Whitford v. Horn

The opinion of the court was delivered by Brewer, J.: [456] statement of facts. [455] Action of replevin for a watch. Defense, general denial, and claim that the watch belonged to estate [456] of I. Nicklisson, of which defendant was administrator. The testimony is not preserved, and the case is before us upon the pleadings and findings. Judgment was rendered in favor of the plaintiff, and of this, defendant, as plaintiff in error, now complains. Arid first, he claims that upon the facts found, and admitted by the pleadings, judgment should have been in his favor. We think not. The court finds, that in the autumn of 1873, Nicklisson gave the watch to plaintiff, a girl then about twelve years of age, delivered it into her possession, requesting her to keep it and wear it in remembrance of him; that some months thereafter her father induced her to let Nicklisson, who was an old man, have the watch to take care of for her until she should become old enough to have the care of and wear it; that Nicklisson never claimed the watch after his gift, spoke of it to defendant as Mary Horn’s watch, and during his last-sickness directed the delivery of it to her, and that at the time of the gift Nicklisson was solvent. Possession by Whit-ford, and demand by plaintiff, were also found. Titie — -gift, followed by possession. What more was necessary ? That the title passed by the gift accompanied by delivery of possession, is clear. Nicklisson being then solvent, the gift could not be , , ... ’ . get aside by creditors as void against them. Nor does the finding of the condition of Nicklisson’s estate, militate with the finding of his solvency nearly two years prior to his death. He might have had an abundance of property then, and lost or squandered it all before his death. The judgment awarding her the possession of the watch was right. Administratorj personal liability for costs. Again, defendant claims that no judgment should have been rendered against him individually for the costs, as in his answer he disclaimed any property, or right of possession, in. his private capacity, but claimed it , L J 7 only as administrator of Nicklisson’s estate. We think the judgment must stand as it is. He was in the actual possession of the watch, and refused to surrender it to the owner when demanded. She had the right to recover [457] the possession from him as the party in actual possession; and in an action for the recovery of specific personal property, costs are allowed of course to the successful party. (Gen. Stat. 746, §589.) Section 587 applies to cases where there is a full disclaimer. When that is made, there is no need of further litigation. But here, though defendant disclaimed any personal interest, he nevertheless retained possession, and asserted the right thereto as administrator. Perhaps too the court thought that the fact that Nicklis^on spoke of it to him as Mary Horn’s watch, and directed in his last sickness that it be delivered to her, was a sufficient reason under that section for charging him personally with the costs. Whether the costs thus paid by defendant can afterward be allowed as a claim against the estate, will depend upon his good faith in making the defense. If made with full knowledge of plaintiff’s title, and without reasonable warrant therefor, he cannot charge the estate; but if made in good faith, and in honest and reasonable belief that the property belonged to the estate, he may; but that is a question which can be settled in the probate court. The judgment will be affirmed. All the Justices concurring.