Murray v. Norwood

46 N.W. 499, 77 Wis. 405, 1890 Wisc. LEXIS 214

• Court: Wisconsin Supreme Court
• Decided: September 23, 1890
• Status: Published

Opinion

Cons, O. J.

Tbis is an action of replevin brought by a foreign administrator to recover property belonging to the estate of the testator. It is objected that it did not appear, that the plaintiff bad legal capacity to bring the suit in tbis state. Tbis objection is naturally the one first to be considered. The complaint alleges that in September, 1886, John II. Norwood, who was then a resident of the city of "Washington, in the District of Columbia, died in said city of Washington, and that "on or about the 2d day of February, 188Y, the above plaintiff was duly appointed the administrator of the estate of John II. Norwood, deceased, before the supreme court of the District of Columbia, bold-ing a special term for orphans’ court business, and that thereafter, on the same day, said plaintiff duly quahfied as such administrator, and as such is entitled to the possession of all the personal property belonging to the estate of John H. Norwood, deceased; that before the commencement of the above-entitled action a copy of the original appointment of such plaintiff as such administrator, duly authenticated as required to make the same receivable in evidence, bad been filed in the county court of Milwaukee county, and is now on file therein, etc. The answers denied generally and specifically each and every allegation of the complaint. "

Now, sec. 3267, R. S., provides, in effect, when an executor or administrator shall have been duly appointed in any other state, territory, or country, on the estate of any person not a resident of tbis state at the time of bis death, and no executor or administrator shall have been appointed in tbis state, such foreign executor or administrator, upon filing bis original appointment, or a copy thereof duly authenticated as required to make the same receivable in evidence, in any county court in this state, may thereafter exercise any power over such' estate, . . . prosecute and defend any action relating- thereto, and have all the rights and remedies which an executor or administrator appointed in this state can have or exercise. This provision, which seems to have been fully complied with, removed all disability of the plaintiff to sue in the courts of this state. A copy of his original appointment as administrator, duly authenticated so as to- make the same receivable in evidence, was duly filed in the county court of Milwaukee county ,- but the learned counsel for the defendants insists that this was not a sufficient compliance with the statute, becausehe says such filing should have been in the county court of Sheboygan county, where the property was at the time, and where the action was afterwards brought. We can- ' not concur in this construction of the statute. The manifest intent of the provision seems to be to give the filing of a duly authenticated copy in the county court the same legal effect which would be given to the record of an original appointment made by a court of this state; for the language-is that the copy is to be filed in any county court in the state. It does not say in the county court of a county where there are assets, or where the suit is to be brought. When the proper copy of the original appointment is duly filed in any county court, the foreign administrator or executor is placed upon the same footing -as a domestic administrator- or executor, so far as capacity to sue in our courts-is concerned. He need not take out any new letters of administration, nor obtain any further appointment from the courts of this state, because his authority or title derived from the foreign court is all-sufficient. The statute gives him the right to prosecute and defend all actions relating to his estate, and he can exercise over such estate any power which a domestic administrator or executor would have or could exercise. But before the record is made by the filing of the properly authenticated copy, or by the filing of the original appointment, the disability of the foreign administrator to sue here continues; but -with the record made the disability ceases under the statute. Smith v. Peckham, 39 Wis. 414.

We may likewise add here that see. 4200, R. S., provides, “ whenever a plaintiff shall sue as an executor, administrator, guardian, or trustee, and shall allege in his complaint his due appointment as such, and, if appointed in another state or foreign country, the filing or' recording of the authenticated copy of his appointment as required by the laws of this state, such allegations shall be taken as true, unless specifically denied by the defendant by his answer, duly verified.” There was no denial under oath in the answers of any fact or matter stated in the complaint, and therefore the allegations in regard to the appointment and the filing of the authenticated copy of the same were properly taken as true without proof.

