered the others.

Respondent calls our attention to the fact that immediately after a motion for a directed verdict was made in behalf of the plaintiff a similar motion was made in behalf of the defendants in this case, and claims that by reason of that “the court had an absolute right to make the order since the effect thereof was to withdraw from the jury the question of whether plaintiff and respondent was entitled to recover or whether defendants and appellants were entitled to recover.” This view, however, is not supported by the authorities. (See Parker v. James Granger, Inc., 4 Cal. (2d) 668 , 679 [ 52 Pac. (2d) 226 ].)

Without encumbering the record with the multitudinous pronouncements by our appellate courts defining the rule under which a directed verdict may be given, we content our

Judgment is reversed and the cause remanded for a new trial.

Respondent’s petition for a hearing by the Supreme Court was denied May 22, 1941.