Succession of Bidwell

Supreme Court of Louisiana

Succession of Bidwell

26 So. 692, 51 La. Ann. 1970, 1898 La. LEXIS 596

Supreme Court of Louisiana·Decided June 22, 1898·No. No. 12,639·Published·Cited by 3 cases

Opinion

(Miller, J., dissenting, filed a separate opinion.)

On application for rehearing, per curiam.

The opinion of the court was delivered by

"Watkins, J.

Louisa J. Bidwell died testate on the 16th day of May, 1897, leaving considerable property situated in New Orleans, Louisiana, and some in Pass Christian, Mississippi, of which she disposed by last will and testament — appointing George K Pratt executor.

Soon after her death, the aforesaid executor produced her will in the Civil District Court for the Parish of Orleans, as that of her domicile, and had same probated and was qualified thereunder.

Not long subsequent to his qualification, a rule was taken by him upon the Whitney National Bank for the production of a certain box in its vault; and to that rule an opposition was filed by John T. Me-[1971]*1971Donald, of Pass Christian, Mississippi, claiming the bank box and its contents.

The demand of opponent is best detailed in the language of the opponent’s answer to the rule, and for that purpose we make the following extracts therefrom, viz:

That he, the said John T. McDonald, is the owner of said bank box, and its contents, to-wit:

“One certain sealed envelope, marked ‘John T. McDonald, Pass " Christian, Miss./ said envelope containing money to the amount “ and of the value of two thousand eight hundred dollars; two ladies’ “ gold watches, one gentleman’s gold watch, one diamond bracelet, two “ old-fashioned flat gold bracelets, one solitaire diamond ring, two long “ nec-k watch chains, one gold necklace with head design, one necklace “locket (design of cross, anchor and heart), one small gold locket “(containing hair), one pair cuff buttons, one Masonic charm (made of “ twenty-dollar gold piece), one pair imitation diamond earrings, one “pair of gold hoop earring's, one'Strawberry diamond breastpin, one “ breastpin, and other small items of jewelry, one chamois purse, with “old-time coins, etc.”

We have, italicized the significant portion of the demand because it appertains to the special and particular object to be attained by his ■opposition, that is to say, the sealed envelope which was contained in the bank box, and marked “John T. McDonald, Pass Christian. Mississippi”, with twenty-eight hundred dollars therein.

We make the further extract from the petition of opposition, for the purpose of emphasizing that statement, viz;

“That the deceased, Louisa J. Bidwell, gave to him all of this property, and all the contents of this bank box, save and except the en- “ velope, the money contained therein, which was the property of the "said John T. McDonald prior to the gift of the hank hox, and had “hceti deposited hy the said John T. McDonald in the said hank hox “ for safe keeping, hy and with the consent of the said Louisa J. Bid-''well; same were given to the said John T. McDonald by the said “ Louisa J. Bidwell on March 26, 1897, she then being sick in bed and “ not being able to obtain the manual possession of said contents of “ the bank box, she gave him the key of said bank box, together with “en order on the Whitney National Bank, to turn over the contents “thereof to him, John T. McDonald; that from and after said date, *" Mrs. Louisa J. Bidwell continued to be sielc and confined to her. [1972]*1972“ house, and a further delivery by her .was thereby rendered impossi- “ ble prior to her death.”

We have, again italicized a similar part of opponent’s demand, for the purpose of limiting the discussion thereto, and of disembarrassing it of unnecessary details.

From the foregoing extracts it is plain, that the opponent claims ownership of the twenty-eight hundred dollars, which were contained in an envelope sealed, endorsed and deposited therein, by a title different from, and of a date anterior to that by which he claimed the bank box and its other contents.

In ether words, that his contention is, that on or about the 23rd of December, 1890, Mrs. Bidwell gave him, by a manual delivery, $2500, in currency, which he placed in an envelope, and endorsed his name and the date of the transaction thereon, and in her presence and with her permission deposited same in her hank box, No. 215, in the safe deposit vault of the Whitney National Bank, for safe keeping — Mrs. Bidwell at the same time placing therein, the sum of five hundred dollars loosely in the box.

That on or about the 3rd o£ March, 1897, Mrs. Bidwell gave him three hundred dollars in addition to the twenty-five hundred dollars, the two sums aggregating twenty-eight hundred dollars; and that on that occasion he opened and destroyed the envelope first described, and deposited the twenty-eight hundred dollars in another one, and with her consent and permission, he placed same in the bank box as before, Laving placed a similar endorsement thereon.

His contention is further to the effect, that on the aforesaid 23rd of December, 1896, Mrs. Bidwell drew out of the New Orleans National Bank the sum of $3,000 on her check and placed same in her bank box in said bank; and that same was sealed up and was about to be returned to its place in the vault of the bank, when an officer of the bank advised her to hire a box in some safe deposit vault. And, acting upon that suggestion she hired a box in the vault of the Whitney Bank, as is above stated.

That when she had done so, she found that her box was too large for the vault box, and, thereupon, she opened her box and transferred its contents to a new one. That it was upon that occasion that Mrs. Bidwell gave him, McDonald, $2,500 of the $3,000 she had that day drawn from the New Orleans National Bank, and which he, in her presence, placed in the envelope and deposited in the bank box.

[1973]*1973That on the 3rd of March, 1897, when she drew out of the New Orleans National Bank the sum of $4,000 on her check for that sum, she gave him, McDonald, $300, and placed the remaining $3,700 in her hank box, together with the $500 she had previously placed therein; and that he, McDonald, placed the $300 she then and there gave.him, in a new envelope, together with the $2,500 she had previously given to him, and deposited, same as aforesaid.

That as the result of these transactions, Mrs. Bidwell had drawn from the New Orleans National Bank wherein she kept an account, the total sum of $7,000; and that of this sum she gave to McDonald $2,800, and retained $4,200 thereof.

For the purpose of identifying the transaction — and for other purlooses not necessary at present to be mentioned — counsel for the executor, over the objection and exception of counsel for the opponent, introduced in evidence the check-stubbs appertaining thereto, and which are of the following tenor, to-wit:

“$3,000.

“December 23, 1896,

“Order of Mrs. L. J. Bidwell, †or to put in bank box 88% three thousand dollars

“$4,000.

“March 3, 1897.

“Order of Mrs. L. J. Bidwell, four thousand dollars to put in bank box in Whitney National Bank, making a total in said bank $7,000.”

Free access — add to your briefcase to read the full text and ask questions with AI