It is further said there is no averment in the complaint that the deceased had any goods or chattels in Milwaukee county, where the duly authenticated copy was filed; but, from the views which we have expressed as to the meaning of the statute, it is clear that no such averment was necessary, nor was it essential to allege that John EL Nor-wood was not a resident of Wisconsin when he died. It is, however, distinctly alleged that he was a resident of the city of Washington when he died; and there is abundant evidence to prove that allegation. We do not cite the testimony which establishes the fact, because it is unnecessary. It will be found in the bill of exceptions, and clearly and conclusively proves the allegation as to residence. Whether sec. 4200, E. S., did not dispense with this proof, in view of the answer, is a question we need not decide. It is sufficient to say that the proof was most satisfactory that John EL Norwood did not reside in this state at the time of his death.

It is further insisted that the court below erred in receiving1 the testimony of the witness Le Saulnier, and permitting it to go to the jury to establish the value of the bonds. The property which the plaintiff seeks to recover the possession of is described in the complaint as $200 in bank-bills and silver, and certain municipal bonds of the city of Atlanta, Georgia, giving the numbers and amounts thereof. The witness testified that he had been engaged in the banking business in Milwaukee for twenty-two years, and had bought and sold municipal bonds, but had never dealt in Atlanta bonds, and had no special knowledge as to their market value; but he was permitted to give an opinion, under objection, as to the market value of Atlanta city bonds maturing in 1902, running at eight p.er cent, interest. We think the testimony of the witness was competent. It comes within the principle of numerous adjudications which admit the opinions of witnesses as to value. The witness was a banker, engaged in buying and selling municipal bonds. He had a general knowledge of the value of such securities from having dealt in them. True, he had not bought and sold Atlanta bonds, nor was it necessary he should in order to qualify him to give an opinion as to their value. His experience and information acquired in the business of banking would enable him. to testify as to the value of such bonds, though he had not dealt in them. “ It is not necessary, in order to qualify one to give an opinion as to values, that his information should be of such a direct character as would make it competent of itself as primary evidence. It is the experience which he acquires in the ordinary conduct of affairs, and from means of information such as are usually relied on by men engaged in business for the conduct of that business, that.qualifies him to testify.” Whitney v. Thacher, 117 Mass. 523. Mr. 'Wharton lays down the same rule, and cites many decisions in his notes to sustain the test. 1 Whart. Ev. § 446. He says, on questions of valuation of' property it is impracticable to lay down any precise line of demarcation between the expert, and .non-expert. The safest course is to permit the examination of all having-experience in or acquaintance with the thing to be valued, leaving their authority to be tested on their cross-examination. We therefore think there was no error in the admisr sion of the evidence, nor in the instruction of the court upon that point. We will furthermore add that the testimony of this witness as to the value of the bonds was really unimportant, as a computation will show that the full amount of the face of the bonds, with interest thereon, was not recovered in the action. So the testimony could not have done the defendants any harm, even if improperly admitted.

It. is further objected that the money and bonds were not sufficiently identified or described so that they could be distinguished from other property of that kind. It was claimed on the part of the plaintiff that the money and bonds in question were put into a tin box at Washington; that the box was locked, and sent'by express to the defendant Josephine Norwood, at Sheboygan Falls. There was evidence tending to prove the numbers and amounts of the bonds, and the denomination of the bank-bills which were placed in the box, and this evidence sufficiently identified and described the property, especially in view of the fact that the defendants presumably had the property in their' possession or under their control, and could have corrected any mistakes made by the plaintiff’s witnesses in the description of it. The witness Gary testified that he helped John H. Norwood to put the bonds and bank-bills of certain denomination in the tin box with other papers, and that the box was then locked, and he himself left it at the express office, directed to the defendant Josephine Norwood, Sheboygan Falls. This showed that this money and these bonds were so placed by the deceased in a box that they could be distinguished from other money and other bonds; and, under the circumstances, the presumption is that the description of the property by the plaintiff’s witnesses was correct, for if it had not been the defendants would have furnished the correct description, as the property was presumably in their possession.

