Beckman v. McKay

Citations

• 14 Cal. 250

Syllabus

<p>In suit by an administrator against defendant, for conversion of the property of ithe estate, under the 116th Section of the statute to regulate the settlement of estates, the proof, as to the right, or title, or possession, of plaintiff, and the taking or interference by defendant, being conflicting, it is error to instruct the 'jury that a mere demand on the defendant, and refusal by him to surrender the property, charge him with a conversion.</p> <p>Where, in such suit by an administrator, the complaint averred the facts necessary under the statute to maintain the action, and the answer denied those facts, and áhe .record in this -Court does not contain the facts, but it is agreed by counsel that the proof was conflicting, and the Court below instructed the jury that if they believed from the evidence, that defendant did receive the property mentioned in the complaint, belonging to the estate of ti. deceased, and converted and appropriated to his own use, and refused to deliver the same when demanded, etc. they will find for plaintiif, and it is objected in the Supreme Court that this instruction was wrong, because it ignores all reference to the time of the alienation by defendant, whether before or after the issuing of letters of administration upon the estate of deceased; held, that there being no statement of facts, this Court cannot tell whether there was any discrepancy in the proofs, as to the time of alienation, assuming that there was such alienation; and that in favor of the judgment it must lie presumed, unless there be direct evidence to the contrary, that the Court did not err in giving the instruction in this form, for there may have been no controversy as to the time of alienation, if any was made, though there might have been conflict in the proof as to the fact of alienation, and this the Court left to the jury. . - „</p>