Leimgruber v. Leimgruber

On Petition for Rehearing.

Hadley, J.

1. Appellant’s counsel present an extended argument in support of the petition for a rehearing. It is first insisted that this court erred in sustaining the lower court in overruling appellant’s motion to make appellee’s claim more specific. We have carefully read the argument presented by appellant, and reexamined the claim as set out in full in the original opinion, and, considering that the claim fully sets out the nature of the demand, the dates and amounts of the several sums paid for the use of the deceased, the character of the claim for money had and received, and that all that was so claimed were certain deposits made in a local bank, and in a building and *381loan association, as current proceeds from the saloon business, running through a period of more than seven years—all of which were matters of record, made by third parties, and easily accessible as evidence—we are satisfied to abide by the opinion formerly expressed on this point.

The most earnest criticism of the opinion, however, is founded upon an evident mistake in the opinion, to the effect that the basis of the conclusions of law was an agreement between the husband and wife that the money proceeding from the saloon business was to be deposited in the bank, in the name and style of “Mary M. Leimgruber, Special,” but that the money should be and remain the property of the husband. The original opinion is modified so as to correct the misleading statement.

4. The facts shown by the special findings, as set forth in the opinion immediately preceding the statement referred to, clearly show that no such a statement could properly apply to the facts in the case, as determined by the trial court, and must, therefore, have been the result of a misprint, or inadvertence. The court did not find the existence of such an agreement beyond what may be inferred from other facts found, and no such an agreement is necessary, or at all important, to an affirmance of the judgment. It is evident that the wife was not ignorant of the husband’s banking methods, for it is found as a fact by the court that she drew her personal check for $723.77 against the account running in the name of “Mary M. Leimgruber, Special,” and with the proceeds opened a further account in the same bank, in the name of “Mary M. Leimgruber, Agent,” which account she increased from time to time, so that at the time of her death she had to her credit as “agent” the sum of $4,157.82, and which account, the court finds, was created and maintained with money belonging to the husband, and without his knowledge or consent. But it is of no consequence in the case whether the wife did, or did not, have knowledge of the “special” account.

*382We are bound by the facts as the court found them to exist. The findings show that the wife had nothing to do with creating and maintaining the “special” account, beyond yielding a passive assent thereto. The finding is that the account was opened in that style by the husband, and was maintained by him to the time of his wife’s death, with his own money, which proceeded from his own business, and that he never intended to, and never did, give his wife any interest therein.

We agree with counsel that the law is correctly expressed in Harrell v. Harrell (1889), 117 Ind. 94, and other cases cited to the same point by appellant. The difficulty is, we have no such ease before us as the court was considering in the actions to which we have been referred. In this case, the money claimed was not lent to the wife, was not given to her, and was not placed in her possession, or in the possession of another for her use. In other words, the finding of the court is to the effect that the husband never in any sense parted with his ownership and right to the money. Because he had a dishonest purpose in changing the style of his bank account from his own name to the name of his wife, Mary M. Leimgruber, “Special,” did not of itself create a right in the wife to the account.

An analysis of the figures given in the original opinion, with respect to the wife’s separate estates and income, shows that when she married she was the owner of real estate of the value of $11,000, encumbered by mortgage for $5,650; that by an additional purchase she had increased her real estate, at the time of her death, to the value of $11,650, and reduced her mortgage -encumbrance thereon by $3,501.71, thus showing a betterment of her real estate-, during her mar-: riage, of $4,151.71.

Petition for rehearing overruled.