And here we will notice an exception which was taken to that portion of the charge in which the court told the jury that, if they found that the plaintiff was entitled to recover, then the' only testimony in regard to the amount of money which was placed in this box was given by the witness Gary, and that the jury should ascertain and determine from his testimony, and his testimony alone, the amount of money which was deposited in the box and sent, as claimed, to the defendant Josephine Norwood at Sheboy-gan Falls. This direction of the court was correct, for the record does not contain any testimony except that of Gary as to the amount of bills or money which was deposited in the box. True, the defendants both testified that they did not receive in the box $200 in currency, nor any other amount of money, but from the nature of the case they could not and did not contradict Gary as to the money which'was put in the box at Washington. But under the charge of the court the jury must have found that the bonds and money were received by the defendants at She-boygan Falls, and that they were under the control of the defendants when the suit was commenced.

The will of John II. Norwood, purporting to have been probated by the orphans’ court of the District of Columbia, was offered in evidence by the defendants, from which it appeared that Ralph W. Norwood was named as executor therein. Such being the case, it is said no letters of administration could issue to tbe plaintiff; but Ealpb W. Norwood testified tbat be renounced tbe trust, and did not qualify as executor, so letters of administration witb tbe will annexed could properly issue to tbe plaintiff.

A number of exceptions were taken to tbe charge, some of wbicb are covered by tbe observations wbicb we bave made on tbe case, and need not be further noticed. Tbe charge is quite lengthy, and seems to bave submitted all questions of fact under proper instructions to tbe jury. Among other things, tbe court told tbe jury tbat if John H. Norwood, shortly before bis death, or at tbe time it is claimed tbe box was expressed to tbe defendant Josephine Norwood, bad tbe bonds and money in question in bis possession, then tbe presumption was tbat be was tbe owner of the same at tbe time of bis death, and tbat tbe plaintiff was entitled to tbe possession ©f tbe property described. We see no error in this instruction. Tbe possession of personal property is prima faeie proof of ownership, and if tbe box witb tbe bonds and money were deposited in tbe express office in tbe city of Washington, duly addressed to tbe defendant Norwood at Sheboygan Falls, it is prima facie or presumptive evidence tbat tbe property in it, or bonds and money, whatever they were, were in tbe box when it was received at Sheboygan Falls. Tbat presumption will continue until it is shown by evidence tbat no bonds or money were in tbe box. This was tbe charge of tbe court, and tbe court added, if no bonds were received by tbe defendants witb this box at Sheboygan Falls, then they were entitled to a verdict. But if tbe bonds and money in question were in tbe box at tbe time it was received at Sheboygan Falls, it would then be for tbe jury to determine whether or not tbe bonds and money were in tbe possession of tbe defendants or under their control at tbe time of tbe commencement of tbe action. If tbe defendants were in possession of tbe property described in tbe complaint at tbe time tbe box was received, tbe presumption is, unless tbe property was wrongfully disposed of, it was in tbeir possession at tbe tbne of tbe commencement of tbis action. If tbe defendants were in tbe possession of tbe property at tbe time tbe box was received, but bad wrongfully placed tbe bonds or money in question in tbe possession of some one else, for tbe purpose of conceal-, ing tbe same or to prevent tbe plaintiff from recovering possession thereof, then tbe defendants were liable tbe same as if they were in tbe actual possession of the property.

There was a sufficient demand alleged and proven, if any demand were necessary where tbe agent refuses to restore tbe property which be has received for safe-keeping. Tbe letters which were introduced in evidence showed that tbe tin box and contents were more than once demanded of tbe defendants and such demand refused. It is plain, if tbe plaintiff was entitled to recover, be should recover tbe market price of tbe bonds which tbe evidence showed bad been received by tbe defendants. We see no objection to tbe amount of tbe recovery, nor to tbe sufficiency or form of tbe verdict. Tbis disposes of all tbe material questions in tbe case.

By the Oourt.— Tbe judgment of tbe circuit court is affirmed.